Federal Register Vol. 81, No.51,

Federal Register Volume 81, Issue 51 (March 16, 2016)

Page Range13967-14367
FR Document

81_FR_51
Current View
Page and SubjectPDF
81 FR 14365 - Delegation of Authority Under Section 11 of the Export- Import Bank Reauthorization Act of 2012PDF
81 FR 13972 - Cuba: Revisions to License Exceptions and Licensing PolicyPDF
81 FR 13989 - Cuban Assets Control RegulationsPDF
81 FR 13969 - Special Conditions: JAMCO America, Inc., Boeing Model 777-300ER, Dynamic Test Requirements for Single-Occupant Oblique (Side-Facing) Seats With Inflatable RestraintsPDF
81 FR 14092 - Certain Steel Nails From the People's Republic of China: Final Results of Antidumping Duty Administrative Review; 2013-2014PDF
81 FR 14091 - Brass Sheet and Strip From France: Final Results of Antidumping Duty Administrative Review; 2014-2015PDF
81 FR 14111 - Chemical Safety Advisory Committee; Notice of Public MeetingPDF
81 FR 14106 - Certain New Chemicals; Receipt and Status Information for January 2016PDF
81 FR 14114 - Formations of, Acquisitions by, and Mergers of Savings and Loan Holding CompaniesPDF
81 FR 14114 - Formations of, Acquisitions by, and Mergers of Bank Holding CompaniesPDF
81 FR 14119 - National Institute of Neurological Disorders and Stroke; Notice of Closed MeetingPDF
81 FR 14120 - National Institute of Allergy and Infectious Diseases; Notice of Closed MeetingsPDF
81 FR 14118 - National Heart, Lung, and Blood Institute; Notice of Closed MeetingPDF
81 FR 14120 - Center for Scientific Review; Amended Notice of MeetingPDF
81 FR 14117 - Center for Scientific Review; Notice of Closed MeetingsPDF
81 FR 14109 - Dicloran (DCNA); Notice of Receipt of Request To Voluntarily Amend Registrations To Terminate Certain UsesPDF
81 FR 14135 - Exelon Generation Company, LLC; Dresden Nuclear Power Station, Units 1, 2, and 3; Independent Spent Fuel Storage InstallationPDF
81 FR 14025 - Indiana; Ohio; Wisconsin; Disapproval of Interstate Transport Requirements for the 2008 Ozone NAAQSPDF
81 FR 14030 - Receipt of Several Pesticide Petitions Filed for Residues of Pesticide Chemicals in or on Various CommoditiesPDF
81 FR 14113 - Notice of Agreements FiledPDF
81 FR 14000 - Pacific Halibut Fisheries; Catch Sharing PlanPDF
81 FR 14097 - U.S. Air Force Academy Board of Visitors Notice of Meeting; WithdrawalPDF
81 FR 14097 - U.S. Air Force Exclusive Patent LicensePDF
81 FR 14131 - Advisory Committee on Increasing Competitive Integrated Employment for Individuals With Disabilities; Notice of MeetingPDF
81 FR 14134 - Advisory Committee on the Medical Uses of Isotopes; RenewalPDF
81 FR 14090 - Heavy Walled Rectangular Carbon Steel Pipes and Tubes From Mexico: Amended Preliminary Determination of Sales at Less Than Fair ValuePDF
81 FR 14086 - Wooden Bedroom Furniture From the People's Republic of China: Notice of Court Decision Not in Harmony With Final Scope Ruling and Notice of Amended Final Scope Ruling Pursuant to Court DecisionPDF
81 FR 14089 - Seamless Carbon Alloy Steel Standard Line and Pressure Pipes From the People's Republic of China: Continuation of Antidumping Duty Order and Countervailing Duty OrderPDF
81 FR 14087 - Large Power Transformers From the Republic of Korea: Final Results of Antidumping Duty Administrative Review; 2013-2014PDF
81 FR 14175 - Agency Information Collection Activities: Requests for Comments; Clearance of Renewed Approval of Information Collection: Certificated Training Centers-Simulator RulePDF
81 FR 14173 - Office of Commercial Space Transportation; Notice of Availability of the FAA's Finding of No Significant Impact (FONSI) for NASA's Final Supplemental Environmental Assessment for the Antares 200 Configuration Expendable Launch Vehicle at Wallops Flight Facility (SEA)PDF
81 FR 14173 - Thirteenth Meeting: RTCA Tactical Operations Committee (TOC)PDF
81 FR 14225 - Request for Citizens Coinage Advisory Committee Membership ApplicationsPDF
81 FR 14226 - Request for Citizens Coinage Advisory Committee Membership ApplicationsPDF
81 FR 14122 - Sport Fishing and Boating Partnership Council; Call for NominationsPDF
81 FR 14195 - Inspection, Repair, and Maintenance; Periodic Inspection of Commercial Motor Vehicles; Acceptance of Mexico's NOM-068-SCT-2-2014 Inspection ProgramPDF
81 FR 13998 - Lease and Interchange of Vehicles; Motor Carriers of PassengersPDF
81 FR 14115 - Endocrinologic and Metabolic Drugs Advisory Committee; Notice of MeetingPDF
81 FR 14116 - Vaccines and Related Biological Products Advisory Committee; Notice of MeetingPDF
81 FR 14017 - Fisheries of the Exclusive Economic Zone Off Alaska; Pacific Cod by Trawl Catcher Vessels in the Western Regulatory Area of the Gulf of AlaskaPDF
81 FR 14206 - Potential Benefits and Feasibility of Voluntary Compliance; Public Listening SessionsPDF
81 FR 14172 - International Security Advisory Board (ISAB) Meeting; Notice Closed MeetingPDF
81 FR 14084 - Notice of Solicitation of Applications (NOSA); CorrectionPDF
81 FR 14084 - Information Collection Activity; Comment RequestPDF
81 FR 14217 - Proposed Agency Information Collection Activities; Comment RequestPDF
81 FR 14017 - Fisheries of the Exclusive Economic Zone Off Alaska; Pollock in Statistical Area 630 in the Gulf of AlaskaPDF
81 FR 13998 - Federal Acquisition Regulation; Technical Amendment; CorrectionsPDF
81 FR 14133 - Submission for OMB Review, Comment Request, Proposed Collection; Museum Assessment Program EvaluationPDF
81 FR 14132 - Records Schedules; Availability and Request for CommentsPDF
81 FR 14024 - Appliance Standards and Rulemaking Federal Advisory Committee: Notice of Open Meetings for the Circulator Pumps Working Group To Negotiate a Notice of Proposed Rulemaking (NOPR) for Energy Conservation Standards and Test ProceduresPDF
81 FR 14166 - Social Security Ruling 16-3p; Titles II and XVI: Evaluation of Symptoms in Disability ClaimsPDF
81 FR 14127 - Notice of Application for Extension of Public Land Order No. 7233; Opportunity for Public Meeting; OregonPDF
81 FR 14052 - Commercial Driver's License Requirements of the Moving Ahead for Progress in the 21st Century Act and the Military Commercial Driver's License Act of 2012PDF
81 FR 14263 - Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the New Mexico Meadow Jumping MousePDF
81 FR 14126 - Notice of Proposed Withdrawal Extension, Red Rock Canyon State Park; CaliforniaPDF
81 FR 14118 - Submission for OMB Review; 30-Day Comment Request; NIH Information Collection Forms To Support Genomic Data Sharing for Research Purposes (OD)PDF
81 FR 14139 - Criteria and Design Features for Inspection of Water-Control Structures Associated With Nuclear Power Plants; CorrectionPDF
81 FR 14177 - Parts and Accessories Necessary for Safe Operation; Application for an Exemption From Great Lakes Timber Professionals AssociationPDF
81 FR 14208 - Hours of Service of Drivers: Application for Renewal of Illumination Fireworks, LLC and ACE Pyro, LLC Exemptions From the 14-Hour Rule During Independence Day CelebrationsPDF
81 FR 14210 - Qualification of Drivers; Exemption Applications; DiabetesPDF
81 FR 14179 - Qualification of Drivers; Exemption Applications; Diabetes MellitusPDF
81 FR 14189 - Hours of Service of Drivers: National Star Route Mail Contractors Association; Application for ExemptionPDF
81 FR 14190 - Qualification of Drivers; Exemption Applications; VisionPDF
81 FR 14193 - Hours of Service of Drivers: Specialized Carriers & Rigging Association; Application for ExemptionPDF
81 FR 14172 - Canadian Pacific Railway Limited-Petition for Expedited Declaratory OrderPDF
81 FR 14121 - Endangered and Threatened Wildlife and Plants; Draft Revised Recovery Plan for the Piping PloverPDF
81 FR 14197 - Qualification of Drivers; Exemption Applications; Diabetes MellitusPDF
81 FR 14081 - Agency Information Collection Activities: Proposed Collection; Comment Request-Successful Approaches To Reduce Sodium in School MealsPDF
81 FR 14128 - Pecos District Resource Advisory Council Meeting, New MexicoPDF
81 FR 14080 - Agency Information Collection Activities: Proposed Collection; Comment Request-Application of Schools Applying for Recognition Through HealthierUS School Challenge: Smarter LunchroomsPDF
81 FR 14139 - Agency Forms Submitted for OMB Review, Request for CommentsPDF
81 FR 14126 - Eastern States: Filing of Plat of SurveyPDF
81 FR 14122 - Endangered Species Recovery Permit ApplicationsPDF
81 FR 14128 - Certain Amorphous Silica Fabric From China; DeterminationsPDF
81 FR 14129 - Certain Personal Transporters, Components Thereof, and Manuals Therefor; Issuance of a General Exclusion Order, a Limited Exclusion Order, and a Cease and Desist Order, Termination of InvestigationPDF
81 FR 14095 - Draft Guidance for Assessing the Effects of Anthropogenic Sound on Marine Mammal Hearing-Acoustic Threshold Levels for Onset of Permanent and Temporary Threshold ShiftsPDF
81 FR 14131 - Notice of Intent To Grant Exclusive LicensePDF
81 FR 14120 - Agency Information Collection Activities: Accreditation of Commercial Testing Laboratories and Approval of Commercial GaugersPDF
81 FR 14113 - Radio Broadcasting Services; AM or FM Proposals To Change the Community of LicensePDF
81 FR 14226 - Proposed Information Collection (Community Residential Care) Activity: Comment RequestPDF
81 FR 14150 - Submission for OMB Review; Comment RequestPDF
81 FR 14117 - Council on Graduate Medical Education; Notice of MeetingPDF
81 FR 14130 - Notice of Lodging of Proposed Consent Decree Under the Clean Air ActPDF
81 FR 14103 - Henry County Conservation Department; Notice of Surrender of Preliminary PermitPDF
81 FR 14099 - Boott Hydropower, Inc., and Eldred L. Field Hydroelectric Facility Trust; Notice of Application Accepted for Filing and Soliciting Comments, Motions To Intervene, and ProtestsPDF
81 FR 14102 - Notice of Commission or Commission Staff Attendance at Miso MeetingsPDF
81 FR 14100 - Alan C. Richardson; Kris Chahley; Notice of FilingPDF
81 FR 14099 - Combined Notice of FilingsPDF
81 FR 14101 - Combined Notice of Filings #1PDF
81 FR 14223 - Departmental Offices; Privacy Act of 1974, as Amended, System of Records NoticePDF
81 FR 14079 - Peanut Standards BoardPDF
81 FR 14212 - Notice of Request for Proposals for Implementing a High-Speed Rail CorridorPDF
81 FR 14176 - Petition for Exemption; Summary of Petition Received; Burlington Northern Santa Fe RailwayPDF
81 FR 14174 - Petition for Exemption; Summary of Petition Received; Boeing Military Aircraft, Vertical Lift DivisionPDF
81 FR 14174 - Petition for Exemption; Summary of Petition Received; Federal Express CorporationPDF
81 FR 13968 - Air Carrier Contract Maintenance RequirementsPDF
81 FR 14114 - Submission for OMB Review; Comment RequestPDF
81 FR 14022 - Amendment to the Beef Promotion and Research Rules and RegulationsPDF
81 FR 14151 - Proposed Collection; Comment RequestPDF
81 FR 14152 - Proposed Collection; Comment RequestPDF
81 FR 14160 - Self-Regulatory Organizations; NASDAQ OMX PHLX LLC; Notice of Filing of Amendment No. 1 and Order Granting Accelerated Approval of Proposed Rule Change, as Modified by Amendment No. 1, to Make Permanent the Pilot Program Eliminating Minimum Value Sizes for Opening Transactions in New Series of FLEX OptionsPDF
81 FR 14163 - Self-Regulatory Organizations; NYSE Arca, Inc.; Order Instituting Proceedings To Determine Whether to Approve or Disapprove a Proposed Rule Change, as Modified by Amendment No. 1 Thereto, Relating To Listing and Trading of Shares of the Cumberland Municipal Bond ETF Under NYSE Arca Equities Rule 8.600PDF
81 FR 14155 - Self-Regulatory Organizations; NASDAQ BX, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Regarding Fees and Rebates To Adopt the Select Symbols Options Tier SchedulePDF
81 FR 14142 - Self-Regulatory Organizations; The NASDAQ Stock Market LLC; Notice of Filing of Proposed Rule Change Relating to the Listing and Trading of the Shares of the Elkhorn Dorsey Wright Commodity Rotation Portfolio of Elkhorn ETF TrustPDF
81 FR 14097 - 36(b)(1) Arms Sales NotificationPDF
81 FR 14154 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Withdrawal of a Proposed Rule Change To List and Trade Shares of the Global Currency Gold Fund Under NYSE Arca Equities Rule 8.201PDF
81 FR 14153 - Self-Regulatory Organizations; The Options Clearing Corporation; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Simplify the Options Clearing Corporation's Schedule of FeesPDF
81 FR 14072 - Fisheries of the Northeastern United States; Amendment 17 to the Atlantic Surfclam and Ocean Quahog Fishery Management PlanPDF
81 FR 14085 - Notice of Public Meeting of the Michigan Advisory Committee to Discuss Preparations for a Public Hearing Regarding the Civil Rights Impact of Civil Forfeiture Practices in the StatePDF
81 FR 14085 - Notice of Public Meeting of the Missouri Advisory Committee To Discuss Draft Report Resulting From Testimony Received Regarding Civil Rights and Police/Community Interactions in the StatePDF
81 FR 14218 - Decision That Nonconforming Model Year 2008-2010 Alfa Romeo 8C Spider Passenger Cars Are Eligible for ImportationPDF
81 FR 13967 - Oranges and Grapefruit Grown in Lower Rio Grande Valley in Texas; Decreased Assessment RatePDF
81 FR 14021 - Egg Research and Promotion: Updates to Patents, Copyrights, Trademarks, and Information ProvisionsPDF
81 FR 14227 - Notice of Availability of a Draft Environmental Impact Statement for the Reconfiguration of VA Black Hills Health Care System; Comment Period ExtensionPDF
81 FR 14079 - Notice of Meeting of the National Organic Standards BoardPDF
81 FR 14019 - Avocados Grown in South Florida; Increased Assessment RatePDF
81 FR 14175 - Agency Information Collection Activities: Requests for Comments; Clearance of Renewed Approval of Information Collection: Airport Grants ProgramPDF
81 FR 14176 - Agency Information Collection Activities: Requests for Comments; Clearance of Renewed Approval of Information Collection: Notice of Proposed Construction or Alteration, Notice of Actual Construction or Alteration, Project Status ReportPDF
81 FR 14096 - Magnuson-Stevens Act Provisions; General Provisions for Domestic Fisheries; Application for Exempted Fishing PermitsPDF
81 FR 14103 - Pesticide Product Registration; Receipt of Applications for New Active IngredientsPDF
81 FR 14104 - Pesticide Product Registration; Receipt of Applications for New UsesPDF
81 FR 14033 - Expanding Consumers' Video Navigation Choices; Commercial Availability of Navigation DevicesPDF
81 FR 13997 - Commercial Availability of Navigation DevicesPDF
81 FR 14058 - Endangered and Threatened Wildlife and Plants; 90-Day Findings on 29 PetitionsPDF
81 FR 14219 - Hazardous Materials: Notice of Application for Special PermitsPDF
81 FR 14221 - Hazardous Materials: Actions on Special Permit ApplicationsPDF
81 FR 14220 - Hazardous Materials: Delayed ApplicationsPDF
81 FR 14221 - Hazardous Materials: Delayed ApplicationsPDF
81 FR 13994 - Telephone Enrollment in the VA Healthcare SystemPDF
81 FR 13974 - Paroling, Recommitting, and Supervising Federal Prisoners: Prisoners Serving Sentences Under the United States and District of Columbia CodesPDF
81 FR 14229 - State Safety OversightPDF
81 FR 13976 - Procedures for Handling Retaliation Complaints Under Section 31307 of the Moving Ahead for Progress in the 21st Century Act (MAP-21)PDF
81 FR 14327 - Single-Counterparty Credit Limits for Large Banking OrganizationsPDF

Issue

81 51 Wednesday, March 16, 2016 Contents Agricultural Marketing Agricultural Marketing Service RULES Decreased Assessment Rates: Oranges and Grapefruit Grown in Lower Rio Grande Valley in Texas, 13967-13968 2016-05841 PROPOSED RULES Beef Promotion and Research, 14022-14024 2016-05859 Egg Research and Promotion: Updates to Patents, Copyrights, Trademarks, and Information Provisions, 14021-14022 2016-05838 Increased Assessment Rates: Avocados Grown in South Florida, 14019-14021 2016-05834 NOTICES Meetings: National Organic Standards Board, 14079 2016-05835 Requests for Nominations: Peanut Standards Board, 14079-14080 2016-05867 Agriculture Agriculture Department See

Agricultural Marketing Service

See

Food and Nutrition Service

See

Rural Utilities Service

AIRFORCE Air Force Department NOTICES Exclusive Patent License Approvals: Lilo Life, LLC, 14097 2016-05946 Meetings: U.S. Air Force Academy Board of Visitors; Withdrawal, 14097 2016-05947 Children Children and Families Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Multi-Site Evaluation of Project LAUNCH, 14114-14115 2016-05861 Civil Rights Civil Rights Commission NOTICES Meetings: Michigan Advisory Committee, 14085 2016-05845 Missouri Advisory Committee, 14085-14086 2016-05844 Commerce Commerce Department See

Industry and Security Bureau

See

International Trade Administration

See

National Oceanic and Atmospheric Administration

Defense Department Defense Department See

Air Force Department

RULES Federal Acquisition Regulation; Technical Amendment; Corrections, 13998 2016-05920 NOTICES Arms Sales, 14097-14099 2016-05852
Disability Disability Employment Policy Office NOTICES Meetings: Advisory Committee on Increasing Competitive Integrated Employment for Individuals with Disabilities, 14131 2016-05945 Energy Department Energy Department See

Federal Energy Regulatory Commission

PROPOSED RULES Energy Conservation Standards and Test Procedures: Appliance Standards and Rulemaking Federal Advisory Committee: Circulator Pumps Working Group, 14024-14025 2016-05917
Environmental Protection Environmental Protection Agency PROPOSED RULES Air Quality State Implementation Plans; Approvals and Promulgations: Indiana, Ohio, Wisconsin; Disapproval of Interstate Transport Requirements for the 2008 Ozone NAAQS, 14025-14030 2016-05953 Pesticide Petitions Filed for Residues of Pesticide Chemicals in or on Various Commodities, 14030-14033 2016-05952 NOTICES Certain New Chemicals: Receipt and Status Information for January 2016, 14106-14109 2016-05970 Meetings: Chemical Safety Advisory Committee, 14111-14113 2016-05987 Pesticide Product Registration; Receipt of Applications for New Active Ingredients, 14103-14104 2016-05819 Pesticide Product Registration; Receipt of Applications for New Uses, 14104-14106 2016-05818 Request to Voluntarily Amend Registrations to Terminate Certain Uses: Dicloran, 14109-14111 2016-05960 Federal Aviation Federal Aviation Administration RULES Air Carrier Contract Maintenance Requirements, 13968-13969 2016-05862 Special Conditions: JAMCO America, Inc., Boeing Model 777-300ER, Dynamic Test Requirements for Single-Occupant Oblique (Side-Facing) Seats with Inflatable Restraints, 13969-13971 2016-05995 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 14175-14177 2016-05826 2016-05828 Agency Information Collection Activities; Proposals, Submissions, and Approvals: Certificated Training Centers—Simulator Rule, 14175-14176 2016-05939 Environmental Assessments; Availability, etc.: Antares 200 Configuration Expendable Launch Vehicle at Wallops Flight Facility, 14173-14174 2016-05938 Meetings: RTCA Tactical Operations Committee, 14173 2016-05937 Petitions for Exemptions; Summaries: Boeing Military Aircraft, Vertical Lift Division, 14174 2016-05864 Burlington Northern Santa Fe Railway, 14176 2016-05865 Federal Express Corp., 14174-14175 2016-05863 Federal Communications Federal Communications Commission RULES Commercial Availability of Navigation Devices, 13997-13998 2016-05762 PROPOSED RULES Expanding Consumer Video Navigation Choices; Commercial Availability of Navigation Devices, 14033-14052 2016-05763 NOTICES Radio Broadcasting Services: AM or FM Proposals to Change the Community of License, 14113 2016-05882 Federal Energy Federal Energy Regulatory Commission NOTICES Applications: Boott Hydropower, Inc., and Eldred L. Field Hydroelectric Facility Trust, 14099-14100 2016-05874 Combined Filings, 14099, 14101-14102 2016-05870 2016-05871 Filings: Alan C. Richardson, Kris Chahley, 14100-14101 2016-05872 Staff Attendances, 14102-14103 2016-05873 Surrender of Preliminary Permits: Henry County Conservation Department, 14103 2016-05875 Federal Maritime Federal Maritime Commission NOTICES Agreements Filed, 14113-14114 2016-05951 Federal Motor Federal Motor Carrier Safety Administration RULES Lease and Interchange of Vehicles: Motor Carriers of Passengers, 13998-14000 2016-05932 PROPOSED RULES Commercial Driver's License Requirements of the Moving Ahead for Progress in the 21st Century Act and the Military Commercial Driver's License Act of 2012, 14052-14058 2016-05913 NOTICES Commercial Motor Vehicles: Acceptance of Mexico's Inspection Program, 14195-14197 2016-05933 Hours of Service of Drivers; Exemption Applications: Illumination Fireworks, LLC and ACE Pyro, LLC; 14-Hour Rule During Independence Day Celebrations, 14208-14210 2016-05907 National Star Route Mail Contractors Association, 14189-14190 2016-05904 Specialized Carriers and Rigging Association, 14193-14195 2016-05902 Meetings: Potential Benefits and Feasibility of Voluntary Compliance; Public Listening Sessions, 14206-14208 2016-05928 Parts and Accessories Necessary for Safe Operation: Application for an Exemption from Great Lakes Timber Professionals Association, 14177-14179 2016-05908 Qualification of Drivers; Exemption Applications: Diabetes, 14210-14212 2016-05906 Diabetes Mellitus, 14179-14189, 14197-14206 2016-05897 2016-05905 Vision, 14190-14193 2016-05903 Federal Railroad Federal Railroad Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 14217-14218 2016-05924 Request for Proposals for Implementing a High-Speed Rail Corridor, 14212-14217 2016-05866 Federal Reserve Federal Reserve System PROPOSED RULES Single-Counterparty Credit Limits for Large Banking Organizations, 14328-14364 2016-05386 NOTICES Formations of, Acquisitions by, and Mergers of Bank Holding Companies, 14114 2016-05968 Formations of, Acquisitions by, and Mergers of Savings and Loan Holding Companies, 14114 2016-05969 Federal Transit Federal Transit Administration RULES State Safety Oversight, 14230-14262 2016-05489 Fish Fish and Wildlife Service RULES Endangered and Threatened Wildlife and Plants: New Mexico Meadow Jumping Mouse; Designation of Critical Habitat, 14264-14325 2016-05912 PROPOSED RULES Endangered and Threatened Species: 90-day Findings on 29 Petitions, 14058-14072 2016-05699 NOTICES Endangered and Threatened Species: Draft Revised Recovery Plan for the Piping Plover, 14121-14122 2016-05899 Endangered Species Recovery Permit Applications, 14122-14126 2016-05890 Requests for Nominations: Sport Fishing and Boating Partnership Council, 14122 2016-05934 Food and Drug Food and Drug Administration NOTICES Meetings: Endocrinologic and Metabolic Drugs Advisory Committee, 14115-14116 2016-05931 Vaccines and Related Biological Products Advisory Committee, 14116-14117 2016-05930 Food and Nutrition Food and Nutrition Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Application of Schools Applying for Recognition through HealthierUS School Challenge—Smarter Lunchrooms, 14080-14081 2016-05893 Successful Approaches to Reduce Sodium in School Meals, 14081-14084 2016-05895 Foreign Assets Foreign Assets Control Office RULES Cuban Assets Control Regulations, 13989-13994 2016-06018 General Services General Services Administration RULES Federal Acquisition Regulation; Technical Amendment; Corrections, 13998 2016-05920 Health and Human Health and Human Services Department See

Children and Families Administration

See

Food and Drug Administration

See

Health Resources and Services Administration

See

National Institutes of Health

Health Resources Health Resources and Services Administration NOTICES Meetings: Council on Graduate Medical Education, 14117 2016-05877 Homeland Homeland Security Department See

U.S. Customs and Border Protection

Industry Industry and Security Bureau RULES Cuba—Revisions to License Exceptions and Licensing Policy, 13972-13974 2016-06019 Institute of Museum and Library Services Institute of Museum and Library Services NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Museum Assessment Program Evaluation, 14133-14134 2016-05919 Interior Interior Department See

Fish and Wildlife Service

See

Land Management Bureau

International Trade Adm International Trade Administration NOTICES Antidumping or Countervailing Duty Investigations, Orders, or Reviews: Brass Sheet and Strip from France, 14091-14092 2016-05992 Certain Steel Nails from the People's Republic of China, 14092-14095 2016-05994 Large Power Transformers from the Republic of Korea, 14087-14089 2016-05940 Seamless Carbon Alloy Steel Standard Line and Pressure Pipes from the People's Republic of China, 14089-14090 2016-05941 Determinations of Sales at Less than Fair Value: Heavy Walled Rectangular Carbon Steel Pipes and Tubes from Mexico, 14090-14091 2016-05943 Investigations; Determinations, Modifications, and Rulings, etc.: Wooden Bedroom Furniture from the People's Republic of China, 14086-14087 2016-05942 International Trade Com International Trade Commission NOTICES Investigations; Determinations, Modifications, and Rulings, etc.: Amorphous Silica Fabric from China, 14128-14129 2016-05888 Certain Personal Transporters, Components Thereof, and Manuals Therefor, 14129-14130 2016-05887 Justice Department Justice Department See

Parole Commission

NOTICES Proposed Consent Decree under the Clean Air Act, 14130-14131 2016-05876
Labor Department Labor Department See

Disability Employment Policy Office

See

Occupational Safety and Health Administration

Land Land Management Bureau NOTICES Meetings: Pecos District Resource Advisory Council Meeting, New Mexico, 14128 2016-05894 Plats of Surveys: Eastern States; Arkansas, 14126 2016-05891 Public Land Orders: Oregon; Application for Extension, Opportunity for Public Meeting, 14127-14128 2016-05914 Red Rock Canyon State Park; CA; Proposed Withdrawal Extension, 14126-14127 2016-05911 NASA National Aeronautics and Space Administration RULES Federal Acquisition Regulation; Technical Amendment; Corrections, 13998 2016-05920 NOTICES Exclusive Licenses, 14131-14132 2016-05884 National Archives National Archives and Records Administration NOTICES Records Schedules; Availability and Request for Comments, 14132-14133 2016-05918 National Foundation National Foundation on the Arts and the Humanities See

Institute of Museum and Library Services

National Highway National Highway Traffic Safety Administration NOTICES Petitions for Import Eligibility: Nonconforming 2008-2010 Alfa Romeo 8C Spider Passenger Cars, 14218-14219 2016-05843 National Institute National Institutes of Health NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Forms to Support Genomic Data Sharing for Research Purposes, 14118-14119 2016-05910 Meetings: Center for Scientific Review, 14117-14118, 14120 2016-05963 2016-05964 National Heart, Lung, and Blood Institute, 14118 2016-05965 National Institute of Allergy and Infectious Diseases, 14120 2016-05966 National Institute of Neurological Disorders and Stroke, 14119 2016-05967 National Oceanic National Oceanic and Atmospheric Administration RULES Fisheries of the Exclusive Economic Zone Off Alaska: Pacific Cod by Trawl Catcher Vessels in the Western Regulatory Area of the Gulf of Alaska; Closure, 14017-14018 2016-05929 Pollock in Statistical Area 630 in the Gulf of Alaska, 14017 2016-05923 Pacific Halibut Fisheries: Catch Sharing Plan, 14000-14017 2016-05948 PROPOSED RULES Fisheries of the Northeastern United States: Atlantic Surfclam and Ocean Quahog Fishery Management Plan; Amendment 17, 14072-14078 2016-05846 NOTICES Guidance: Assessing the Effects of Anthropogenic Sound on Marine Mammal Hearing—Acoustic Threshold Levels for Onset of Permanent and Temporary Threshold Shifts, 14095-14096 2016-05886 Magnuson-Stevens Act Provisions; General Provisions for Domestic Fisheries: Application for Exempted Fishing Permits, 14096-14097 2016-05823 Nuclear Regulatory Nuclear Regulatory Commission NOTICES Guidance: Criteria and Design Features for Inspection of Water-Control Structures Associated with Nuclear Power Plants; Correction, 14139 2016-05909 Independent Spent Fuel Storage Installation: Exelon Generation Company, LLC; Dresden Nuclear Power Station, Units 1, 2, and 3, 14135-14139 2016-05955 Renewals: Advisory Committee on the Medical Uses of Isotopes, 14134-14135 2016-05944 Occupational Safety Health Adm Occupational Safety and Health Administration RULES Procedures for Handling Retaliation Complaints under the Moving Ahead for Progress in the 21st Century Act, 13976-13989 2016-05414 Parole Parole Commission RULES Paroling, Recommitting, and Supervising Federal Prisoners: Prisoners Serving Sentences under the United States and District of Columbia Codes, 13974-13976 2016-05639 Pipeline Pipeline and Hazardous Materials Safety Administration NOTICES Special Permit Applications, 14219-14223 2016-05686 2016-05687 Special Permit Applications; Delayed More than 180 Days, 14220-14221 2016-05682 2016-05685 Presidential Documents Presidential Documents ADMINISTRATIVE ORDERS Export-Import Bank Reauthorization Act of 2012; Delegation of Authority (Memorandum of March 11, 2016), 14365-14367 2016-06131 Railroad Retirement Railroad Retirement Board NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 14139-14141 2016-05892 Rural Utilities Rural Utilities Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 14084 2016-05925 Funding Availabilities: Household Water Well System Grant Program; Correction, 14084-14085 2016-05926 Securities Securities and Exchange Commission NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 14150-14153 2016-05857 2016-05858 2016-05878 Self-Regulatory Organizations; Proposed Rule Changes: NASDAQ BX, Inc., 14155-14160 2016-05854 NASDAQ OMX PHLX LLC, 14160-14163 2016-05856 NASDAQ Stock Market, LLC, 14142-14150 2016-05853 NYSE Arca, Inc., 14154-14155, 14163-14166 2016-05851 2016-05855 Options Clearing Corp., 14153-14154 2016-05850 Social Social Security Administration NOTICES Rulings: Titles II And XVI—Evaluation Of Symptoms In Disability Claims, 14166-14172 2016-05916 State Department State Department NOTICES Meetings: International Security Advisory Board, 14172 2016-05927 Surface Transportation Surface Transportation Board NOTICES Petitions for Expedited Declaratory Orders: Canadian Pacific Railway Ltd., 14172-14173 2016-05901 Transportation Department Transportation Department See

Federal Aviation Administration

See

Federal Motor Carrier Safety Administration

See

Federal Railroad Administration

See

Federal Transit Administration

See

National Highway Traffic Safety Administration

See

Pipeline and Hazardous Materials Safety Administration

Treasury Treasury Department See

Foreign Assets Control Office

See

United States Mint

NOTICES Privacy Act; Systems of Records, 14223-14225 2016-05868
Customs U.S. Customs and Border Protection NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Accreditation of Commercial Testing Laboratories and Approval of Commercial Gaugers, 14120-14121 2016-05883 U.S. Mint United States Mint NOTICES Requests for Nominations: Citizens Coinage Advisory Committee, 14225-14226 2016-05935 2016-05936 Veteran Affairs Veterans Affairs Department RULES Telephone Enrollment in the VA Healthcare System, 13994-13997 2016-05680 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Community Residential Care, 14226-14227 2016-05881 Environmental Impact Statements; Availability, etc.: Reconfiguration of VA Black Hills Health Care System, 14227 2016-05837 Separate Parts In This Issue Part II Transportation Department, Federal Transit Administration, 14230-14262 2016-05489 Part III Interior Department, Fish and Wildlife Service, 14264-14325 2016-05912 Part IV Federal Reserve System, 14328-14364 2016-05386 Part V Presidential Documents, 14365-14367 2016-06131 Reader Aids

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81 51 Wednesday, March 16, 2016 Rules and Regulations DEPARTMENT OF AGRICULTURE Agricultural Marketing Service 7 CFR Part 906 [Doc. No. AMS-FV-15-0035; FV15-906-1 FIR] Oranges and Grapefruit Grown in Lower Rio Grande Valley in Texas; Decreased Assessment Rate AGENCY:

Agricultural Marketing Service, USDA.

ACTION:

Affirmation of interim rule as final rule.

SUMMARY:

The Department of Agriculture (USDA) is adopting, as a final rule, without change, an interim rule that implemented a recommendation from the Texas Valley Citrus Committee (Committee) to decrease the assessment rate established for the 2015-16 and subsequent fiscal periods from $0.11 to $0.08 per 7/10-bushel carton or equivalent of oranges and grapefruit handled under the marketing order (order). The Committee locally administers the order and is comprised of producers and handlers of oranges and grapefruit operating within the area of production. The interim rule decreased the assessment rate to more closely align assessment income to the lower budgeted expenses.

DATES:

Effective March 17, 2016.

FOR FURTHER INFORMATION CONTACT:

Abigail Campos, Marketing Specialist, or Christian D. Nissen, Regional Director, Southeast Marketing Field Office, Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA; Telephone: (863) 324-3375, Fax: (863) 291-8614, or Email: [email protected] or [email protected]

Small businesses may obtain information on complying with this and other marketing order regulations by viewing a guide at the following Web site: http://www.ams.usda.gov/rules-regulations/moa/small-businesses; or 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:

This rule is issued under Marketing Agreement and Order No. 906, as amended (7 CFR part 906), regulating the handling of oranges and grapefruit grown in the Lower Rio Grande Valley in Texas, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”

The Department of Agriculture (USDA) is issuing this rule in conformance with Executive Orders 12866, 13563, and 13175.

Under the order, orange and grapefruit handlers are subject to assessments, which provide funds to administer the order. Assessment rates issued under the order are intended to be applicable to all assessable oranges and grapefruit for the entire fiscal period, and continue indefinitely until amended, suspended, or terminated. The Committee's fiscal period begins on August 1, and ends on July 31.

In an interim rule published in the Federal Register on November 16, 2015, and effective on November 17, 2015, (80 FR 70669, Doc. No. AMS-FV-15-0035; FV15-906-1 IR), § 906.235 was amended by decreasing the assessment rate established for Texas citrus for the 2015-2016 and subsequent fiscal periods from $0.11 to $0.08 per 7/10-bushel carton or equivalent handled. The decrease in the assessment rate more closely aligns assessment income to the lower budget.

Final Regulatory Flexibility Analysis

Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), the Agricultural Marketing Service (AMS) has considered the economic impact of this rule on small entities. Accordingly, AMS has prepared this final regulatory flexibility analysis.

The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and the rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf.

There are approximately 170 producers of oranges and grapefruit in the production area and 13 handlers subject to regulation under the marketing order. The Small Business Administration defines small agricultural producers as those having annual receipts of less than $750,000, and small agricultural service firms are defined as those whose annual receipts are less than $7,500,000 (13 CFR 121.201).

According to Committee data and information from the National Agricultural Statistics Service, the weighted average grower price for Texas citrus during the 2013-14 season was around $13.89 per box and total shipments were near 7.4 million boxes. Using the weighted average price and shipment information, and assuming a normal distribution, the majority of growers would have annual receipts of less than $750,000. In addition, based on available information, the majority of handlers have annual receipts of less than $7,500,000 and could be considered small businesses under SBA's definition. Thus, the majority of Texas citrus producers and handlers may be classified as small entities.

This rule continues in effect the action that decreased the assessment rate established for the Committee and collected from handlers for the 2015-16 and subsequent fiscal periods from $0.11 to $0.08 per 7/10-bushel carton or equivalent of Texas citrus. The Committee unanimously recommended 2015-16 expenditures of $701,148 and an assessment rate of $0.08 per 7/10-bushel carton or equivalent handled. The assessment rate of $0.08 is $0.03 lower than the previous rate. The quantity of assessable oranges and grapefruit for the 2015-16 fiscal period is estimated at 8 million 7/10-bushel cartons or equivalent. Thus, the $0.08 rate should provide $640,000 in assessment income. Income derived from handler assessments along with interest income and funds from Committee's authorized reserve, will be adequate to cover budgeted expenses. The Committee considered its expenses and recommended decreasing the assessment rate to more closely align assessment income to the lower budget.

This rule continues in effect the action that decreased the assessment obligation imposed on handlers. Assessments are applied uniformly on all handlers and decreasing the assessment rate reduces the burden on handlers.

In addition, the Committee's meeting was widely publicized throughout the Texas citrus industry and all interested persons were invited to attend the meeting and participate in Committee deliberations on all issues. Like all Committee meetings, the June 24, 2015, meeting was a public meeting and all entities, both large and small, were able to express views on this issue.

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the order's information collection requirements have been previously approved by the Office of Management and Budget (OMB) and assigned OMB No. 0581-0189 “Generic Fruit Crops.” No changes in those requirements as a result of this action are necessary. Should any changes become necessary, they would be submitted to OMB for approval.

This action imposes no additional reporting or recordkeeping requirements on either small or large Texas orange and grapefruit handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies.

USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this rule.

Comments on the interim rule were required to be received on or before January 15, 2016. No comments were received. Therefore, for reasons given in the interim rule, we are adopting the interim rule as a final rule, without change.

To view the interim rule, go to: http://www.regulations.gov/#!documentDetail;D=AMS-FV-15-0035-0001.

This action also affirms information contained in the interim rule concerning Executive Orders 12866, 12988, 13175, and 13563; the Paperwork Reduction Act (44 U.S.C. Chapter 35); and the E-Gov Act (44 U.S.C. 101).

After consideration of all relevant material presented, it is found that finalizing the interim rule, without change, as published in the Federal Register (80 FR 70669, November 16, 2015) will tend to effectuate the declared policy of the Act.

List of Subjects in 7 CFR Part 906

Grapefruit, Marketing agreements, Oranges, Reporting and recordkeeping requirements.

PART 906—ORANGES AND GRAPEFRUIT GROWN IN LOWER RIO GRANDE VALLEY IN TEXAS Accordingly, the interim rule amending 7 CFR part 906, which was published at 80 FR 70669 on November 16, 2015, is adopted as a final rule, without change. Dated: March 10, 2016. Elanor Starmer, Acting Administrator, Agricultural Marketing Service.
[FR Doc. 2016-05841 Filed 3-15-16; 8:45 am] BILLING CODE 3410-02-P
DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 11 [Docket No. FAA-2011-1136; Amdt. No. 11-59] RIN 2120-AJ33 Air Carrier Contract Maintenance Requirements AGENCY:

Federal Aviation Administration, DOT.

ACTION:

Final rule; technical amendment.

SUMMARY:

On March 4, 2015, the FAA published a final rule entitled “Air Carrier Contract Maintenance Requirements” which will result in new information collection requirements. This technical amendment updates the FAA's list of OMB control numbers to display the control number associated with the approved information collection activities in the “Air Carrier Contract Maintenance Requirements” final rule.

DATES:

Effective March 16, 2016.

FOR FURTHER INFORMATION CONTACT:

For technical questions concerning this action, contact Wende T. DiMuro, AFS-330, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone (202) 267-1685; email [email protected]

SUPPLEMENTARY INFORMATION: Background

On March 4, 2015, the FAA published a final rule entitled “Air Carrier Contract Maintenance Requirements” (80 FR 11537). This final rule amends the maintenance regulations for domestic, flag, and supplemental operations, and for commuter and on-demand operations for aircraft type certificated with a passenger seating configuration of 10 seats or more (excluding any pilot seat). The new rules require affected air carriers and operators to develop policies, procedures, methods, and instructions for performing contract maintenance that are acceptable to the FAA, and include them in their maintenance manuals. This rule also requires the air carriers and operators to provide a list to the FAA of all persons with whom they contract their maintenance. These changes are needed because contract maintenance has increased to over 70 percent of all air carrier maintenance, and numerous investigations have shown deficiencies in maintenance performed by contract maintenance providers.

This final rule will result in new information collection requirements. As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)), the FAA submitted these information collection amendments to OMB for its review.

On February 25, 2016, OMB approved the information collection request. The OMB control number is 2120-0766.

Technical Amendment

The FAA lists OMB control numbers assigned to its information collection activities in 14 CFR 11.201(b). Accordingly, this technical amendment updates 14 CFR 11.201(b) to display OMB control number 2120-0766 associated with the information collection activities in the final rule, Air Carrier Contract Maintenance Requirements. See 80 FR 11537.

Because this amendment is technical in nature and results in no substantive change, the FAA finds that the notice and public procedures under 5 U.S.C. 553(b) are unnecessary. For the same reason, the FAA finds good cause exists under 5 U.S.C. 553(d)(3) to make the amendment effective in less than 30 days.

List of Subjects in 14 CFR Part 11

Administrative practice and procedure, Reporting and recordkeeping requirements.

The Amendment

In consideration of the foregoing the Federal Aviation Administration amends 14 CFR Chapter I as follows:

PART 11—GENERAL RULEMAKING PROCEDURES 1. The authority citation for part 11 continues to read as follows: Authority:

49 U.S.C. 106(f), 106(g), 40101, 40103, 40105, 40109, 40113, 44110, 44502, 44701-44702, 44711, and 46102.

2. In § 11.201 amend the table in paragraph (b) by revising the entries for Part 121 and Part 135 to read as follows:
§ 11.201 Office of Management and Budget (OMB) control numbers assigned under the Paperwork Reduction Act.

(b) * * *

14 CFR part or section identified and described Current OMB control No. *         *         *         *         *         *         * Part 121 2120-0008, 2120-0028, 2120-0535, 2120-0571, 2120-0600, 2120-0606, 2120-0614, 2120-0616, 2120-0631, 2120-0651, 2120-0653, 2120-0691, 2120-0702, 2120-0739, 2120-0760, 2120-0766. *         *         *         *         *         *         * Part 135 2120-0003, 2120-0028, 2120-0039, 2120-0535, 2120-0571, 2120-0600, 2120-0606, 2120-0614, 2120-0616, 2120-0620, 2120-0631, 2120-0653, 2120-0766. *         *         *         *         *         *         *
Issued in Washington, DC under the authority provided by 49 U.S.C. 106(f) and 44701(a) on March 8, 2016. Lirio Liu, Director, Office of Rulemaking.
[FR Doc. 2016-05862 Filed 3-15-16; 8:45 am] BILLING CODE 4910-13-P
DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 25 [Docket No. FAA-2015-8298; Special Conditions No. 25-611-SC] Special Conditions: JAMCO America, Inc., Boeing Model 777-300ER, Dynamic Test Requirements for Single-Occupant Oblique (Side-Facing) Seats With Inflatable Restraints AGENCY:

Federal Aviation Administration (FAA), DOT.

ACTION:

Final special condition; request for comments.

SUMMARY:

These special conditions are issued for the Boeing Model 777-300ER airplane. This airplane, as modified by JAMCO America, Inc. (JAMCO), will have a novel or unusual design feature associated with side-facing, oblique seats equipped with inflatable restraints. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for occupants of seats installed at an angle of greater than 18 degrees, but substantially less than 90 degrees, to the centerline of the airplane, nor for airbag devices. These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.

DATES:

This action is effective on March 16, 2016. We must receive your comments by May 2, 2016.

ADDRESSES:

Send comments identified by docket number FAA-2015-8298 using any of the following methods:

Federal eRegulations Portal: Go to http://www.regulations.gov/ and follow the online instructions for sending your comments electronically.

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

Hand Delivery or Courier: Take comments to Docket Operations in Room W12-140 of the West Building Ground Floor at 1200 New Jersey Avenue SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

Fax: Fax comments to Docket Operations at 202-493-2251.

Privacy: The FAA will post all comments it receives, without change, to http://www.regulations.gov/, including any personal information the commenter provides. Using the search function of the docket Web site, anyone can find and read the electronic form of all comments received into any FAA docket, including the name of the individual sending the comment (or signing the comment for an association, business, labor union, etc.). DOT's complete Privacy Act Statement can be found in the Federal Register published on April 11, 2000 (65 FR 19477-19478), as well as at http://DocketsInfo.dot.gov/.

Docket: Background documents or comments received may be read at http://www.regulations.gov/ at any time. Follow the online instructions for accessing the docket or go to Docket Operations in Room W12-140 of the West Building Ground Floor at 1200 New Jersey Avenue SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT:

John Shelden, Airframe and Cabin Safety, ANM-115, Transport Airplane Directorate, Aircraft Certification Service, 1601 Lind Avenue SW., Renton, Washington 98057-3356; telephone 425-227-2785; facsimile 425-227-1320.

SUPPLEMENTARY INFORMATION:

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

The FAA therefore finds that good cause exists for making these special conditions effective upon publication in the Federal Register.

Comments Invited

We invite interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data.

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

Background

On April 15, 2015, through FAA project no. JAST1977-0, JAMCO applied for a supplemental type certificate to allow the installation of oblique passenger seats, installed at a 43-inch pitch and at an angle of 30 degrees to the vertical plane of the airplane longitudinal centerline, and to include inflatable lap belts, in Boeing Model 777-300ER airplanes. The Boeing Model 777-300ER airplane is a wide-body, swept-wing, conventional-tail, twin-engine, turbofan-powered transport airplane, with seating capacity for 550 passengers.

JAMCO proposes the installation of oblique (side-facing) B/E Aerospace Super Diamond business-class seats. These seats will include airbag devices for occupant restraint and injury protection.

Type Certification Basis

Under the provisions of 14 CFR 21.101, JAMCO America, Inc., must show that the Model 777-300ER airplane, as changed, continues to meet the applicable provisions of the regulations incorporated by reference in type certificate no. T00001SE or the applicable regulations in effect on the date of application for the change. The regulations listed in the type certificate are commonly referred to as the “original type certification basis.” The regulations listed in type certificate no. T00001SE are as follows:

Sections 25.562 and 25.785; and special conditions no. 25-295-SC for single-occupant, side-facing seats.

In addition, the certification basis includes certain special conditions, exemptions, or later amended sections of the applicable part that are not relevant to these special conditions.

If the Administrator finds that the applicable airworthiness regulations (i.e., 14 CFR part 25) do not contain adequate or appropriate safety standards for the Boeing Model 777-300ER airplane because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

Special conditions are initially applicable to the model for which they are issued. Should the applicant apply for a supplemental type certificate to modify any other model included on the same type certificate to incorporate the same novel or unusual design feature, these special conditions would also apply to the other model under § 21.101.

In addition to the applicable airworthiness regulations and special conditions, the Boeing Model 777-300ER airplane must comply with the fuel-vent and exhaust-emission requirements of 14 CFR part 34, and the noise-certification requirements of 14 CFR part 36.

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

Novel or Unusual Design Features

The Boeing Model 777-300ER airplane, as modified by JAMCO will incorporate the following novel or unusual design features:

Installation of B/E Aerospace Super Diamond business-class seats manufactured by B/E Aerospace, to be installed at an angle of 30 degrees to the airplane centerline. These seats will include airbag devices for occupant restraint and injury protection. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for occupants of seats installed in the proposed configuration.

The seating configuration JAMCO proposes is novel and unusual due to the seat installation at 30 degrees to the airplane centerline, the airbag-system installation, and the seat/occupant interface with the surrounding furniture that introduces occupant alignment and loading concerns.

Ongoing research is progressing to establish acceptable occupant-injury limits. Until those limits become available, the FAA proposes a set of interim limits based on the current literature available, current National Highway Traffic Safety Administration (NHTSA) regulations, and preliminary test data from the research program.

The existing regulations do not provide adequate or appropriate safety standards for occupants of oblique-angled seats with airbag systems. To provide a level of safety that is equivalent to that afforded occupants of forward- and aft-facing seats, additional airworthiness standards, in the form of special conditions, are necessary. These special conditions supplement part 25 and, more specifically, supplement §§ 25.562 and 25.785. The requirements contained in these special conditions consist of both test conditions and injury pass/fail criteria.

Discussion

Amendment 25-15 to part 25, dated October 24, 1967, introduced the subject of side-facing seats and a requirement that each occupant in a side-facing seat must be protected from head injury by a safety belt and a cushioned rest that will support the arms, shoulders, head, and spine.

Subsequently, Amendment 25-20, dated April 23, 1969, clarified the definition of side-facing seats to require that each occupant of a seat that is positioned at more than an 18-degree angle to the vertical plane containing the airplane centerline must be protected from head injury by a safety belt and an energy-absorbing rest that supports the arms, shoulders, head, and spine; or by a safety belt and shoulder harness that prevents the head from contacting injurious objects. The FAA concluded that a maximum 18-degree angle would provide an adequate level of safety based on tests that were performed at the time, and thus adopted that standard.

Amendment 25-64, dated June 16, 1988, revised the emergency-landing conditions that must be considered in the design of the airplane. It revised the static-load conditions in § 25.561 and added a new § 25.562, requiring dynamic testing for all seats approved for occupancy during takeoff and landing. The intent was to provide an improved level of safety for occupants on transport-category airplanes. Because most seating on transport-category airplanes is forward-facing, the pass/fail criteria developed in Amendment 25-64 focused primarily on forward-facing seats. Therefore, the testing specified in the rule did not provide a complete measure of occupant injury in seats that are not forward-facing; although § 25.785 does require occupants of all seats that are occupied during taxi, takeoff, and landing not suffer serious injury as a result of the inertia forces specified in §§ 25.561 and 25.562.

To address recent research findings and accommodate commercial demand, the FAA developed a methodology to address all fully side-facing seats (i.e., seats oriented in the airplane with the occupant facing 90 degrees to the direction of airplane travel) and has documented those requirements in a set of proposed new special conditions. The FAA issued policy statement PS-ANM-25-03-R1 on November 12, 2012, titled, “Technical Criteria for Approving Side-Facing Seats,” which conveys the injury criteria to be used in the special conditions. Some of those criteria are applicable to oblique seats but others are not because the motion of an occupant in an oblique seat is different from the motion of an occupant in a fully side-facing seat during emergency landing conditions.

For shallower installation angles, the FAA has granted equivalent level of safety (ELOS) findings for oblique seat installations on the premise that an occupant's kinematics in an oblique seat during a forward impact would result in the body aligning with the impact direction. We predicted that the occupant response would be similar to an occupant of a forward-facing seat, and would produce a level of safety equivalent to that of a forward-facing seat. These ELOS findings were subject to many conditions that reflected the injury-evaluation criteria and mitigation strategies available at the time of issuance of the ELOS. However, review of dynamic test results for many of these oblique seat installations raised concerns that the premise was not correct. Potential injury mechanisms exist that are unique to oblique seats and are not mitigated by the ELOS self-alignment approach even if the occupant appears to respond similarly to a forward-facing seat.

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

Applicability

As discussed above, these special conditions are applicable to the Boeing Model 777-300ER airplane. These special conditions can be applied to oblique seats installed at an angle greater than 18 degrees but less than 46 degrees to the vertical plane containing the airplane centerline.

Should JAMCO apply at a later date for a supplemental type certificate to modify any other model included on type certificate no. T00001SE to incorporate the same novel or unusual design feature, these special conditions would apply to that model as well.

Conclusion

This action affects only certain novel or unusual design features on one model series of airplanes. It is not a rule of general applicability and affects only the applicant who applied to the FAA for approval of these features on the airplane.

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

List of Subjects in 14 CFR Part 25

Aircraft, Aviation safety, Reporting and recordkeeping requirements.

The authority citation for these special conditions is as follows:

Authority:

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

The Special Conditions

Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for the Boeing Model 777-300ER airplane as modified by JAMCO.

In addition to the requirements of § 25.562:

1. Head-Injury Criteria

Compliance with § 25.562(c)(5) is required, except that, if the anthropomorphic test device (ATD) has no apparent contact with the seat/structure but has contact with an airbag, a head-injury criterion (HIC) unlimited score in excess of 1000 is acceptable, provided the HIC15 score (calculated in accordance with 49 CFR 571.208) for that contact is less than 700.

2. Body-to-Wall/Furnishing Contact

If a seat is installed aft of structure (e.g., an interior wall or furnishing) that does not provide a homogenous contact surface for the expected range of occupants and yaw angles, then additional analysis and/or test(s) may be required to demonstrate that the injury criteria are met for the area that an occupant could contact. For example, if different yaw angles could result in different airbag performance, then additional analysis or separate test(s) may be necessary to evaluate performance.

3. Neck Injury Criteria

The seating system must protect the occupant from experiencing serious neck injury. The assessment of neck injury must be conducted with the airbag device activated, unless there is reason to also consider that the neck-injury potential would be higher for impacts below the airbag-device deployment threshold.

a. The Nij (calculated in accordance with 49 CFR 571.208) must be below 1.0, where Nij = Fz/Fzc + My/Myc, and Nij critical values are:

i. Fzc = 1530 lb for tension ii. Fzc = 1385 lb for compression iii. Myc = 229 lb-ft in flexion iv. Myc = 100 lb-ft in extension

b. In addition, peak upper-neck Fz must be below 937 lb of tension and 899 lb of compression.

c. Rotation of the head about its vertical axis, relative to the torso, is limited to 105 degrees in either direction from forward-facing.

d. The neck must not impact any surface that would produce concentrated loading on the neck.

4. Spine and Torso Injury Criteria

a. The shoulders must remain aligned with the hips throughout the impact sequence, or support for the upper torso must be provided to prevent forward or lateral flailing beyond 45 degrees from the vertical during significant spinal loading. Alternatively, the lumbar spine tension (Fz) cannot exceed 1200 lb.

b. Significant concentrated loading on the occupant's spine, in the area between the pelvis and shoulders during impact, including rebound, is not acceptable. During this type of contact, the interval for any rearward (X-direction) acceleration exceeding 20g must be less than 3 milliseconds as measured by the thoracic instrumentation specified in 49 CFR part 572, subpart E, filtered in accordance with SAE International (SAE) J211-1.

c. Occupant must not interact with the armrest or other seat components in any manner significantly different than would be expected for a forward-facing seat installation.

5. Longitudinal test(s), conducted to measure the injury criteria above, must be performed with the FAA Hybrid III ATD, as described in SAE 1999-01-1609. The test(s) must be conducted with an undeformed floor, at the most-critical yaw case(s) for injury, and with all lateral structural supports (armrests/walls) installed.

Note:

JAMCO must demonstrate that the installation of seats via plinths or pallets meets all applicable requirements. Compliance with the guidance contained in FAA Policy Memorandum PS-ANM-100-2000-00123, dated February 2, 2000, titled, “Guidance for Demonstrating Compliance with Seat Dynamic Testing for Plinths and Pallets,” is acceptable to the FAA.

Inflatable Lap Belt Special Conditions

If inflatable lap belts are installed on single-place side-facing seats, the lap belts must meet Special Conditions no. 25-187A-SC.

Issued in Renton, Washington, on March 10, 2016. Michael Kaszycki, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service.
[FR Doc. 2016-05995 Filed 3-15-16; 8:45 am] BILLING CODE 4910-13-P
DEPARTMENT OF COMMERCE Bureau of Industry and Security 15 CFR Parts 736, 740, and 746 [Docket No. 160303178-6178-01] RIN 0694-AG86 Cuba: Revisions to License Exceptions and Licensing Policy AGENCY:

Bureau of Industry and Security, Commerce.

ACTION:

Final rule.

SUMMARY:

This rule allows vessels departing the United States on temporary sojourn to Cuba with cargo for other destinations to travel to Cuba under a license exception rather than having to obtain a license for the cargo bound for those other destinations to transit Cuba. This rule also authorizes exports of certain items to persons authorized by the Department of the Treasury to establish and maintain a physical or business presence in Cuba. Finally, the rule would adopt a licensing policy of case-by-case review for exports and reexports of items that would enable or facilitate export of items produced by the private sector in Cuba, subject to certain limitations.

DATES:

Effective March 16, 2016.

FOR FURTHER INFORMATION CONTACT:

Foreign Policy Division, Bureau of Industry and Security, Phone: (202) 482-4252.

SUPPLEMENTARY INFORMATION: Background

On December 17, 2014, the President announced a historic new approach in U.S. policy toward Cuba. This approach recognized that increased engagement and commerce benefits the American and Cuban people, and sought to make the lives of ordinary Cubans easier and more prosperous. On January 16, 2015, the Bureau of Industry and Security (BIS) amended the Export Administration Regulations (EAR) to create License Exception Support for the Cuban People (SCP), which authorizes the export and reexport, without a license, of certain items to, among other objectives, improve the living conditions of the Cuban people (see 80 FR 2286). The rule also made other changes to license exceptions and licensing policy. Id.

On July 22, 2015, BIS published a rule implementing the May 29, 2015, rescission of Cuba's designation as a state sponsor of terrorism (see 80 FR 43314). That rule expanded certain license exception availability for exports and reexports to Cuba, including making general aviation aircraft eligible for temporary sojourns to Cuba.

On September 21, 2015, BIS published a rule to enhance support for the Cuban people (see 80 FR 56898). This rule expanded the scope of transactions that are eligible for License Exception SCP and made certain vessels on temporary sojourn to Cuba eligible for a license exception.

On January 27, 2016, BIS published a rule that amended the licensing policy in § 746.2 of the EAR to add a general policy of approval for certain exports and reexports previously subject to case-by-case review and a policy of case-by-case review for exports and reexports of items not eligible for License Exception SCP to meet the needs of the Cuban people, including exports and reexports made to state-owned enterprises and agencies and organizations of the Cuban government that provide goods and services to the Cuban people, subject to certain restrictions (see 81 FR 4580).

Today, BIS is taking this action in coordination with the Department of the Treasury, Office of Foreign Assets Control (OFAC), which is amending the Cuban Assets Control Regulations (31 CFR part 515).

This rule revises License Exception Aircraft, Vessels and Spacecraft (AVS) in § 740.15 to authorize transit through Cuban territory of cargo, laden aboard a vessel on temporary sojourn to Cuba, that is destined for other countries rather than require a license for that cargo to transit Cuban territory provided that such cargo departs with the vessel at the end of its temporary sojourn, does not enter the Cuban economy and is not transferred to another vessel while in Cuba. This change allows for efficient use of vessels that carry cargo from the United States to Cuba and to other countries and allows exporter carriers to select efficient routes. This rule also adds a note reminding readers to consult Coast Guard regulations on unauthorized entry into Cuban territorial waters.

This rule revises License Exception SCP to authorize export or reexport of EAR99 items and items controlled on the Commerce Control List only for anti-terrorism reasons for use by persons authorized to establish and maintain a physical or business presence in Cuba by the Department of the Treasury, Office of Foreign Assets Control pursuant to 31 CFR 515.573 or pursuant to a specific license issued by OFAC. Prior to this rule, License Exception SCP enumerated the activities for which OFAC had authorized such physical or business presence by general license. Simultaneously with the publication of this rule, OFAC is publishing an amendment to 31 CFR 515.573 to authorize additional persons subject to U.S. jurisdiction to establish a business and physical presence in Cuba. BIS's intent is to authorize by license exception the export and reexport of items needed to establish and maintain a physical or business presence in Cuba, to all persons authorized by OFAC to have such a presence. The simplest way to do this is to reference the applicable section in OFAC's Cuban Assets Control Regulations (“CACR”), i.e., 31 CFR 515.573 and specific licenses issued by OFAC rather than to revise the EAR to repeat any changes made to that CACR section.

This rule also revises EAR licensing policy regarding Cuba to adopt a policy of case-by-case review of license applications to export or reexport items that will enable or facilitate exports from Cuba of items produced by Cuba's private sector. BIS is adopting this policy to reinforce the Cuba case-by-case licensing policy adopted prior to this rule, which focuses on exports and reexports that would be used in ways that meet the needs of the Cuban people. Enabling or facilitating exports of items produced by the Cuban private sector, under certain circumstances will also help meet the needs of the Cuban people and is consistent with the Administration's policy of supporting the ability of the Cuban people to gain greater control over their own lives and determine their country's future. However, BIS will conduct the case-by-case review consistent with the policy standard set forth in § 746.2(b)(3)(i) of the EAR, which provides that “BIS generally will deny applications to export or reexport items for use by state-owned enterprises, agencies, and other organizations that primarily generate revenue for the state, including those engaged in tourism and those engaged in the extraction or production of minerals or other raw materials. Applications for export or reexport of items destined to the Cuban military, police, intelligence or security services also generally will be denied.”

This rule revises Note 1 to § 746.2(b)(3)(i) of the EAR, which describes a condition that will generally be included on licenses to prohibit reexport of the items authorized by the license or use of those items to enable or facilitate exports from Cuba. The revision makes clear that the condition applies to reexports from Cuba or uses that enable or facilitate exports from Cuba that primarily generate revenue for the state. BIS is making this change because enabling or facilitating exports of items produced by the Cuban private sector under certain circumstances will help meet the needs of the Cuban people and is consistent with the Administration's policy of supporting the ability of the Cuban people to gain greater control over their own lives and determine their country's future.

Specific Changes Made by This Rule

This rule revises § 736.2(b)(8) of the EAR, which prohibits shipments from transiting certain destinations, to explicitly state that the prohibition does not apply if a license or license exception authorizes the in-transit shipment.

This rule revises § 740.15(d)(6) of the EAR to authorize temporary sojourn to Cuba of a vessel carrying cargo destined to other countries provided that such cargo departs with the vessel at the end of its temporary sojourn to Cuba, does not enter the Cuban economy and is not transferred to another vessel while in Cuba.

This rule revises § 740.21(e) to remove the individual references to categories of persons authorized by OFAC to establish and maintain a physical or business presence in Cuba pursuant to 31 CFR 515.573, and to authorize exports and reexports to all such persons and to persons whose physical or business presence is authorized by a specific license issued by OFAC.

This rule revises § 746.2(b)(3)(i), to add a paragraph (b)(3)(i)(D), which sets a policy of case-by-case review of items that will enable or facilitate export from Cuba of items produced by the Cuban private sector. It also revises Note 1 to clarify that the license condition described therein is intended to preclude use of items authorized by licenses bearing that condition from being reexported from Cuba or being used to enable or facilitate exports from Cuba that primarily generate revenue for the state.

BIS is making these changes to facilitate further support of and engagement with the Cuban people.

Export Administration Act

Although the Export Administration Act expired on August 20, 2001, the President, through Executive Order 13222 of August 17, 2001, 3 CFR, 2001 Comp., p. 783 (2002), as amended by Executive Order 13637 of March 8, 2013, 78 FR 16129 (March 13, 2013), and as extended by the Notice of August 7, 2015, 80 FR 48233 (August 11, 2015), has continued the Export Administration Regulations in effect under the International Emergency Economic Powers Act. BIS continues to carry out the provisions of the Export Administration Act, as appropriate and to the extent permitted by law, pursuant to Executive Order 13222 as amended by Executive Order 13637.

Rulemaking Requirements

1. Executive Orders 13563 and 12866 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has been designated a “significant regulatory action,” although not economically significant, under section 3(f) of Executive Order 12866. Accordingly, the rule has been reviewed by the Office of Management and Budget (OMB).

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 involves a collection of information approved under OMB control number 0694-0088—Simplified Network Application Processing+ System (SNAP+) and the Multipurpose Export License Application, which carries an annual estimated burden of 31,833 hours. BIS believes that this rule will have no material impact on that burden. To the extent that it has any impact, BIS believes that the benefits of this rule justify any additional burden it creates. This rule does not impose any new license requirements, it creates less restrictive licensing policies (i.e., the policies under which the decision to approve or deny a license application is made) for exports and reexports to Cuba. These less restrictive policies might increase the number of license applications submitted to BIS because applicants might be more optimistic about obtaining approval. However, the benefit to license applicants in the form of greater likelihood of approval justifies any additional burden. Send comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing the burden, to Jasmeet K. Seehra, Office of Management and Budget, by email at [email protected] or by fax to (202) 395-7285 and to William Arvin at [email protected]

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

4. The provisions of the Administrative Procedure Act (5 U.S.C. 553) requiring notice of proposed rulemaking and the opportunity for public participation, and a delay in effective date, are inapplicable because this regulation involves a military or foreign affairs function of the United States (see 5 U.S.C. 553(a)(1)). This rule is part of a foreign policy initiative to change the nature of the relationship between Cuba and the United States announced by the President on December 17, 2014. Delay in implementing this rule to obtain public comment would undermine the foreign policy objectives that the rule is intended to implement. Further, no other law requires that a notice of proposed rulemaking and an opportunity for public comment be given for this rule. Because a notice of proposed rulemaking and an opportunity for public comment are not required to be given for this rule under 5 U.S.C. 553, or by any other law, the requirements of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) are not applicable.

List of Subjects 15 CFR Part 736

Exports.

15 CFR Part 740

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

15 CFR Part 746

Exports, Reporting and recordkeeping requirements.

For the reasons set forth in the preamble, 15 CFR Chapter VII, Subchapter C is amended as follows:

PART 736—[AMENDED] 1. The authority citation for part 736 continues 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).

2. Section 736.2 is amended by revising paragraph (b)(8)(i) to read as follows:
§ 736.2 General prohibitions and determination of applicability.

(b) * * *

(8) * * *

(i) Unlading and shipping in transit. You may not export or reexport an item through, or transit through a country listed in paragraph (b)(8)(ii) of this section, unless a license exception or license authorizes such an export or reexport directly to or transit through such a country of transit, or unless such an export or reexport is eligible to such a country of transit without a license.

PART 740—[AMENDED] 3. The authority citation for part 740 continues to 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).

4. Section 740.15 is amended by revising paragraph (d)(6) to read as follows:
§ 740.15 Aircraft, vessels and spacecraft (AVS).

(d) * * *

(6) Cuba—(i) Eligible vessels and purposes. Only the types of vessels listed in this paragraph (d)(6)(i) departing for Cuba for the purposes listed in this paragraph (d)(6)(i) may depart for Cuba pursuant to this paragraph (d). Vessels used to transport both passengers and items to Cuba may transport automobiles only if the export or reexport of the automobiles to Cuba has been authorized by a separate license issued by BIS (i.e., not authorized by license exception).

(A) Cargo vessels for hire for use in the transportation of items;

(B) Passenger vessels for hire for use in the transportation of passengers and/or items; and

(C) Recreational vessels that are used in connection with travel authorized by the Department of the Treasury, Office of Foreign Assets Control (OFAC).

Note to paragraph (d)(6)(i)(C): Readers should also consult U.S. Coast Guard regulations at 33 CFR part 107 Subpart B—Unauthorized Entry into Cuban Territorial Waters.

(ii) Intransit cargo. Cargo laden on board a vessel may transit Cuba provided:

(A) The vessel is exported or reexported on temporary sojourn to Cuba pursuant to this paragraph (d) or a license from BIS; and

(B) The cargo departs with the vessel at the end of its temporary sojourn to Cuba, does not enter the Cuban economy and is not transferred to another vessel while in Cuba.

Note to paragraph (d). A vessel exported or reexported to a country pursuant to this paragraph (d) may not remain in that country for more than 14 consecutive days before it departs for a country to which it may be exported without a license or the United States.

5. Section 740.21 is amended by: a. Revising paragraph (e)(1); b. Removing paragraph (e)(2); c. Redesignating paragraph (e)(3) as (e)(2); and d. Revising the note to paragraph (e).

The revisions read as follows:

§ 740.21 Support for the Cuban People (SCP).

(e) * * *

(1) The export or reexport to Cuba of items for use by persons authorized by the Department of the Treasury, Office of Foreign Assets Control (OFAC) to establish and maintain a physical or business presence in Cuba pursuant to 31 CFR 515.573 or pursuant to a specific license issued by OFAC. The items authorized pursuant to this paragraph (e)(1) are limited to those designated as EAR99 (i.e., items subject to the EAR but not specified in any ECCN) or controlled on the CCL only for anti-terrorism reasons.

Note to paragraph (e). Any resulting payments associated with establishing or maintaining a physical or business presence in Cuba, such as lease payments, are permitted only to the extent authorized by 31 CFR 515.573 or a specific license issued by OFAC.

PART 746—[AMENDED] 6. The authority citation for part 746 continues 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).

7. Section 746.2 is amended by: a. Removing the word “and” from the end of paragraph (b)(3)(i)(B); b. Removing the period from the end of paragraph (b)(3)(i)(C) and adding “; and” in its place; c. Adding paragraph (b)(3)(i)(D); and d. Revising Note 1 to paragraph (b)(3)(i).

The addition and revision read as follows:

§ 746.2 Cuba.

(b) * * *

(3) * * *

(i) * * *

(D) Items that will enable or facilitate export from Cuba of items produced by the private sector.

Note 1 to paragraph (b)(3)(i): Licenses issued pursuant to the policy set forth in this paragraph generally will have a condition prohibiting both reexports from Cuba to any other destination and uses that enable or facilitate the export of goods or services from Cuba, that primarily generate revenue for the state.

Dated: March 14, 2016. Kevin J. Wolf, Assistant Secretary for Export Administration.
[FR Doc. 2016-06019 Filed 3-15-16; 8:45 am] BILLING CODE 3510-33-P
DEPARTMENT OF JUSTICE Parole Commission 28 CFR Part 2 [Docket No. USPC-2016-01] Paroling, Recommitting, and Supervising Federal Prisoners: Prisoners Serving Sentences Under the United States and District of Columbia Codes AGENCY:

United States Parole Commission, Justice.

ACTION:

Final rule.

SUMMARY:

The U.S. Parole Commission is adopting a final rule to amend the voting requirements for decisions to terminate a D.C. Code parolee's supervision before the expiration of the sentence. The new rule permits one commissioner to make the decision to terminate parole. The rule currently requires two commissioners to agree to terminate parole early. The Commission is also revising reporting requirements for supervision officers who supervise D.C. Code offenders on parole and supervised release by removing the requirement for reports to be submitted after the completion of 12 months of continuous supervision.

DATES:

Effective March 16, 2016.

FOR FURTHER INFORMATION CONTACT:

Helen H. Krapels, General Counsel, Office of the General Counsel, U.S. Parole Commission, 90 K Street NE., Washington, DC 20530, telephone (202) 346-7030. Questions about this publication are welcome, but inquiries concerning individual cases cannot be answered over the telephone.

SUPPLEMENTARY INFORMATION:

Since August 5, 1998, as a result of the National Capital Revitalization and Self-Government Improvement Act of 1997, D.C. Code section 24-131(a) (hereinafter “the Revitalization Act”), the U.S. Parole Commission has had exclusive jurisdiction over District of Columbia Code felony offenders. Before this transfer of jurisdiction, the D.C. Board of Parole had the authority to release a D.C. Code parolee from supervision upon the vote of a majority of the D.C. Board of Parole. For a D.C. Code parolee released from supervision, all conditions of parole would be waived except the condition that the parolee not violate the law or engage in any conduct which might bring discredit to the parole system. The parolee was not, however, released from the custody of the Attorney General or the jurisdiction of the D.C. Board of Parole before the expiration of the sentence, which meant that the D.C. Board of Parole maintained jurisdiction to issue a warrant to return the parolee to custody if, before the expiration of the maximum period of supervision, the parolee committed a new crime or engaged in conduct which might bring discredit to the parole system.

Following the transfer of authority over D.C. Code parolees to the U.S. Parole Commission, the D.C. Council enacted the Equitable Street Time Amendment Act of 2008 (effective May 20, 2009) (hereinafter “the Equitable Street Time Amendment Act”). Section 3(a) of the Equitable Street Time Amendment Act permits the U.S. Parole Commission to terminate legal custody over D.C. Code parolees in a fashion that is similar to the U.S. Parole Commission's authority to terminate parole for U.S. Code parolees. The Commission promulgated regulations to terminate parole before the expiration of the sentence pursuant to the authority granted under the Revitalization Act. These regulations were similar to the regulations for early termination of parole for U.S. Code sentenced parolees, but required that two commissioners agree on the decision to terminate supervision early.

With the revision published today, the Commission is establishing an appropriate voting quorum for decisionmaking. The result is consistent with the Commission's goal of achieving greater uniformity in its procedures for all cases under its jurisdiction. One commissioner may make the decision to terminate parole for D.C. Code parolees, as is the procedure for terminating parole for U.S. Code sentenced parolees and terminating supervised release for D.C. Code sentenced offenders on supervised release. Because the revision of the rule will affect only the internal voting procedures of the Commission, and will not implicate the merits of any parolee's case for termination of parole, notice and public comment are not required. 18 U.S.C. 553(b)(A).

The Commission is also eliminating the requirement that supervision officers provide initial supervision reports for D.C. Code offenders under its jurisdiction 90 days after the parolee has been released from prison and a supervision report after the completion of 12 months of continuous community supervision, and replacing it with the requirement that the supervision officer provide an initial supervision report after the completion of 24 months of continuous supervision. This revision will make the timeframes for submitting the initial supervision report consistent with U.S. Code sentenced parolees. Notice and public comment are not required because the revision of the rule will only affect procedures for submitting reports to the Commission. 18 U.S.C. 553(b)(A).

Executive Order 13132

These regulations will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Under Executive Order 13132, these rules do not have sufficient federalism implications requiring a Federalism Assessment.

Regulatory Flexibility Act

The rules will not have a significant economic impact upon a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 605(b).

Unfunded Mandates Reform Act of 1995

The rules will not cause State, local, or tribal governments, or the private sector, to spend $100,000,000 or more in any one year, and it will not significantly or uniquely affect small governments. No action under the Unfunded Mandates Reform Act of 1995 is necessary.

Small Business Regulatory Enforcement Fairness Act of 1996 (Subtitle E—Congressional Review Act)

These rules are not “major rules” as defined by Section 804 of the Small Business Regulatory Enforcement Fairness Act of 1996 Subtitle E—Congressional Review Act, now codified at 5 U.S.C. 804(2). The rules 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 the ability of United States-based companies to compete with foreign-based companies. Moreover, these are rules of agency practice or procedure that do not substantially affect the rights or obligations of non-agency parties, and do not come within the meaning of the term “rule” as used in Section 804(3)(C), now codified at 5 U.S.C. 804(3)(C). Therefore, the reporting requirement of 5 U.S.C. 801 does not apply.

List of Subjects in 28 CFR Part 2

Administrative practice and procedure, Prisoners, Probation and parole.

The Final Rule

Accordingly, the U.S. Parole Commission adopts the following amendment to 28 CFR part 2:

PART 2—[AMENDED] 1. The authority citation for 28 CFR part 2 continues to read as follows: Authority:

18 U.S.C. 4203(a)(1) and 4204(a)(6).

2. Amend § 2.74 by revising paragraph (c) to read as follows:
§ 2.74 Decision of the Commission.

(c) The Commission shall resolve relevant issues of fact in accordance with § 2.19(c). Decisions granting or denying parole shall be based on the concurrence of two Commissioners, except that three Commissioners votes shall be required if the decision differs from the decision recommended by the examiner panel by more than six months. All other decisions, including decisions on revocation and reparole made pursuant to § 2.105(c), and decisions terminating a parolee early from supervision, shall be based on the vote of one Commissioner, except as otherwise provided in this subpart.

3. Revise § 2.94 to read as follows:
§ 2.94 Supervision reports to Commission.

A supervision report shall be submitted by the responsible supervision officer to the Commission for each parolee after the completion of 24 months of continuous supervision and annually thereafter. The supervision officer shall submit such additional reports and information concerning both the parolee, and the enforcement of the conditions of the parolee's supervision, as the Commission may direct. All reports shall be submitted according to the format established by the Commission.

4. Revise § 2.207 to read as follows:
§ 2.207 Supervision reports to Commission.

A supervision report shall be submitted by the responsible supervision officer to the Commission for each releasee after the completion of 24 months of continuous supervision and annually thereafter. The supervision officer shall submit such additional reports and information concerning both the releasee, and the enforcement of the conditions of the supervised release, as the Commission may direct. All reports shall be submitted according to the format established by the Commission.

Dated: March 4, 2016. J. Patricia Wilson Smoot, Chairman, U.S. Parole Commission.
[FR Doc. 2016-05639 Filed 3-15-16; 8:45 am] BILLING CODE 4410-31-P
DEPARTMENT OF LABOR Occupational Safety and Health Administration 29 CFR Part 1988 [Docket Number: OSHA-2015-0021] RIN 1218-AC88 Procedures for Handling Retaliation Complaints Under Section 31307 of the Moving Ahead for Progress in the 21st Century Act (MAP-21) AGENCY:

Occupational Safety and Health Administration, Labor.

ACTION:

Interim final rule; request for comments.

SUMMARY:

This document provides the interim final text of regulations governing the employee protection (retaliation or whistleblower) provisions of section 31307 of the Moving Ahead for Progress in the 21st Century Act (MAP-21 or the Act). This rule establishes procedures and time frames for the handling of retaliation complaints under MAP-21, including procedures and time frames for employee complaints to the Occupational Safety and Health Administration (OSHA), investigations by OSHA, appeals of OSHA determinations to an administrative law judge (ALJ) for a hearing de novo, hearings by ALJs, review of ALJ decisions by the Administrative Review Board (ARB) (acting on behalf of the Secretary of Labor) and judicial review of the Secretary's final decision. It also sets forth the Secretary's interpretations of the MAP-21 whistleblower provision on certain matters.

DATES:

This interim final rule is effective on March 16, 2016. Comments and additional materials must be submitted (post-marked, sent or received) by May 16, 2016.

ADDRESSES:

You may submit your comments by using one of the following methods:

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

Fax: If your submissions, including attachments, do not exceed 10 pages, you may fax them to the OSHA Docket Office at (202) 693-1648.

Mail, hand delivery, express mail, messenger or courier service: You may submit your comments and attachments to the OSHA Docket Office, Docket No. OSHA-2015-0021, U.S. Department of Labor, Room N-2625, 200 Constitution Avenue NW., Washington, DC 20210. Deliveries (hand, express mail, messenger and courier service) are accepted during the Department of Labor's and Docket Office's normal business hours, 8:15 a.m.-4:45 p.m., E.T.

Instructions: All submissions must include the agency name and the OSHA docket number for this rulemaking (Docket No. OSHA- 2015-0021). Submissions, including any personal information you provide, are placed in the public docket without change and may be made available online at http://www.regulations.gov. Therefore, OSHA cautions you about submitting personal information such as social security numbers and birth dates.

Docket: To read or download submissions or other material in the docket, go to http://www.regulations.gov or the OSHA Docket Office at the address above. All documents in the docket are listed in the http://www.regulations.gov index, however, some information (e.g., copyrighted material) is not publicly available to read or download through the Web site. All submissions, including copyrighted material, are available for inspection and copying at the OSHA Docket Office.

FOR FURTHER INFORMATION CONTACT:

Mr. Anh-Viet Ly, Program Analyst, Directorate of Whistleblower Protection Programs, Occupational Safety and Health Administration, U.S. Department of Labor, Room N-4618, 200 Constitution Avenue NW., Washington, DC 20210; telephone (202) 693-2199. This is not a toll-free number. Email: [email protected] This Federal Register publication is available in alternative formats. The alternative formats available are: large print, electronic file on computer disk (Word Perfect, ASCII, Mates with Duxbury Braille System) and audiotape.

SUPPLEMENTARY INFORMATION: I. Background

The Moving Ahead for Progress in the 21st Century Act (MAP-21 or Act), Public Law 112-141, 126 Stat. 405, was enacted on July 6, 2012 and, among other things, funded surface transportation programs at over $105 billion for fiscal years 2013 and 2014. Section 31307 of the Act, codified at 49 U.S.C. 30171 and referred to throughout these interim final rules as MAP-21, prohibits motor vehicle manufacturers, parts suppliers, and dealerships from discharging or otherwise retaliating against an employee because the employee provided, caused to be provided or is about to provide information to the employer or the Secretary of Transportation relating to any motor vehicle defect, noncompliance, or any violation or alleged violation of any notification or reporting requirement of Chapter 301 of title 49 of the U.S. Code (Chapter 301); filed, caused to be filed or is about to file a proceeding relating to any such defect or violation; testified, assisted or participated (or is about to testify, assist or participate) in such a proceeding; or objected to, or refused to participate in, any activity that the employee reasonably believed to be in violation of any provision of Chapter 301, or any order, rule, regulation, standard or ban under such provision. Chapter 301 is the codification of the National Traffic and Motor Vehicle Safety Act of 1966, as amended, which grants the National Highway Traffic Safety Administration (NHTSA) authority to issue vehicle safety standards and to require manufacturers to recall vehicles that have a safety-related defect or do not meet federal safety standards. These interim final rules establish procedures for the handling of whistleblower complaints under the Act.

II. Summary of Statutory Procedures

Under MAP-21, a person who believes that he has been discharged or otherwise retaliated against in violation of the Act (complainant) may file a complaint with the Secretary of Labor (Secretary) within 180 days of the alleged retaliation. Upon receipt of the complaint, the Secretary must provide written notice to the person or persons named in the complaint alleged to have violated the Act (respondent) of the filing of the complaint, the allegations contained in the complaint, the substance of the evidence supporting the complaint, and the rights afforded the respondent throughout the investigation. The Secretary must then, within 60 days of receipt of the complaint, afford the respondent an opportunity to submit a response, meet with the investigator to present statements from witnesses, and conduct an investigation.

The Act provides that the Secretary may conduct an investigation only if the complainant has made a prima facie showing that the protected activity was a contributing factor in the adverse action alleged in the complaint and the respondent has not demonstrated, through clear and convincing evidence, that it would have taken the same adverse action in the absence of that activity. (See § 1988.104 for a summary of the investigation process.) OSHA interprets the prima facie case requirement as allowing the complainant to meet this burden through the complaint as supplemented by interviews of the complainant.

After investigating a complaint, the Secretary will issue written findings. If, as a result of the investigation, the Secretary finds there is reasonable cause to believe that retaliation has occurred, the Secretary must notify the complainant and respondent of those findings, along with a preliminary order that requires the respondent to, where appropriate: Take affirmative action to abate the violation; reinstate the complainant to his or her former position together with the compensation of that position (including back pay) and restore the terms, conditions, and privileges associated with his or her employment; and provide compensatory damages to the complainant, as well as all costs and expenses (including attorney fees and expert witness fees) reasonably incurred by the complainant for, or in connection with, the bringing of the complaint upon which the order was issued.

The complainant and the respondent then have 30 days after the date of receipt of the Secretary's notification in which to file objections to the findings and/or preliminary order and request a hearing before an Administrative Law Judge (ALJ). The filing of objections under the Act will stay any remedy in the preliminary order except for preliminary reinstatement. If a hearing before an ALJ is not requested within 30 days, the preliminary order becomes final and is not subject to judicial review.

If a hearing is held, the Act requires the hearing to be conducted “expeditiously.” The Secretary then has 120 days after the conclusion of any hearing in which to issue a final order, which may provide appropriate relief or deny the complaint. Until the Secretary's final order is issued, the Secretary, the complainant, and the respondent may enter into a settlement agreement that terminates the proceeding. Where the Secretary has determined that a violation has occurred, the Secretary, where appropriate, will assess against the respondent a sum equal to the total amount of all costs and expenses, including attorney and expert witness fees, reasonably incurred by the complainant for, or in connection with, the bringing of the complaint upon which the Secretary issued the order. The Secretary also may award a prevailing employer reasonable attorney fees, not exceeding $1,000, if the Secretary finds that the complaint is frivolous or has been brought in bad faith. Within 60 days of the issuance of the final order, any person adversely affected or aggrieved by the Secretary's final order may file an appeal with the United States Court of Appeals for the circuit in which the violation allegedly occurred or the circuit where the complainant resided on the date of the violation.

The Act permits the employee to seek de novo review of the complaint by a United States district court in the event that the Secretary has not issued a final decision within 210 days after the filing of the complaint. The provision provides that the court will have jurisdiction over the action without regard to the amount in controversy and that the case will be tried before a jury at the request of either party.

III. Summary and Discussion of Regulatory Provisions

The regulatory provisions in this part have been written and organized to be consistent with other whistleblower regulations promulgated by OSHA to the extent possible within the bounds of the statutory language of the Act. Responsibility for receiving and investigating complaints under the Act has been delegated to the Assistant Secretary for Occupational Safety and Health (Assistant Secretary) by Secretary of Labor's Order No. 1-2012 (Jan. 18, 2012), 77 FR 3912 (Jan. 25, 2012). Hearings on determinations by the Assistant Secretary are conducted by the Office of Administrative Law Judges, and appeals from decisions by ALJs are decided by the ARB. Secretary of Labor's Order No. 2-2012 (Oct. 19, 2012), 77 FR 69378 (Nov. 16, 2012).

Subpart A—Complaints, Investigations, Findings and Preliminary Orders Section 1988.100 Purpose and Scope

This section describes the purpose of the regulations implementing the whistleblower provisions of MAP-21 and provides an overview of the procedures covered by these regulations.

Section 1988.101 Definitions

This section includes the general definitions of certain terms used in section 31307 of MAP-21, 49 U.S.C. 30171, which are applicable to the Act's whistleblower provision. The term “dealership” appears only in section 30171 and does not appear in any other provision of Chapter 301, which consistently uses the term “dealer” to mean “a person selling and distributing new motor vehicles or motor vehicle equipment primarily to purchasers that in good faith purchase the vehicles or equipment other than for resale.” See 49 U.S.C. 30102(a)(1). Accordingly, the Secretary concludes that the term “dealership” in section 30171 refers to any “dealer” as that term is defined in section 30102(a)(1). The term defect “includes any defect in performance, construction, a component, or material of a motor vehicle or motor vehicle equipment.” See id. at (a)(2). The term manufacturer means “a person (A) manufacturing or assembling motor vehicles or motor vehicle equipment; or (B) importing motor vehicles or motor vehicle equipment for resale.” See id. at (a)(5). The term motor vehicle means “a vehicle driven or drawn by mechanical power and manufactured primarily for use on public streets, roads, and highways, but does not include a vehicle operated only on a rail line.” See id. at (a)(6). The term motor vehicle equipment means “(A) any system, part, or component of a motor vehicle as originally manufactured; (B) any similar part or component manufactured or sold for replacement or improvement of a system, part, or component, or as an accessory or addition to a motor vehicle; or (C) any device or an article or apparel, including a motorcycle helmet and excluding medicine or eyeglasses prescribed by a licensed practitioner, that (i) is not a system, part, or component of a motor vehicle; and (ii) is manufactured, sold, delivered, or offered to be sold for use on public streets, roads, and highways with the apparent purpose of safeguarding users of motor vehicles against risk of accident, injury, or death.” See id. at (a)(7).

Section 1988.102 Obligations and Prohibited Acts

This section describes the activities that are protected under the Act and the conduct that is prohibited in response to any protected activities. The Act protects individuals who provide information to the employer or to the Secretary of Transportation relating to any motor vehicle defect, noncompliance, or any violation or alleged violation of any notification or reporting requirement of Chapter 301. The Act also protects individuals who file, testify, assist, or participate in proceedings concerning motor vehicle defects, noncompliance, or violations or alleged violations of any notification or reporting requirement of Chapter 301. Finally, the Act protects individuals who objected to, or refused to participate in, any activity that the employee reasonably believed to be in violation of any provision of Chapter 301 or any order, rule, regulation, standard, or ban under that Chapter. More information regarding Chapter 301 and NHTSA's regulations can be found at www.nhtsa.gov.

Under the Act, an employee who provides information, files a proceeding, or objects to or refuses to participate in any activity is protected so long as the employee's belief of a defect, noncompliance or violation is subjectively and objectively reasonable. See, e.g., Benjamin v. CitationShares Management. L.L.C., ARB No. 12-029, 2013 WL 6385831, at *4 (ARB Nov. 5, 2013) (noting that, as a matter of law, an employee is protected under the aviation whistleblower protections of 49 U.S.C. 42121 when he provides or attempts to provide information regarding conduct he reasonably believes violates FAA regulations) (citations omitted); Sylvester v. Parexel Int'l LLC, ARB No. 07-123, 2011 WL 2165854, at *11-12 (ARB May 25, 2011) (discussing the reasonable belief standard under analogous language in the Sarbanes-Oxley Act whistleblower provision, 18 U.S.C. 1514A). The requirement that the complainant have a subjective, good faith belief is satisfied so long as the complainant actually believed that the conduct objected to violated the relevant law or regulation. See Sylvester, 2011 WL 2165854, at *11-12. The objective “reasonableness” of a complainant's belief is typically determined “based on the knowledge available to a reasonable person in the same factual circumstances with the same training and experience as the aggrieved employee.” Id. at *12 (internal quotation marks and citation omitted). However, the complainant need not show that the conduct constituted an actual violation of law. Pursuant to this standard, an employee's whistleblower activity is protected where it is based on a reasonable, but mistaken, belief that a violation of the relevant law has occurred. Id. at *13.

Section 1988.103 Filing of Retaliation Complaint

This section explains the requirements for filing a retaliation complaint under MAP-21. To be timely, a complaint must be filed within 180 days of when the alleged violation occurs. Under Delaware State College v. Ricks, 449 U.S. 250, 258 (1980), an alleged violation occurs when the retaliatory decision has been both made and communicated to the complainant. In other words, the limitations period commences once the employee is aware or reasonably should be aware of the employer's decision to take an adverse action. Equal Emp't Opportunity Comm'n v. United Parcel Serv., Inc., 249 F.3d 557, 561-62 (6th Cir. 2001). The time for filing a complaint under MAP-21 may be tolled for reasons warranted by applicable case law. For example, OSHA may consider the time for filing a complaint to be tolled if a complainant mistakenly files a complaint with an agency other than OSHA within 180 days after an alleged adverse action.

Complaints filed under MAP-21 need not be in any particular form. They may be either oral or in writing. If the complainant is unable to file the complaint in English, OSHA will accept the complaint in any language. With the consent of the employee, complaints may be filed by any person on the employee's behalf.

OSHA notes that a complaint of retaliation filed with OSHA under MAP-21 is not a formal document and need not conform to the pleading standards for complaints filed in federal district court articulated in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009). See Sylvester, 2011 WL 2165854, at *9-10 (holding that whistleblower complaints filed with OSHA under analogous provisions in the Sarbanes-Oxley Act need not conform to federal court pleading standards). Rather, the complaint filed with OSHA under this section simply alerts OSHA to the existence of the alleged retaliation and the complainant's desire that OSHA investigate the complaint.

Section 1988.104 Investigation

This section describes the procedures that apply to the investigation of MAP-21 complaints. Paragraph (a) of this section outlines the procedures for notifying the parties and the NHTSA of the complaint and notifying the respondent of its rights under these regulations. Paragraph (b) describes the procedures for the respondent to submit its response to the complaint. Paragraph (c) specifies that OSHA will request that the parties provide each other with copies of their submissions to OSHA during the investigation and that, if a party does not provide such copies, OSHA will do so at a time permitting the other party an opportunity to respond to those submissions. Before providing such materials, OSHA will redact them consistent with the Privacy Act of 1974, 5 U.S.C. 552a and other applicable confidentiality laws. Paragraph (d) of this section discusses confidentiality of information provided during investigations.

Paragraph (e) of this section sets forth the applicable burdens of proof. MAP-21 requires that a complainant make an initial prima facie showing that a protected activity was “a contributing factor” in the adverse action alleged in the complaint, i.e., that the protected activity, alone or in combination with other factors, affected in some way the outcome of the employer's decision. The complainant will be considered to have met the required burden if the complaint on its face, supplemented as appropriate through interviews of the complainant, alleges the existence of facts and either direct or circumstantial evidence to meet the required showing. The complainant's burden may be satisfied, for example, if he or she shows that the adverse action took place within a temporal proximity of the protected activity, or at the first opportunity available to the respondent, giving rise to the inference that it was a contributing factor in the adverse action. See, e.g. Porter v. Cal. Dep't of Corrs., 419 F.3d 885, 895 (9th Cir. 2005) (years between the protected activity and the retaliatory actions did not defeat a finding of a causal connection where the defendant did not have the opportunity to retaliate until he was given responsibility for making personnel decisions).

If the complainant does not make the required prima facie showing, the investigation must be discontinued and the complaint dismissed. See Trimmer v. U.S. Dep't of Labor, 174 F.3d 1098, 1101 (10th Cir. 1999) (noting that the burden-shifting framework of the Energy Reorganization Act of 1974, which is the same as that under MAP-21, serves a “gatekeeping function” that “stem[s] frivolous complaints”). Even in cases where the complainant successfully makes a prima facie showing, the investigation must be discontinued if the employer demonstrates, by clear and convincing evidence, that it would have taken the same adverse action in the absence of the protected activity. Thus, OSHA must dismiss a complaint under MAP-21 and not investigate further if either: (1) The complainant fails to meet the prima facie showing that protected activity was a contributing factor in the alleged adverse action; or (2) the employer rebuts that showing by clear and convincing evidence that it would have taken the same adverse action absent the protected activity.

Assuming that an investigation proceeds beyond the gatekeeping phase, the statute requires OSHA to determine whether there is reasonable cause to believe that protected activity was a contributing factor in the alleged adverse action. A contributing factor is “any factor which, alone or in connection with other factors, tends to affect in any way the outcome of the decision.” Marano v. Dep't of Justice, 2 F.3d 1137, 1140 (Fed. Cir. 1993) (internal quotation marks, emphasis and citation omitted) (discussing the Whistleblower Protection Act, 5 U.S.C. 1221(e)(1)); see also Lockheed Martin Corp. v. Admin. Rev. Bd., 717 F.3d 1121, 1136 (10th Cir. 2013) (discussing Marano as applied to analogous whistleblower provision in the Sarbanes-Oxley Act); Araujo v. New Jersey Transit Rail Ops., Inc., 708 F.3d 152, 158 (3d Cir. 2013) (discussing Marano as applied to analogous whistleblower provision in the Federal Railroad Safety Act). For protected activity to be a contributing factor in the adverse action, “ ‘a complainant need not necessarily prove that the respondent's articulated reason was a pretext in order to prevail,' because a complainant alternatively can prevail by showing that the respondent's `reason, while true, is only one of the reasons for its conduct,' and that another reason was the complainant's protected activity.” See Klopfenstein v. PCC Flow Techs. Holdings, Inc., ARB No. 04-149, 2006 WL 3246904, at *13 (ARB May 31, 2006) (quoting Rachid v. Jack in the Box, Inc., 376 F.3d 305, 312 (5th Cir. 2004)) (discussing contributing factor test under the Sarbanes-Oxley Act whistleblower provision), aff'd sub nom. Klopfenstein v. Admin. Rev. Bd., 402 F. App'x 936, 2010 WL 4746668 (5th Cir. 2010).

If OSHA finds reasonable cause to believe that the alleged protected activity was a contributing factor in the adverse action, OSHA may not order relief if the employer demonstrates by “clear and convincing evidence” that it would have taken the same action in the absence of the protected activity. See 49 U.S.C. 30171(b)(2)(B). The “clear and convincing evidence” standard is a higher burden of proof than a “preponderance of the evidence” standard. Clear and convincing evidence is evidence indicating that the thing to be proved is highly probable or reasonably certain. Clarke v. Navajo Express, ARB No. 09-114, 2011 WL 2614326, at *3 (ARB June 29, 2011).

Paragraph (f) describes the procedures OSHA will follow prior to the issuance of findings and a preliminary order when OSHA has reasonable cause to believe that a violation has occurred. Its purpose is to ensure compliance with the Due Process Clause of the Fifth Amendment, as interpreted by the Supreme Court in Brock v. Roadway Express, Inc., 481 U.S. 252 (1987) (requiring OSHA to give a Surface Transportation Assistance Act respondent the opportunity to review the substance of the evidence and respond, prior to ordering preliminary reinstatement).

Section 1988.105 Issuance of Findings and Preliminary Orders

This section provides that, on the basis of information obtained in the investigation, the Assistant Secretary will issue, within 60 days of the filing of a complaint, written findings regarding whether or not there is reasonable cause to believe that the complaint has merit. If the findings are that there is reasonable cause to believe that the complaint has merit, the Assistant Secretary will order appropriate relief, including preliminary reinstatement, affirmative action to abate the violation, back pay with interest, compensatory damages, attorney and expert witness fees, and costs. The findings and, where appropriate, preliminary order, advise the parties of their right to file objections to the findings of the Assistant Secretary and to request a hearing. The findings and, where appropriate, the preliminary order, also advise the respondent of the right to request an award of attorney fees not exceeding $1,000 from the ALJ, regardless of whether the respondent has filed objections, if the respondent alleges that the complaint was frivolous or brought in bad faith. If no objections are filed within 30 days of receipt of the findings, the findings and any preliminary order of the Assistant Secretary become the final decision and order of the Secretary. If objections are timely filed, any order of preliminary reinstatement will take effect, but the remaining provisions of the order will not take effect until administrative proceedings are completed.

The remedies provided under MAP-21 aim to make the complainant whole by restoring the complainant to the position that he or she would have occupied absent the retaliation and to counteract the chilling effect of retaliation on protected whistleblowing in complainant's workplace. The back pay and other remedies appropriate in each case will depend on the individual facts of the case and the complainant's interim earnings must be taken into account in determining the appropriate back pay award. However, OSHA notes that a back pay award under MAP-21 includes not only wages but also may include other compensation that the complainant would have received from the employer absent the retaliation, such as lost bonuses, overtime, benefits, raises and promotions when there is evidence to determine these figures. Thus, for example, a back pay award under MAP-21 might include amounts that the complainant would have earned in commissions or amounts that the employer would have contributed to a 401(k) plan on the complainant's behalf had the complainant not been discharged in retaliation for engaging in protected activity under MAP-21.

In ordering interest on back pay under MAP-21, the Secretary has determined that interest due will be computed by compounding daily the Internal Revenue Service interest rate for the underpayment of taxes, which under 26 U.S.C. 6621 is generally the Federal short-term rate plus three percentage points, against back pay. In the Secretary's view, 26 U.S.C. 6621 provides the appropriate rate of interest to ensure that victims of unlawful retaliation under MAP-21 are made whole. The Secretary has long applied the interest rate in 26 U.S.C. 6621 to calculate interest on back pay in whistleblower cases. Doyle v. Hydro Nuclear Servs., ARB Nos. 99-041, 99-042, 00-012, 2000 WL 694384, at *14-15, 17 (ARB May 17, 2000); see also Cefalu v. Roadway Express, Inc., ARB No. 09-070, 2011 WL 1247212, at *2 (ARB Mar. 17, 2011); Pollock v. Cont'l Express, ARB Nos. 07-073, 08-051, 2010 WL 1776974, at *8 (ARB Apr. 10, 2010); Murray v. Air Ride, Inc., ARB No. 00-045, slip op. at 9 (ARB Dec. 29, 2000). Section 6621 provides the appropriate measure of compensation under MAP-21 and other Department of Labor (DOL)-administered whistleblower statutes because it ensures that the complainant will be placed in the same position he or she would have been in if no unlawful retaliation occurred. See Ass't Sec'y v. Double R. Trucking, Inc., ARB No. 99-061, slip op. at 5 (ARB July 16, 1999) (interest awards pursuant to section 6621 are mandatory elements of complainant's make-whole remedy). Section 6621 provides a reasonably accurate prediction of market outcomes (which represents the loss of investment opportunity by the complainant and the employer's benefit from use of the withheld money) and thus provides the complainant with appropriate make-whole relief. See EEOC v. Erie Cnty., 751 F.2d 79, 82 (2d Cir. 1984) (“[S]ince the goal of a suit under the [Fair Labor Standards Act] and the Equal Pay Act is to make whole the victims of the unlawful underpayment of wages, and since [section 6621] has been adopted as a good indicator of the value of the use of money, it was well within” the district court's discretion to calculate prejudgment interest under § 6621); New Horizons for the Retarded, 283 NLRB No. 181, 1987 WL 89652, at *2 (NLRB May 28, 1987) (observing that “the short-term Federal rate [used by section 6621] is based on average market yields on marketable Federal obligations and is influenced by private economic market forces”).

The Secretary further believes that daily compounding of interest achieves the make-whole purpose of a back pay award. Daily compounding of interest has become the norm in private lending and was found to be the most appropriate method of calculating interest on back pay by the National Labor Relations Board (NLRB). See Jackson Hosp. Corp. v. United Steel, Paper & Forestry, Rubber, Mfg., Energy, Allied Indus. & Serv. Workers Int'l Union, 356 NLRB No. 8, 2010 WL 4318371, at *3-4 (NLRB Oct. 22, 2010). Additionally, interest on tax underpayments under the Internal Revenue Code, 26 U.S.C. 6621, is compounded daily pursuant to 26 U.S.C. 6622(a).

In ordering back pay, OSHA will require the respondent to submit the appropriate documentation to the Social Security Administration (SSA) allocating the back pay to the appropriate calendar quarters. Requiring the reporting of back pay allocation to the SSA serves the remedial purposes of MAP-21 by ensuring that employees subjected to retaliation are truly made whole. See Don Chavas, LLC d/b/a Tortillas Don Chavas, 361 NLRB No. 10, 2014 WL 3897178, at *4-5 (NLRB Aug. 8, 2014). As the NLRB has explained, when back pay is not properly allocated to the years covered by the award, a complainant may be disadvantaged in several ways. First, improper allocation may interfere with a complainant's ability to qualify for any old-age Social Security benefit. Id. at *4 (“Unless a [complainant's] multiyear backpay award is allocated to the appropriate years, she will not receive appropriate credit for the entire period covered by the award, and could therefore fail to qualify for any old-age social security benefit.”). Second, improper allocation may reduce the complainant's eventual monthly benefit. Id. “[I]f a backpay award covering a multi-year period is posted as income for 1 year, it may result in SSA treating the [complainant] as having received wages in that year in excess of the annual contribution and benefit base.” Id. Wages above this base are not subject to Social Security taxes, which reduces the amount paid on the employee's behalf. “As a result, the [complainant's] eventual monthly benefit will be reduced because participants receive a greater benefit when they have paid more into the system.” Id. Finally, “social security benefits are calculated using a progressive formula: Although a participant receives more in benefits when she pays more into the system, the rate of return diminishes at higher annual incomes.” Therefore, a complainant may “receive a smaller monthly benefit when a multiyear award is posted to 1 year rather than being allocated to the appropriate periods, even if social security taxes were paid on the entire amount.” Id. The purpose of a make-whole remedy such as back pay is to put the complainant in the same position the complainant would have been absent the prohibited retaliation. That purpose is not achieved when the complainant suffers the disadvantages described above. The Secretary believes that requiring proper SSA allocation is necessary to achieve the make-whole purpose of a back pay award.

In appropriate circumstances, in lieu of preliminary reinstatement, OSHA may order that the complainant receive the same pay and benefits that he or she received prior to termination but not actually return to work. Such “economic reinstatement” is akin to an order of front pay and frequently is employed in cases arising under section 105(c) of the Federal Mine Safety and Health Act of 1977, which protects miners from retaliation. 30 U.S.C. 815(c); see, e.g., Sec'y of Labor ex rel. York v. BR&D Enters., Inc., 23 FMSHRC 697, 2001 WL 1806020, at *1 (ALJ June 26, 2001). Front pay has been recognized as a possible remedy in cases under the whistleblower statutes enforced by OSHA in circumstances where reinstatement would not be appropriate. See, e.g., Brown v. Lockheed Martin Corp., ALJ No. 2008-SOX-00049, 2010 WL 2054426, at *55-56 (ALJ Jan. 15, 2010) (noting that while reinstatement is the “presumptive remedy” under Sarbanes-Oxley, front pay may be awarded as a substitute when reinstatement is inappropriate); see, e.g., Luder v. Cont'l Airlines, Inc., ARB No. 10-026, 2012 WL 376755, at *11 (ARB Jan. 31, 2012), aff'd, Cont'l Airlines, Inc. v. Admin. Rev. Bd., No. 15-60012, slip op. at 8, 2016 WL 97461, at *4 (5th Cir. Jan. 7, 2016) (unpublished) (under Wendell H. Ford Aviation Investment and Reform Act for the 21st Century, “front-pay is available when reinstatement is not possible”); see also Moder v. Vill. of Jackson, ARB Nos. 01-095, 02-039, 2003 WL 21499864, at *10 (ARB June 30, 2003) (under environmental whistleblower statutes, “front pay may be an appropriate substitute when the parties prove the impossibility of a productive and amicable working relationship, or the company no longer has a position for which the complainant is qualified”); Hobby v. Georgia Power Co., ARB Nos. 98-166, 98-169 (ARB Feb. 9, 2001), aff'd sub nom. Hobby v. U.S. Dep't of Labor, No. 01-10916 (11th Cir. Sept. 30, 2002) (unpublished) (noting circumstances where front pay may be available in lieu of reinstatement but ordering reinstatement). Congress intended that employees be preliminarily reinstated to their positions if OSHA finds reasonable cause to believe that they were discharged in violation of MAP-21. When a violation is found, the norm is for OSHA to order immediate preliminary reinstatement. Neither an employer nor an employee has a statutory right to choose economic reinstatement. Rather, economic reinstatement is designed to accommodate situations in which evidence establishes to OSHA's satisfaction that immediate reinstatement is inadvisable for some reason, notwithstanding the employer's retaliatory discharge of the employee. In such situations, actual reinstatement might be delayed until after the administrative adjudication is completed as long as the employee continues to receive his or her pay and benefits and is not otherwise disadvantaged by a delay in reinstatement. There is no statutory basis for allowing the employer to recover the costs of economically reinstating an employee should the employer ultimately prevail in the whistleblower adjudication.

Subpart B—Litigation Section 1988.106 Objections to the Findings and the Preliminary Order and Requests for a Hearing

To be effective, objections to the findings of the Assistant Secretary must be in writing and must be filed with the Chief Administrative Law Judge, U.S. Department of Labor, within 30 days of receipt of the findings. The date of the postmark, facsimile transmittal, or electronic communication transmittal is considered the date of the filing; if the objection is filed in person, by hand-delivery or other means, the objection is filed upon receipt. The filing of objections also is considered a request for a hearing before an ALJ. Although the parties are directed to serve a copy of their objections on the other parties of record, as well as the OSHA official who issued the findings and order, OSHA, and the U.S. Department of Labor's Associate Solicitor for Fair Labor Standards, the failure to serve copies of the objections on the other parties of record does not affect the ALJ's jurisdiction to hear and decide the merits of the case. See Shirani v. Calvert Cliffs Nuclear Power Plant, Inc., ARB No. 04-101, 2005 WL 2865915, at *7 (ARB Oct. 31, 2005).

The timely filing of objections stays all provisions of the preliminary order, except for the portion requiring reinstatement. A respondent may file a motion to stay the Assistant Secretary's preliminary order of reinstatement with the Office of Administrative Law Judges. However, such a motion will be granted only based on exceptional circumstances. The Secretary believes that a stay of the Assistant Secretary's preliminary order of reinstatement under MAP-21 would be appropriate only where the respondent can establish the necessary criteria for equitable injunctive relief, i.e., irreparable injury, likelihood of success on the merits, a balancing of possible harms to the parties, and the public interest favors a stay. If no timely objection to the Assistant Secretary's findings and/or preliminary order is filed, then the Assistant Secretary's findings and/or preliminary order become the final decision of the Secretary not subject to judicial review.

Section 1988.107 Hearings

This section adopts the rules of practice and procedure for administrative hearings before the Office of Administrative Law Judges, as set forth in 29 CFR part 18 subpart A. This section provides that the hearing is to commence expeditiously, except upon a showing of good cause or unless otherwise agreed to by the parties. Hearings will be conducted de novo, on the record. As noted in this section, formal rules of evidence will not apply, but rules or principles designed to assure production of the most probative evidence will be applied. The ALJ may exclude evidence that is immaterial, irrelevant, or unduly repetitious.

Section 1988.108 Role of Federal Agencies

The Assistant Secretary, at his or her discretion, may participate as a party or amicus curiae at any time in the administrative proceedings under MAP-21. For example, the Assistant Secretary may exercise his or her discretion to prosecute the case in the administrative proceeding before an ALJ; petition for review of a decision of an ALJ, including a decision based on a settlement agreement between the complainant and the respondent, regardless of whether the Assistant Secretary participated before the ALJ; or participate as amicus curiae before the ALJ or in the ARB proceeding. Although OSHA anticipates that ordinarily the Assistant Secretary will not participate, the Assistant Secretary may choose to do so in appropriate cases, such as cases involving important or novel legal issues, multiple employees, alleged violations that appear egregious, or where the interests of justice might require participation by the Assistant Secretary. The NHTSA, if interested in a proceeding, also may participate as amicus curiae at any time in the proceedings.

Section 1988.109 Decision and Orders of the Administrative Law Judge

This section sets forth the requirements for the content of the decision and order of the ALJ, and includes the standard for finding a violation under MAP-21. Specifically, the complainant must demonstrate (i.e. prove by a preponderance of the evidence) that the protected activity was a “contributing factor” in the adverse action. See, e.g., Allen v. Admin. Rev. Bd., 514 F.3d 468, 475 n.1 (5th Cir. 2008) (“The term `demonstrates' [under identical burden-shifting scheme in the Sarbanes-Oxley whistleblower provision] means to prove by a preponderance of the evidence.”). If the employee demonstrates that the alleged protected activity was a contributing factor in the adverse action, the employer, to escape liability, must demonstrate by “clear and convincing evidence” that it would have taken the same action in the absence of the protected activity. See 49 U.S.C. 30171(b)(2)(B).

Paragraph (c) of this section further provides that OSHA's determination to dismiss the complaint without an investigation or without a complete investigation under section 1988.104 is not subject to review. Thus, section 1988.109(c) clarifies that OSHA's determinations on whether to proceed with an investigation under MAP-21 and whether to make particular investigative findings are discretionary decisions not subject to review by the ALJ. The ALJ hears cases de novo and, therefore, as a general matter, may not remand cases to OSHA to conduct an investigation or make further factual findings. Paragraph (d) notes the remedies that the ALJ may order under MAP-21 and, as discussed under section 1988.105 above, provides that interest on back pay will be calculated using the interest rate applicable to underpayment of taxes under 26 U.S.C. 6621 and will be compounded daily, and that the respondent will be required to submit appropriate documentation to the SSA allocating any back pay award to the appropriate calendar quarters. Paragraph (e) requires that the ALJ's decision be served on all parties to the proceeding, OSHA, and the U.S. Department of Labor's Associate Solicitor for Fair Labor Standards. Paragraph (e) also provides that any ALJ decision requiring reinstatement or lifting an order of reinstatement by the Assistant Secretary will be effective immediately upon receipt of the decision by the respondent. All other portions of the ALJ's order will be effective 14 days after the date of the decision unless a timely petition for review has been filed with the ARB. If no timely petition for review is filed with the ARB, the decision of the ALJ becomes the final decision of the Secretary and is not subject to judicial review.

Section 1988.110 Decision and Orders of the Administrative Review Board

Upon the issuance of the ALJ's decision, the parties have 14 days within which to petition the ARB for review of that decision. The date of the postmark, facsimile transmittal, or electronic communication transmittal is considered the date of filing of the petition; if the petition is filed in person, by hand delivery or other means, the petition is considered filed upon receipt.

The appeal provisions in this part provide that an appeal to the ARB is not a matter of right but is accepted at the discretion of the ARB. The parties should identify in their petitions for review the legal conclusions or orders to which they object, or the objections may be deemed waived. The ARB has 30 days to decide whether to grant the petition for review. If the ARB does not grant the petition, the decision of the ALJ becomes the final decision of the Secretary. If a timely petition for review is filed with the ARB, any relief ordered by the ALJ, except for that portion ordering reinstatement, is inoperative while the matter is pending before the ARB. When the ARB accepts a petition for review, the ALJ's factual determinations will be reviewed under the substantial evidence standard.

This section also provides that, based on exceptional circumstances, the ARB may grant a motion to stay an ALJ's preliminary order of reinstatement under MAP-21, which otherwise would be effective, while review is conducted by the ARB. The Secretary believes that a stay of an ALJ's preliminary order of reinstatement under MAP-21 would be appropriate only where the respondent can establish the necessary criteria for equitable injunctive relief, i.e., irreparable injury, likelihood of success on the merits, a balancing of possible harms to the parties, and the public interest favors a stay.

If the ARB concludes that the respondent has violated the law, it will issue a final order providing relief to the complainant. The final order will require, where appropriate: Affirmative action to abate the violation; reinstatement of the complainant to his or her former position, together with the compensation (including back pay and interest), terms, conditions, and privileges of employment; and payment of compensatory damages, including, at the request of the complainant, the aggregate amount of all costs and expenses (including attorney and expert witness fees) reasonably incurred. Interest on back pay will be calculated using the interest rate applicable to underpayment of taxes pursuant to 26 U.S.C. 6621 and will be compounded daily, and the respondent will be required to submit appropriate documentation to the SSA allocating any back pay award to the appropriate calendar quarters. If the ARB determines that the respondent has not violated the law, an order will be issued denying the complaint. If, upon the request of the respondent, the ARB determines that a complaint was frivolous or was brought in bad faith, the ARB may award to the respondent a reasonable attorney fee, not exceeding $1,000.

Subpart C—Miscellaneous Provisions Section 1988.111 Withdrawal of Complaints, Findings, Objections, and Petitions for Review; Settlement

This section provides the procedures and time periods for withdrawal of complaints, the withdrawal of findings and/or preliminary orders by the Assistant Secretary, and the withdrawal of objections to findings and/or orders. It permits complainants to withdraw their complaints orally, and provides that, in such circumstances, OSHA will confirm a complainant's desire to withdraw in writing. It also provides for approval of settlements at the investigative and adjudicative stages of the case.

Section 1988.112 Judicial Review

This section describes the statutory provisions for judicial review of decisions of the Secretary and requires, in cases where judicial review is sought, the ARB or the ALJ to submit the record of proceedings to the appropriate court pursuant to the rules of such court.

Section 1988.113 Judicial Enforcement

This section describes the Secretary's authority under MAP-21 to obtain judicial enforcement of orders and terms of settlement agreements. MAP-21 expressly authorizes district courts to enforce orders issued by the Secretary under 49 U.S.C. 30171. Specifically, the statute provides that “[w]henever any person fails to comply with an order issued under paragraph (3), the Secretary [of Labor] may file a civil action in the United States district court for the district in which the violation was found to occur to enforce such order. In actions brought under this paragraph, the district courts shall have jurisdiction to grant all appropriate relief, including injunctive relief and compensatory damages.” 49 U.S.C. 30171(b)(5).

All orders issued by the Secretary under 49 U.S.C. 30171 may also be enforced by any person on whose behalf an order was issued in district court, under 49 U.S.C. 30171(b)(6). The Secretary interprets these provisions to grant the district court authority to enforce preliminary orders of reinstatement. Subsection (b)(3) provides that the Secretary shall order the person who has committed a violation to reinstate the complainant to his or her former position, (49 U.S.C. 30171(b)(3)(B)(ii)). Subsection (b)(2) also instructs the Secretary to accompany any reasonable cause finding that a violation has occurred with a preliminary order containing the relief prescribed by paragraph (b)(3)(B), which includes reinstatement, (see 49 U.S.C. 30171(b)(3)(B)). Subsection (b)(2)(A) declares that any reinstatement remedy contained in a preliminary order is not stayed upon the filing of objections. 49 U.S.C. 30171(b)(2)(A) (“The filing of such objections shall not operate to stay any reinstatement remedy contained in the preliminary order.”). Thus, under the statute, enforceable orders under paragraph (b)(3) include both preliminary orders issued under subsection (b)(2)(A) and final orders issued under subsection (b)(3), both of which may contain the relief of reinstatement as prescribed by subsection (b)(3)(B).

This statutory interpretation is consistent with the Secretary's interpretation of similar language in the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century, 49 U.S.C. 42121, and Section 806 of the Corporate and Criminal Fraud Accountability Act of 2002, Title VIII of the Sarbanes-Oxley Act of 2002, 18 U.S.C. 1514A. See Brief for the Intervenor/Plaintiff-Appellee Secretary of Labor, Solis v. Tenn. Commerce Bancorp, Inc., No. 10-5602 (6th Cir. 2010); Solis v. Tenn. Commerce Bancorp, Inc., 713 F. Supp. 2d 701 (M.D. Tenn. 2010); but see Bechtel v. Competitive Techs., Inc., 448 F.3d 469 (2d Cir. 2006); Welch v. Cardinal Bankshares Corp., 454 F. Supp. 2d 552 (W.D. Va. 2006), (decision vacated, appeal dismissed, No. 06-2295 (4th Cir. Feb. 20, 2008)).

Section 1988.114  District Court Jurisdiction of Retaliation Complaints

This section sets forth MAP-21's provisions allowing a complainant to bring an original de novo action in district court, alleging the same allegations contained in the complaint filed with OSHA, if there has been no final decision of the Secretary within 210 days after the date of the filing of the complaint. See 49 U.S.C. 30171(b)(3)(E). This section also incorporates the statutory provisions that allow for a jury trial at the request of either party in a district court action and that specify the burdens of proof in a district court action.

This section also requires that, within seven days after filing a complaint in district court, a complainant must provide a file-stamped copy of the complaint to OSHA, the ALJ, or the ARB, depending on where the proceeding is pending. A copy of the district court complaint also must be provided to the OSHA official who issued the findings and/or preliminary order, the Assistant Secretary, and the U.S. Department of Labor's Associate Solicitor for Fair Labor Standards. This provision is necessary to notify the agency that the complainant has opted to file a complaint in district court. This provision is not a substitute for the complainant's compliance with the requirements for service of process of the district court complaint contained in the Federal Rules of Civil Procedure and the local rules of the district court where the complaint is filed.

Finally, the Secretary notes that although a complainant may file an action in district court if the Secretary has not issued a final decision within 210 days of the filing of the complaint with OSHA, it is the Secretary's position that complainants may not initiate an action in federal court after the Secretary issues a final decision, even if the date of the final decision is more than 210 days after the filing of the complaint. Thus, for example, after the ARB has issued a final decision denying a whistleblower complaint, the complainant no longer may file an action for de novo review in federal district court. The purpose of the “kick-out” provision is to aid the complainant in receiving a prompt decision. That goal is not implicated in a situation where the complainant already has received a final decision from the Secretary. In addition, permitting the complainant to file a new case in district court in such circumstances could conflict with the parties' rights to seek judicial review of the Secretary's final decision in the court of appeals. See 49 U.S.C. 30171(b)(4)(B) (providing that an order with respect to which review could have been obtained in the court of appeals shall not be subject to judicial review in any criminal or other civil proceeding).

Section 1988.115 Special Circumstances; Waiver of Rules

This section provides that, in circumstances not contemplated by these rules or for good cause, the ALJ or the ARB may, upon application and notice to the parties, waive any rule as justice or the administration of MAP-21 requires.

IV. Paperwork Reduction Act

This rule contains a reporting provision (filing a retaliation complaint, section 1988.103) which was previously reviewed as a statutory requirement of MAP-21 and approved for use by the Office of Management and Budget (OMB), as part of the Information Collection Request (ICR) assigned OMB control number 1218-0236 under the provisions of the Paperwork Reduction Act of 1995 (PRA). See Public Law 104-13, 109 Stat. 163 (1995). An ICR has been submitted to OMB to include the regulatory citation.

OSHA has a particular interest in comments on the following issues:

• Whether the proposed information collection requirements are necessary for the proper performance of the Agency's functions, including whether the information is useful;

• The accuracy of OSHA's estimate of the burden (time and costs) of the information collection requirements, including the validity of the methodology and assumptions used;

• Enhancing the quality, utility, and clarity of the information collected; and

• Minimizing the burden on employees who must comply; for example, by using automated or other technological information collection and transmission techniques.

In addition to having an opportunity to file comments with the Department, the PRA provides that an interested party may file comments on the information collection requirements contained in an interim final rule directly with OMB by mail: Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for DOL-OSHA, Office of Management and Budget, Room 10235, 725 17th Street NW., Washington, DC 20503; by Fax: 202-395-5806 (this is not a toll-free number); or by email: [email protected] Commenters are encouraged, but not required, to send a courtesy copy of any comments to the Department. See ADDRESSES section of the preamble. OMB will consider all written comments that the agency receives within thirty (30) days of publication of this Interim Final Rule in the Federal Register. In order to help ensure appropriate consideration, comments should mention OMB control number 1218-0236. Comments submitted in response to this rule are public records; therefore, OSHA cautions commenters about submitting personal information such as Social Security numbers and date of birth.

To access the complete electronic copy of the related ICR, containing the Supporting Statement with attachments describing the paperwork requirement and determinations of the ICR in detail, visit the Web page, http://www.reginfo.gov/public/do/PRAMain, select “Department of Labor” under the “Currently under Review” to view all DOL ICRs currently under OMB consideration, including the ICR related to this rulemaking.

OSHA notes that a federal agency cannot conduct or sponsor a collection of information unless it is approved by OMB under the PRA and displays a currently valid OMB control number, and the public is not required to respond to a collection of information unless the collection of information displays a currently valid OMB control number. Also, notwithstanding any other provision of law, no person shall be subject to penalty for failing to comply with a collection of information if the collection of information does not display a currently valid OMB control number.

V. Administrative Procedure Act

The notice and comment rulemaking procedures of Section 553 of the Administrative Procedure Act (APA) do not apply “to interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice.” 5 U.S.C. 553(b)(A). This is a rule of agency procedure, practice, and interpretation within the meaning of that section. Therefore, publication in the Federal Register of a notice of proposed rulemaking and request for comments are not required for this rule, which provides the procedures for the handling of retaliation complaints. Although this is a procedural and interpretive rule not subject to the notice and comment procedures of the APA, OSHA is providing persons interested in this interim final rule 60 days to submit comments. A final rule will be published after OSHA receives and reviews the public's comments.

Furthermore, because this rule is procedural and interpretative rather than substantive, the normal requirement of 5 U.S.C. 553(d) that a rule be effective 30 days after publication in the Federal Register is inapplicable. OSHA also finds good cause to provide an immediate effective date for this interim final rule. It is in the public interest that the rule be effective immediately so that parties may know what procedures are applicable to pending cases.

VI. Executive Orders 12866 and 13563; Unfunded Mandates Reform Act of 1995; Executive Order 13132

The Department has concluded that this rule is not a “significant regulatory action” within the meaning of Executive Order 12866, reaffirmed by Executive Order 13563, because it is not likely to: (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or Tribal governments or communities; (2) create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in Executive Order 12866. Therefore, no economic impact analysis under Section 6(a)(3)(C) of Executive Order 12866 has been prepared. For the same reason, and because no notice of proposed rulemaking has been published, no statement is required under Section 202 of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1532. In any event, this rulemaking is procedural and interpretive in nature and is thus not expected to have a significant economic impact. Finally, this rule does not have “federalism implications.” The rule does not have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government” and therefore is not subject to Executive Order 13132 (Federalism).

VII. Regulatory Flexibility Analysis

The notice and comment rulemaking procedures of Section 553 of the APA do not apply “to interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice.” 5 U.S.C. 553(b)(A). Rules that are exempt from APA notice and comment requirements are also exempt from the Regulatory Flexibility Act (RFA). See Small Business Administration Office of Advocacy, A Guide for Government Agencies: How to Comply with the Regulatory Flexibility Act, at 9; also found at https://www.sba.gov/advocacy/guide-government-agencies-how-comply-regulatory-flexibility-act. This is a rule of agency procedure, practice, and interpretation within the meaning of 5 U.S.C. 553; and, therefore, the rule is exempt from both the notice and comment rulemaking procedures of the APA and the requirements under the RFA.

List of Subjects in 29 CFR Part 1988

Administrative practice and procedure, Automobile dealers, Employment, Investigations, Motor vehicle defects, Motor vehicle manufacturers, Part supplies, Reporting and recordkeeping requirements, Whistleblower.

Authority and Signature

This document was prepared under the direction and control of David Michaels, Ph.D., MPH, Assistant Secretary of Labor for Occupational Safety and Health.

Signed at Washington, DC, on February 25, 2016. David Michaels, Assistant Secretary of Labor for Occupational Safety and Health. Accordingly, for the reasons set out in the preamble, 29 CFR part 1988 is added to read as follows: PART 1988—PROCEDURES FOR HANDLING RETALIATION COMPLAINTS UNDER SECTION 31307 OF THE MOVING AHEAD FOR PROGRESS IN THE 21ST CENTURY ACT (MAP-21) Subpart A—Complaints, Investigations, Findings and Preliminary Orders Sec. 1988.100 Purpose and scope. 1988.101 Definitions. 1988.102 Obligations and prohibited acts. 1988.103 Filing of retaliation complaint. 1988.104 Investigation. 1988.105 Issuance of findings and preliminary orders. Subpart B—Litigation 1988.106 Objections to the findings and the preliminary order and requests for a hearing. 1988.107 Hearings. 1988.108 Role of Federal agencies. 1988.109 Decision and orders of the administrative law judge. 1988.110 Decision and orders of the Administrative Review Board. Subpart C—Miscellaneous Provisions 1988.111 Withdrawal of complaints, findings, objections, and petitions for review; settlement. 1988.112 Judicial review. 1988.113 Judicial enforcement. 1988.114 District court jurisdiction of retaliation complaints. 1988.115 Special circumstances; waiver of rules. Authority:

49 U.S.C. 30171; Secretary of Labor's Order No. 1-2012 (Jan. 18, 2012), 77 FR 3912 (Jan. 25, 2012); Secretary of Labor's Order No. 2-2012 (Oct. 19, 2012), 77 FR 69378 (Nov. 16, 2012).

Subpart A—Complaints, Investigations, Findings and Preliminary Orders
§ 1988.100 Purpose and scope.

(a) This part sets forth procedures for, and interpretations of, section 31307 of the Moving Ahead for Progress in the 21st Century Act (MAP-21), Public Law 112-141, 126 Stat. 405, 765 (July 6, 2012) (codified at 49 U.S.C. 30171). MAP-21 provides for employee protection from retaliation because the employee has engaged in protected activity pertaining to the manufacture or sale of motor vehicles and motor vehicle equipment.

(b) This part establishes procedures under MAP-21 for the expeditious handling of retaliation complaints filed by employees, or by persons acting on their behalf. These rules, together with those codified at 29 CFR part 18, set forth the procedures under MAP-21 for submission of complaints, investigations, issuance of findings and preliminary orders, objections to findings and orders, litigation before administrative law judges (ALJs), post-hearing administrative review, and withdrawals and settlements. In addition, these rules provide the Secretary's interpretations on certain statutory issues.

§ 1988.101 Definitions.

As used in this part:

Assistant Secretary means the Assistant Secretary of Labor for Occupational Safety and Health or the person or persons to whom he or she delegates authority under MAP-21.

Business days means days other than Saturdays, Sundays, and Federal holidays.

Complainant means the person who filed a MAP-21 complaint or on whose behalf a complaint was filed.

Dealer or Dealership means a person selling and distributing new motor vehicles or motor vehicle equipment primarily to purchasers that in good faith purchase the vehicles or equipment other than for resale.

Defect includes any defect in performance, construction, a component, or material of a motor vehicle or motor vehicle equipment.

Employee means an individual presently or formerly working for, an individual applying to work for, or an individual whose employment could be affected by a motor vehicle manufacturer, dealer, part supplier, or dealership.

Manufacturer means a person:

(1) Manufacturing or assembling motor vehicles or motor vehicle equipment; or

(2) Importing motor vehicles or motor vehicles equipment for resale.

MAP-21 means Section 31307 of the Moving Ahead for Progress in the 21st Century Act of 2012, Pub. L. 112-141, 126 Stat. 405, 765 (July 6, 2012) (codified at 49 U.S.C. 30171).

Motor vehicle means a vehicle driven or drawn by mechanical power and manufactured primarily for use on public streets, roads, and highways, but does not include a vehicle operated only on a rail line.

Motor vehicle equipment means—

(1) Any system, part, or component of a motor vehicle as originally manufactured;

(2) Any similar part or component manufactured or sold for replacement or improvement of a system, part, or component, or as an accessory or addition to a motor vehicle; or

(3) Any device or an article or apparel, including a motorcycle helmet and excluding medicine or eyeglasses prescribed by a licensed practitioner, that—

(i) Is not a system, part or component of a motor vehicle; and

(ii) Is manufactured, sold, delivered, or offered to be sold for use on public streets, roads, and highways with the apparent purpose of safeguarding users of motor vehicles against risk of accident, injury, or death.

NHTSA means the National Highway Traffic Safety Administration of the United States Department of Transportation.

OSHA means the Occupational Safety and Health Administration of the United States Department of Labor.

Person means an individual, partnership, company, corporation, association (incorporated or unincorporated), trust, estate, cooperative organization, or other entity.

Respondent means the person named in the complaint who is alleged to have violated MAP-21.

Secretary means the Secretary of Labor.

§ 1988.102 Obligations and prohibited acts.

(a) No motor vehicle manufacturer, part supplier, or dealership may discharge or otherwise retaliate against, including, but not limited to, intimidating, threatening, restraining, coercing, blacklisting or disciplining, an employee with respect to the employee's compensation, terms, conditions, or privileges of employment because the employee, or any person acting pursuant to the employee's request, has engaged in any of the activities specified in paragraphs (b)(1) through (5) of this section.

(b) An employee is protected against retaliation (as described in paragraph (a) of this section) by a motor vehicle manufacturer, part supplier, or dealership because he or she:

(1) Provided, caused to be provided, or is about to provide (with any knowledge of the employer) or cause to be provided to the employer or the Secretary of Transportation, information relating to any motor vehicle defect, noncompliance, or any violation or alleged violation of any notification or reporting requirement of Chapter 301 of Title 49 of the United States Code;

(2) Filed, or caused to be filed, or is about to file (with any knowledge of the employer) or cause to be filed a proceeding relating to any motor vehicle defect, noncompliance, or any violation or alleged violation of any notification or reporting requirement of Chapter 301 of Title 49 of the United States Code;

(3) Testified or is about to testify in such a proceeding;

(4) Assisted or participated or is about to assist or participate in such a proceeding; or

(5) Objected to, or refused to participate in, any activity that the employee reasonably believed to be in violation of any provision of Chapter 301 of Title 49 of the United States Code, or any order, rule, regulation, standard, or ban under such provision.

§ 1988.103 Filing of retaliation complaint.

(a) Who may file. A person who believes that he or she has been discharged or otherwise retaliated against by any person in violation of MAP-21 may file, or have filed by any person on his or her behalf, a complaint alleging such retaliation.

(b) Nature of filing. No particular form of complaint is required. A complaint may be filed orally or in writing. Oral complaints will be reduced to writing by OSHA. If the complainant is unable to file the complaint in English, OSHA will accept the complaint in any language.

(c) Place of filing. The complaint should be filed with the OSHA office responsible for enforcement activities in the geographical area where the complainant resides or was employed, but may be filed with any OSHA officer or employee. Addresses and telephone numbers for these officials are set forth in local directories and at the following Internet address: http://www.osha.gov.

(d) Time for filing. Within 180 days after an alleged violation of MAP-21 occurs, any person who believes that he or she has been retaliated against in violation of the MAP-21 may file, or have filed by any person on his or her behalf, a complaint alleging such retaliation. The date of the postmark, facsimile transmittal, electronic communication transmittal, telephone call, hand-delivery, delivery to a third-party commercial carrier, or in-person filing at an OSHA office will be considered the date of filing. The time for filing a complaint may be tolled for reasons warranted by applicable case law. For example, OSHA may consider the time for filing a complaint to be tolled if a complainant mistakenly files a complaint with an agency other than OSHA within 180 days after an alleged adverse action.

§ 1988.104 Investigation.

(a) Upon receipt of a complaint in the investigating office, OSHA will notify the respondent of the filing of the complaint, of the allegations contained in the complaint, and of the substance of the evidence supporting the complaint. Such materials will be redacted, if necessary, consistent with the Privacy Act of 1974, 5 U.S.C. 552a, and other applicable confidentiality laws. OSHA will also notify the respondent of its rights under paragraphs (b) and (f) of this section and paragraph (e) of § 1988.110. OSHA will provide an unredacted copy of these same materials to the complainant (or the complainant's legal counsel if complainant is represented by counsel) and to the NHTSA.

(b) Within 20 days of receipt of the notice of the filing of the complaint provided under paragraph (a) of this section, the respondent may submit to OSHA a written statement and any affidavits or documents substantiating its position. Within the same 20 days, the respondent may request a meeting with OSHA to present its position.

(c) During the investigation, OSHA will request that each party provide the other parties to the whistleblower complaint with a copy of submissions to OSHA that are pertinent to the whistleblower complaint. Alternatively, if a party does not provide its submissions to OSHA to the other party, OSHA will provide them to the other party (or the party's legal counsel if the party is represented by counsel) at a time permitting the other party an opportunity to respond. Before providing such materials to the other party, OSHA will redact them, if necessary, consistent with the Privacy Act of 1974, 5 U.S.C. 552a, and other applicable confidentiality laws. OSHA will also provide each party with an opportunity to respond to the other party's submissions.

(d) Investigations will be conducted in a manner that protects the confidentiality of any person who provides information on a confidential basis, other than the complainant, in accordance with part 70 of this title.

(e)(1) A complaint will be dismissed unless the complainant has made a prima facie showing that a protected activity was a contributing factor in the adverse action alleged in the complaint.

(2) The complaint, supplemented as appropriate by interviews of the complainant, must allege the existence of facts and evidence to make a prima facie showing as follows:

(i) The employee engaged in a protected activity;

(ii) The respondent knew or suspected that the employee engaged in the protected activity;

(iii) The employee suffered an adverse action; and

(iv) The circumstances were sufficient to raise the inference that the protected activity was a contributing factor in the adverse action.

(3) For purposes of determining whether to investigate, the complainant will be considered to have met the required burden if the complaint on its face, supplemented as appropriate through interviews of the complainant, alleges the existence of facts and either direct or circumstantial evidence to meet the required showing, i.e., to give rise to an inference that the respondent knew or suspected that the employee engaged in protected activity and that the protected activity was a contributing factor in the adverse action. The burden may be satisfied, for example, if the complaint shows that the adverse action took place within a temporal proximity of the protected activity, or at the first opportunity available to the respondent, giving rise to the inference that it was a contributing factor in the adverse action. If the required showing has not been made, the complainant (or the complainant's legal counsel if complainant is represented by counsel) will be so notified and the investigation will not commence.

(4) Notwithstanding a finding that a complainant has made a prima facie showing, as required by this section, further investigation of the complaint will not be conducted if the respondent demonstrates by clear and convincing evidence that it would have taken the same adverse action in the absence of the complainant's protected activity.

(5) If the respondent fails to make a timely response or fails to satisfy the burden set forth in the prior paragraph, OSHA will proceed with the investigation. The investigation will proceed whenever it is necessary or appropriate to confirm or verify the information provided by the respondent.

(f) Prior to the issuance of findings and a preliminary order as provided for in § 1988.105, if OSHA has reasonable cause, on the basis of information gathered under the procedures of this part, to believe that the respondent has violated MAP-21 and that preliminary reinstatement is warranted, OSHA will contact the respondent (or the respondent's legal counsel if respondent is represented by counsel) to give notice of the substance of the relevant evidence supporting the complainant's allegations as developed during the course of the investigation. This evidence includes any witness statements, which will be redacted to protect the identity of confidential informants where statements were given in confidence; if the statements cannot be redacted without revealing the identity of confidential informants, summaries of their contents will be provided. The complainant will also receive a copy of the materials that must be provided to the respondent under this paragraph. Before providing such materials, OSHA will redact them, if necessary, consistent with the Privacy Act of 1974, 5 U.S.C. 552a, and other applicable confidentiality laws. The respondent will be given the opportunity to submit a written response, to meet with the investigator, to present statements from witnesses in support of its position, and to present legal and factual arguments. The respondent must present this evidence within 10 business days of OSHA's notification pursuant to this paragraph, or as soon thereafter as OSHA and the respondent can agree, if the interests of justice so require.

§ 1988.105 Issuance of findings and preliminary orders.

(a) After considering all the relevant information collected during the investigation, the Assistant Secretary will issue, within 60 days of the filing of the complaint, written findings as to whether or not there is reasonable cause to believe that the respondent has retaliated against the complainant in violation of MAP-21.

(1) If the Assistant Secretary concludes that there is reasonable cause to believe that a violation has occurred, the Assistant Secretary will accompany the findings with a preliminary order providing relief to the complainant. The preliminary order will require, where appropriate: Affirmative action to abate the violation; reinstatement of the complainant to his or her former position, together with the compensation (including back pay and interest), terms, conditions and privileges of the complainant's employment; and payment of compensatory damages, including, at the request of the complainant, the aggregate amount of all costs and expenses (including attorney and expert witness fees) reasonably incurred. Interest on back pay will be calculated using the interest rate applicable to underpayment of taxes under 26 U.S.C. 6621 and will be compounded daily. The preliminary order will also require the respondent to submit appropriate documentation to the Social Security Administration allocating any back pay award to the appropriate calendar quarters.

(2) If the Assistant Secretary concludes that a violation has not occurred, the Assistant Secretary will notify the parties of that finding.

(b) The findings and, where appropriate, the preliminary order will be sent by certified mail, return receipt requested (or other means that allow OSHA to confirm receipt), to all parties of record (and each party's legal counsel if the party is represented by counsel). The findings and, where appropriate, the preliminary order will inform the parties of the right to object to the findings and/or order and to request a hearing, and of the right of the respondent to request an award of attorney fees not exceeding $1,000 from the ALJ, regardless of whether the respondent has filed objections, if the respondent alleges that the complaint was frivolous or brought in bad faith. The findings and, where appropriate, the preliminary order also will give the address of the Chief Administrative Law Judge, U.S. Department of Labor. At the same time, the Assistant Secretary will file with the Chief Administrative Law Judge a copy of the original complaint and a copy of the findings and/or order.

(c) The findings and any preliminary order will be effective 30 days after receipt by the respondent (or the respondent's legal counsel if the respondent is represented by counsel), or on the compliance date set forth in the preliminary order, whichever is later, unless an objection and/or a request for hearing has been timely filed as provided at § 1988.106. However, the portion of any preliminary order requiring reinstatement will be effective immediately upon the respondent's receipt of the findings and the preliminary order, regardless of any objections to the findings and/or the order.

Subpart B—Litigation
§ 1988.106 Objections to the findings and the preliminary order and requests for a hearing.

(a) Any party who desires review, including judicial review, of the findings and/or preliminary order, or a respondent alleging that the complaint was frivolous or brought in bad faith who seeks an award of attorney fees under MAP-21, must file any objections and/or a request for a hearing on the record within 30 days of receipt of the findings and preliminary order pursuant to § 1988.105. The objections, request for a hearing, and/or request for attorney fees must be in writing and state whether the objections are to the findings, the preliminary order, and/or whether there should be an award of attorney fees. The date of the postmark, facsimile transmittal, or electronic communication transmittal is considered the date of filing; if the objection is filed in person, by hand delivery or other means, the objection is filed upon receipt. Objections must be filed with the Chief Administrative Law Judge, U.S. Department of Labor, and copies of the objections must be mailed at the same time to the other parties of record, the OSHA official who issued the findings and order, the Assistant Secretary, and the Associate Solicitor, Division of Fair Labor Standards, U.S. Department of Labor.

(b) If a timely objection is filed, all provisions of the preliminary order will be stayed, except for the portion requiring preliminary reinstatement, which will not be automatically stayed. The portion of the preliminary order requiring reinstatement will be effective immediately upon the respondent's receipt of the findings and preliminary order, regardless of any objections to the order. The respondent may file a motion with the Office of Administrative Law Judges for a stay of the Assistant Secretary's preliminary order of reinstatement, which shall be granted only based on exceptional circumstances. If no timely objection is filed with respect to either the findings or the preliminary order, the findings and/or the preliminary order will become the final decision of the Secretary, not subject to judicial review.

§ 1988.107 Hearings.

(a) Except as provided in this part, proceedings will be conducted in accordance with the rules of practice and procedure for administrative hearings before the Office of Administrative Law Judges, codified at subpart A of part 18 of this title.

(b) Upon receipt of an objection and request for hearing, the Chief Administrative Law Judge will promptly assign the case to an ALJ who will notify the parties, by certified mail, of the day, time, and place of hearing. The hearing is to commence expeditiously, except upon a showing of good cause or unless otherwise agreed to by the parties. Hearings will be conducted de novo on the record. ALJs have broad discretion to limit discovery in order to expedite the hearing.

(c) If both the complainant and the respondent object to the findings and/or order, the objections will be consolidated and a single hearing will be conducted.

(d) Formal rules of evidence will not apply, but rules or principles designed to assure production of the most probative evidence will be applied. The ALJ may exclude evidence that is immaterial, irrelevant, or unduly repetitious.

§ 1988.108 Role of Federal agencies.

(a)(1) The complainant and the respondent will be parties in every proceeding and must be served with copies of all documents in the case. At the Assistant Secretary's discretion, the Assistant Secretary may participate as a party or as amicus curiae at any time at any stage of the proceeding. This right to participate includes, but is not limited to, the right to petition for review of a decision of an ALJ, including a decision approving or rejecting a settlement agreement between the complainant and the respondent.

(2) Parties must send copies of documents to OSHA and to the Associate Solicitor, Division of Fair Labor Standards, U.S. Department of Labor, only upon request of OSHA, or when OSHA is participating in the proceeding, or when service on OSHA and the Associate Solicitor is otherwise required by these rules.

(b) The NHTSA, if interested in a proceeding, may participate as amicus curiae at any time in the proceeding, at NHTSA's discretion. At the request of NHTSA, copies of all documents in a case must be sent to NHTSA, whether or not it is participating in the proceeding.

§ 1988.109 Decision and orders of the administrative law judge.

(a) The decision of the ALJ will contain appropriate findings, conclusions, and an order pertaining to the remedies provided in paragraph (d) of this section, as appropriate. A determination that a violation has occurred may be made only if the complainant has demonstrated by a preponderance of the evidence that protected activity was a contributing factor in the adverse action alleged in the complaint.

(b) If the complainant has satisfied the burden set forth in the prior paragraph, relief may not be ordered if the respondent demonstrates by clear and convincing evidence that it would have taken the same adverse action in the absence of any protected activity.

(c) Neither OSHA's determination to dismiss a complaint without completing an investigation pursuant to § 1988.104(e) nor OSHA's determination to proceed with an investigation is subject to review by the ALJ, and a complaint may not be remanded for the completion of an investigation or for additional findings on the basis that a determination to dismiss was made in error. Rather, if there otherwise is jurisdiction, the ALJ will hear the case on the merits or dispose of the matter without a hearing if the facts and circumstances warrant.

(d)(1) If the ALJ concludes that the respondent has violated the law, the ALJ will issue an order that will require, where appropriate: Affirmative action to abate the violation; reinstatement of the complainant to his or her former position, together with the compensation (including back pay and interest), terms, conditions, and privileges of the complainant's employment; and payment of compensatory damages, including, at the request of the complainant, the aggregate amount of all costs and expenses (including attorney and expert witness fees) reasonably incurred. Interest on back pay will be calculated using the interest rate applicable to underpayment of taxes under 26 U.S.C. 6621 and will be compounded daily. The order will also require the respondent to submit appropriate documentation to the Social Security Administration allocating any back pay award to the appropriate calendar quarters.

(2) If the ALJ determines that the respondent has not violated the law, an order will be issued denying the complaint. If, upon the request of the respondent, the ALJ determines that a complaint was frivolous or was brought in bad faith, the ALJ may award to the respondent a reasonable attorney fee, not exceeding $1,000.

(e) The decision will be served upon all parties to the proceeding, the Assistant Secretary, and the Associate Solicitor, Division of Fair Labor Standards, U.S. Department of Labor. Any ALJ's decision requiring reinstatement or lifting an order of reinstatement by the Assistant Secretary will be effective immediately upon receipt of the decision by the respondent. All other portions of the ALJ's order will be effective 14 days after the date of the decision unless a timely petition for review has been filed with the Administrative Review Board (ARB), U.S. Department of Labor. The decision of the ALJ will become the final order of the Secretary unless a petition for review is timely filed with the ARB and the ARB accepts the petition for review.

§ 1988.110 Decision and orders of the Administrative Review Board.

(a) Any party desiring to seek review, including judicial review, of a decision of the ALJ, or a respondent alleging that the complaint was frivolous or brought in bad faith who seeks an award of attorney fees, must file a written petition for review with the ARB, which has been delegated the authority to act for the Secretary and issue final decisions under this part. The parties should identify in their petitions for review the legal conclusions or orders to which they object, or the objections may be deemed waived. A petition must be filed within 14 days of the date of the decision of the ALJ. The date of the postmark, facsimile transmittal, or electronic communication transmittal will be considered to be the date of filing; if the petition is filed in person, by hand delivery or other means, the petition is considered filed upon receipt. The petition must be served on all parties and on the Chief Administrative Law Judge at the time it is filed with the ARB. Copies of the petition for review must be served on the Assistant Secretary and on the Associate Solicitor, Division of Fair Labor Standards, U.S. Department of Labor.

(b) If a timely petition for review is filed pursuant to paragraph (a) of this section, the decision of the ALJ will become the final order of the Secretary unless the ARB, within 30 days of the filing of the petition, issues an order notifying the parties that the case has been accepted for review. If a case is accepted for review, the decision of the ALJ will be inoperative unless and until the ARB issues an order adopting the decision, except that any order of reinstatement will be effective while review is conducted by the ARB, unless the ARB grants a motion by the respondent to stay that order based on exceptional circumstances. The ARB will specify the terms under which any briefs are to be filed. The ARB will review the factual determinations of the ALJ under the substantial evidence standard. If no timely petition for review is filed, or the ARB denies review, the decision of the ALJ will become the final order of the Secretary. If no timely petition for review is filed, the resulting final order is not subject to judicial review.

(c) The final decision of the ARB will be issued within 120 days of the conclusion of the hearing, which will be deemed to be 14 days after the decision of the ALJ, unless a motion for reconsideration has been filed with the ALJ in the interim. In such case, the conclusion of the hearing is the date the motion for reconsideration is ruled upon or 14 days after a new decision is issued. The ARB's final decision will be served upon all parties and the Chief Administrative Law Judge by mail. The final decision will also be served on the Assistant Secretary and on the Associate Solicitor, Division of Fair Labor Standards, U.S. Department of Labor, even if the Assistant Secretary is not a party.

(d) If the ARB concludes that the respondent has violated the law, the ARB will issue a final order providing relief to the complainant. The final order will require, where appropriate: Affirmative action to abate the violation; reinstatement of the complainant to his or her former position, together with the compensation (including back pay and interest), terms, conditions, and privileges of the complainant's employment; and payment of compensatory damages, including, at the request of the complainant, the aggregate amount of all costs and expenses (including attorney and expert witness fees) reasonably incurred. Interest on back pay will be calculated using the interest rate applicable to underpayment of taxes under 26 U.S.C. 6621 and will be compounded daily. The order will also require the respondent to submit appropriate documentation to the Social Security Administration allocating any back pay award to the appropriate calendar quarters.

(e) If the ARB determines that the respondent has not violated the law, an order will be issued denying the complaint. If, upon the request of the respondent, the ARB determines that a complaint was frivolous or was brought in bad faith, the ARB may award to the respondent a reasonable attorney fee, not exceeding $1,000.

Subpart C—Miscellaneous Provisions
§ 1988.111 Withdrawal of complaints, findings, objections, and petitions for review; settlement.

(a) At any time prior to the filing of objections to the Assistant Secretary's findings and/or preliminary order, a complainant may withdraw his or her complaint by notifying OSHA, orally or in writing, of his or her withdrawal. OSHA then will confirm in writing the complainant's desire to withdraw and determine whether to approve the withdrawal. OSHA will notify the parties (and each party's legal counsel if the party is represented by counsel) of the approval of any withdrawal. If the complaint is withdrawn because of settlement, the settlement must be submitted for approval in accordance with paragraph (d) of this section. A complainant may not withdraw his or her complaint after the filing of objections to the Assistant Secretary's findings and/or preliminary order.

(b) The Assistant Secretary may withdraw the findings and/or preliminary order at any time before the expiration of the 30-day objection period described in § 1988.106, provided that no objection has been filed yet, and substitute new findings and/or a new preliminary order. The date of the receipt of the substituted findings or order will begin a new 30-day objection period.

(c) At any time before the Assistant Secretary's findings and/or order become final, a party may withdraw objections to the Assistant Secretary's findings and/or order by filing a written withdrawal with the ALJ. If the case is on review with the ARB, a party may withdraw a petition for review of an ALJ's decision at any time before that decision becomes final by filing a written withdrawal with the ARB. The ALJ or the ARB, as the case may be, will determine whether to approve the withdrawal of the objections or the petition for review. If the ALJ approves a request to withdraw objections to the Assistant Secretary's findings and/or order, and there are no other pending objections, the Assistant Secretary's findings and/or order will become the final order of the Secretary. If the ARB approves a request to withdraw a petition for review of an ALJ decision, and there are no other pending petitions for review of that decision, the ALJ's decision will become the final order of the Secretary. If objections or a petition for review are withdrawn because of settlement, the settlement must be submitted for approval in accordance with paragraph (d) of this section.

(d)(1) Investigative settlements. At any time after the filing of a complaint, but before the findings and/or order are objected to or become a final order by operation of law, the case may be settled if OSHA, the complainant, and the respondent agree to a settlement. OSHA's approval of a settlement reached by the respondent and the complainant demonstrates OSHA's consent and achieves the consent of all three parties.

(2) Adjudicatory settlements. At any time after the filing of objections to the Assistant Secretary's findings and/or order, the case may be settled if the participating parties agree to a settlement and the settlement is approved by the ALJ if the case is before the ALJ, or by the ARB if the ARB has accepted the case for review. A copy of the settlement will be filed with the ALJ or the ARB, as appropriate.

(e) Any settlement approved by OSHA, the ALJ, or the ARB will constitute the final order of the Secretary and may be enforced in United States district court pursuant to § 1988.113.

§ 1988.112 Judicial review.

(a) Within 60 days after the issuance of a final order under §§ 1988.109 and 1988.110, any person adversely affected or aggrieved by the order may file a petition for review of the order in the United States Court of Appeals for the circuit in which the violation allegedly occurred or the circuit in which the complainant resided on the date of the violation.

(b) A final order is not subject to judicial review in any criminal or other civil proceeding.

(c) If a timely petition for review is filed, the record of a case, including the record of proceedings before the ALJ, will be transmitted by the ARB or the ALJ, as the case may be, to the appropriate court pursuant to the Federal Rules of Appellate Procedure and the local rules of such court.

§ 1988.113 Judicial enforcement.

Whenever any person has failed to comply with a preliminary order of reinstatement, or a final order, including one approving a settlement agreement, issued under MAP-21, the Secretary may file a civil action seeking enforcement of the order in the United States district court for the district in which the violation was found to have occurred. Whenever any person has failed to comply with a preliminary order of reinstatement, or a final order, including one approving a settlement agreement, issued under MAP-21, a person on whose behalf the order was issued may file a civil action seeking enforcement of the order in the appropriate United States district court.

§ 1988.114 District court jurisdiction of retaliation complaints.

(a) If the Secretary has not issued a final decision with 210 days of the filing of the complaint, and there is no showing that there has been delay due to the bad faith of the complainant, the complainant may bring an action at law or equity for de novo review in the appropriate district court of the United States, which will have jurisdiction over such an action without regard to the amount in controversy. At the request of either party, the action shall be tried by the court with a jury.

(b) A proceeding under paragraph (a) of this section shall be governed by the same legal burdens of proof specified in § 1988.109.

(c) Within seven days after filing a complaint in federal court, a complainant must file with OSHA, the ALJ, or the ARB, depending on where the proceeding is pending, a copy of the file-stamped complaint. A copy of the complaint also must be served on the OSHA official who issued the findings and/or preliminary order, the Assistant Secretary, and the Associate Solicitor, Division of Fair Labor Standards, U.S. Department of Labor.

§ 1988.115 Special circumstances; waiver of rules.

In special circumstances not contemplated by the provisions of these rules, or for good cause shown, the ALJ or the ARB on review may, upon application, after three-days' notice to all parties, waive any rule or issue such orders that justice or the administration of MAP-21 requires.

[FR Doc. 2016-05414 Filed 3-15-16; 8:45 am] BILLING CODE 4510-26-P
DEPARTMENT OF THE TREASURY Office of Foreign Assets Control 31 CFR Part 515 Cuban Assets Control Regulations AGENCY:

Office of Foreign Assets Control, Treasury.

ACTION:

Final rule.

SUMMARY:

The Department of the Treasury's Office of Foreign Assets Control (OFAC) is amending the Cuban Assets Control Regulations to further implement elements of the policy announced by the President on December 17, 2014 to engage and empower the Cuban people. Among other things, these amendments further facilitate travel to Cuba for authorized purposes, expand the range of authorized financial transactions, and authorize additional business and physical presence in Cuba. These amendments also implement certain technical and conforming changes.

DATES:

Effective: March 16, 2016.

FOR FURTHER INFORMATION CONTACT:

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

SUPPLEMENTARY INFORMATION: Electronic and Facsimile Availability

This document and additional information concerning OFAC are available from OFAC's Web site (www.treasury.gov/ofac). Certain general information pertaining to OFAC's sanctions programs also is available via facsimile through a 24-hour fax-on-demand service, tel.: 202-622-0077.

Background

The Department of the Treasury issued the Cuban Assets Control Regulations, 31 CFR part 515 (the “Regulations”), on July 8, 1963, under the Trading With the Enemy Act (50 U.S.C. 4301-4341). OFAC has amended the Regulations on numerous occasions.

Most recently, on January 16, June 15, and September 21, 2015, and January 27, 2016, OFAC amended the Regulations, in coordinated actions with the Department of Commerce, to implement certain policy measures announced by the President on December 17, 2014 to further engage and empower the Cuban people. Today, OFAC and the Department of Commerce are taking additional coordinated actions in support of the President's Cuba policy.

OFAC is making additional amendments to the Regulations with respect to travel and related transactions, financial transactions, business and physical presence, and certain other activities, as set forth below.

Travel and Related Transactions

Individual people-to-people educational travel. OFAC is amending section 515.565(b) to remove the requirement that people-to-people educational travel be conducted under the auspices of an organization that sponsors such exchanges. This section now authorizes individuals to travel to Cuba provided that, among other things, the traveler engage while in Cuba in a full-time schedule of educational exchange activities that are intended to enhance contact with the Cuban people, support civil society in Cuba, or promote the Cuban people's independence from Cuban authorities, and that will result in meaningful interaction between the traveler and individuals in Cuba. The predominant portion of the activities engaged in by the traveler must not be with certain Government of Cuba or Cuban Communist Party officials. Persons relying upon this authorization must retain records related to the authorized travel transactions, including records demonstrating a full-time schedule of authorized activities.

Payment of salaries. OFAC is amending section 515.571 to remove the limitation on the receipt of compensation in excess of amounts covering living expenses and the acquisition of goods for personal consumption by a Cuban national present in the United States in a non-immigrant status or pursuant to other non-immigrant travel authorization issued by the U.S. government. New section (a)(5)(i) explicitly authorizes the receipt of any salary or other compensation consistent with the individual's non-immigrant status or other non-immigrant travel authorization, provided that the recipient is not subject to any special tax assessment by the Cuban government in connection with the receipt of the salary or other compensation. New section 515.571(e) authorizes all transactions related to the sponsorship or hiring of a Cuban national to work in the United States and provides that an employer may not make additional payments to the Cuban government in connection with the sponsorship or hiring of a Cuban national. Section 515.571(e) also authorizes transactions in connection with the filing of an application for non-immigrant travel authorization. OFAC is also making conforming edits in section 515.560(d)(3) and the Note to section 515.565(a)(5).

Dealings in merchandise subject to section 515.204, including Cuban-origin goods, for personal use. OFAC is adding section 515.585(c) to authorize individuals who are persons subject to U.S. jurisdiction and who are located in a third country to engage in the purchase or acquisition of merchandise subject to the prohibitions in section 515.204, including Cuban-origin goods, for personal consumption while in a third country, and to receive or obtain services from Cuba or a Cuban national that are ordinarily incident to travel and maintenance within a third country. This provision does not authorize the importation of such merchandise into the United States, including as accompanied baggage. OFAC is making a conforming change to section 515.410.

Financial Transactions

U-turn payments through the U.S. financial system. OFAC is amending section 515.584(d) to authorize U-turn transactions in which Cuba or a Cuban national has an interest to be conducted through the U.S. financial system. This provision authorizes funds transfers from a bank outside the United States that pass through one or more U.S. financial institutions before being transferred to a bank outside the United States where neither the originator nor the beneficiary is a person subject to U.S. jurisdiction. Transactions through the U.S. financial system that do not meet these criteria, including all transactions where the originator or beneficiary is a person subject to U.S. jurisdiction, remain prohibited unless otherwise authorized or exempt under the Regulations. OFAC is also making conforming edits to section 515.584(e), regarding unblocking of certain previously blocked funds transfers.

Processing of U.S. dollar monetary instruments. OFAC is adding new section 515.584(g) to authorize U.S. banking institutions to process U.S. dollar monetary instruments presented indirectly by Cuban financial institutions. Correspondent accounts used for transactions authorized pursuant to this section may be denominated in U.S. dollars. This section does not authorize banking institutions subject to U.S. jurisdiction to open correspondent accounts for banking institutions that are nationals of Cuba.

Certain bank accounts on behalf of a Cuban national. OFAC is adding new section 515.584(h) to authorize banking institutions to open and maintain accounts solely in the name of a Cuban national located in Cuba for the purposes only of receiving payments in the United States in connection with transactions authorized pursuant to or exempt from the prohibitions of this part and remitting such payments to Cuba. This provision would allow, for example, a Cuban national author located in Cuba to open an account with a bank or online payment platform in the United States to receive payments for sales of her book. This provision is in addition to the two existing authorizations for banking institutions to operate certain accounts on behalf of certain Cuban nationals. See Note to paragraph (a) of section 515.571(a)(5) and section 515.585(b). To avoid confusion, OFAC also is making conforming edits to the Note to section 515.571(a)(5) to clarify that all three account authorizations extend to banking institutions.

Business and Physical Presence

OFAC is amending section 515.573 to authorize additional persons subject to U.S. jurisdiction to establish a business and physical presence in Cuba.

Business presence. In September 2015, OFAC amended sections 515.542 and 515.578 to authorize persons subject to U.S. jurisdiction to establish and maintain a business presence in Cuba, including through subsidiaries, branches, offices, joint ventures, franchises, and agency or other business relationships with any Cuban individual or entity, to facilitate the provision of authorized telecommunications and internet-based services. OFAC is now expanding this authorization to establish a business presence to include the following additional categories of persons subject to U.S. jurisdiction (all of whom were previously authorized to establish a physical presence): exporters of goods authorized for export or reexport to Cuba by section 515.533 or section 515.559 or that are otherwise exempt; entities providing mail or parcel transmission services authorized by section 515.542(a) or providing cargo transportation services in connection with trade involving Cuba authorized by or exempt from the prohibitions of this part; and providers of travel and carrier services authorized by section 515.572. OFAC is clarifying that the business and physical presence authorization for providers of internet-based services extends to persons engaged in transactions authorized by section 515.578(e). OFAC is removing the prior provisions authorizing business presence that were located in sections 515.542 and 515.578 and consolidating these authorizations in section 515.573.

Physical presence. In September 2015, OFAC amended section 515.573 to authorize certain persons subject to U.S. jurisdiction to establish a physical presence, such as an office or other facility, in Cuba, to facilitate authorized transactions. OFAC is now expanding this authorization to include the following additional categories of persons subject to U.S. jurisdiction: entities engaging in non-commercial activities authorized by section 515.574 (Support for the Cuban People); entities engaging in humanitarian projects set forth in section 515.575(b) (Humanitarian projects); and private foundations or research or educational institutes engaging in transactions authorized by section 515.576. OFAC is also adding a note to clarify that the activities that may be carried out by exporters of items exported or reexported pursuant to authorization by the Department of Commerce or OFAC, or that are otherwise exempt, at a physical presence authorized by this section include the assembly of such items.

Other Transactions

Grants and awards. OFAC is adding a new provision in section 515.565 to authorize the provision of educational grants, scholarships, or awards to a Cuban national or in which Cuba or a Cuban national otherwise has an interest. This could include, for example, the provision of educational scholarships for Cuban students to pursue academic studies for a degree. OFAC is also adding a note to section 515.575(b) to clarify that the existing authorization includes provision of grants or awards for humanitarian projects in or related to Cuba that are designed to directly benefit the Cuban people as set forth in that section.

Telecommunications and internet-related services. OFAC is amending section 515.578 to allow the importation of Cuban-origin software.

OFAC is also making several technical and conforming edits. In particular, OFAC is correcting a typographical error in section 515.533(d)(2). OFAC is also conforming the language of the general authorization in section 515.559(d) to the corresponding authorization in section 515.533(d).

Public Participation

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

Paperwork Reduction Act

The collections of information related to the Regulations are contained in 31 CFR part 501 (the “Reporting, Procedures and Penalties Regulations”) and section 515.572 of this part. Pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3507), those collections of information are covered by the Office of Management and Budget under control numbers 1505-0164, 1505-0167, and 1505-0168. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid control number.

List of Subjects in 31 CFR Part 515

Administrative practice and procedure, Banking, Blocking of assets, Cuba, Financial transactions, Reporting and recordkeeping requirements, Travel restrictions.

For the reasons set forth in the preamble, the Department of the Treasury's Office of Foreign Assets Control amends 31 CFR part 515 as set forth below:

PART 515—CUBAN ASSETS CONTROL REGULATIONS 1. The authority citation for part 515 is revised to read as follows: Authority:

22 U.S.C. 2370(a), 6001-6010, 7201-7211; 31 U.S.C. 321(b); 50 U.S.C. 4301- 4341; Pub. L. 101-410, 104 Stat. 890 (28 U.S.C. 2461 note); Pub. L. 104-114, 110 Stat. 785 (22 U.S.C. 6021-6091); Pub. L. 105-277, 112 Stat. 2681; Pub. L. 111-8, 123 Stat. 524; Pub. L. 111-117, 123 Stat. 3034; E.O. 9193, 7 FR 5205, 3 CFR, 1938-1943 Comp., p. 1174; E.O. 9989, 13 FR 4891, 3 CFR, 1943-1948 Comp., p. 748; Proc. 3447, 27 FR 1085, 3 CFR, 1959-1963 Comp., p. 157; E.O. 12854, 58 FR 36587, 3 CFR, 1993 Comp., p. 614.

Subpart C—Definitions
§ 515.329 [Amended]
2. In § 515.329, remove “]” at the end of the sentence.
Subpart D—Interpretations 3. Revise § 515.410 to read as follows:
§ 515.410 Dealing abroad in Cuban-origin commodities.

Section 515.204 prohibits, unless licensed, the importation of commodities of Cuban origin. It also prohibits, unless licensed, persons subject to the jurisdiction of the United States from purchasing, transporting or otherwise dealing in commodities of Cuban origin which are outside the United States. Attention is directed to § 515.585, which authorizes certain dealings in commodities of Cuban origin outside the United States.

Subpart E—Licenses, Authorizations, and Statements of Licensing Policy 4. In § 515.505, revise paragraph (a)(4) to read as follows:
§ 515.505 Certain Cuban nationals unblocked.

(a) * * *

(4) Any entity, office, or other sub-unit authorized pursuant to § 515.573; and

5. In § 515.533, revise paragraph (d)(2) introductory text to read as follows:
§ 515.533 Exportations from the United States to Cuba; reexportations of 100% U.S.-origin items to Cuba; negotiation of executory contracts.

(d) * * *

(2) The travel-related transactions set forth in § 515.560(c) and such additional transactions as are directly incident to the facilitation of the temporary sojourn of aircraft and vessels as authorized by 15 CFR 740.15 (License Exception Aircraft, Vessels and Spacecraft) or pursuant to other authorization by the Department of Commerce for travel between the United States and Cuba authorized pursuant to this part, including travel-related transactions by personnel who are persons subject to U.S. jurisdiction and who are required for normal operation and service aboard a vessel or aircraft, as well as personnel who are persons subject to U.S. jurisdiction and who are required to provide services to a vessel in port or aircraft on the ground, are authorized, provided that:

6. In § 515.542, remove and reserve paragraph (f) and revise Notes 1 and 2 to § 515.542 to read as follows:
§ 515.542 Mail and telecommunications-related transactions. Note 1 to § 515.542:

For an authorization of travel-related transactions that are directly incident to the conduct of market research, commercial marketing, sales or contract negotiation, accompanied delivery, installation, leasing, or servicing in Cuba of items consistent with the export or reexport policy of the Department of Commerce, see § 515.533(d). For an authorization of travel-related transactions that are directly incident to participation in professional meetings, including where such meetings relate to telecommunications services or other activities authorized by paragraphs (b) through (e) of this section, see § 515.564(a).

Note 2 to § 515.542:

For general licenses authorizing physical and business presence in Cuba for certain persons, see § 515.573. An authorization related to business presence was previously included in this section. For an authorization of certain internet-related services, see § 515.578.

7. In § 515.559, revise paragraph (d) to read as follows:
§ 515.559 Certain export and import transactions by U.S.-owned or -controlled foreign firms.

(d) General license. Travel-related transactions set forth in § 515.560(c) and such other transactions as are directly incident to market research, commercial marketing, sales or contract negotiation, accompanied delivery, installation, leasing, or servicing in Cuba of exports that are consistent with the licensing policy under paragraph (a) of this section are authorized, provided that the traveler's schedule of activities does not include free time or recreation in excess of that consistent with a full-time schedule.

8. In § 515.560, revise paragraph (d)(3) to read as follows:
§ 515.560 Travel-related transactions to, from, and within Cuba by persons subject to U.S. jurisdiction.

(d) * * *

(3) Salaries or other compensation earned by the Cuban national up to any amount that can be substantiated through payment receipts as authorized in § 515.571(a)(5).

9. In § 515.565: a. Revise paragraph (a)(5); b. Redesignate paragraphs (a)(11) and (12) as (a)(12) and (13), respectively; c. Add new paragraph (a)(11); d. Revise newly redesignated paragraph (a)(12); e. Revise paragraph (b); f. Revise the Note to § 515.565(a) and (b); and g. Revise paragraph (c).

The revisions and addition read as follows:

§ 515.565 Educational activities.

(a) * * *

(5) Sponsorship of a Cuban scholar to teach or engage in other scholarly activity at the sponsoring U.S. academic institution (in addition to those transactions authorized by the general license contained in § 515.571).

Note to paragraph (a)(5):

See § 515.571(a) for authorizations related to certain banking transactions and receipt of salary or other compensation by Cuban nationals present in the United States in a non-immigrant status or pursuant to other non-immigrant travel authorization issued by the U.S. government.

(11) Provision of educational grants, scholarships, or awards to a Cuban national or in which Cuba or a Cuban national otherwise has an interest; and

(12) The organization of, and preparation for, activities described in paragraphs (a)(1) through (a)(11) of this section by employees or contractors of the sponsoring organization that is a person subject to U.S. jurisdiction;

(b) General license for people-to-people travel. The travel-related transactions set forth in § 515.560(c) and such additional transactions as are directly incident to educational exchanges not involving academic study pursuant to a degree program are authorized, provided that:

(1) Travel-related transactions pursuant to this authorization must be for the purpose of engaging, while in Cuba, in a full-time schedule of activities intended to enhance contact with the Cuban people, support civil society in Cuba, or promote the Cuban people's independence from Cuban authorities;

(2) Each traveler has a full-time schedule of educational exchange activities that will result in meaningful interaction between the traveler and individuals in Cuba;

(3) The predominant portion of the activities engaged in by individual travelers is not with a prohibited official of the Government of Cuba, as defined in § 515.337 of this part, or a prohibited member of the Cuban Communist Party, as defined in § 515.338 of this part;

(4) For travel conducted under the auspices of an organization that is a person subject to U.S. jurisdiction that sponsors such exchanges to promote people-to-people contact, an employee, paid consultant, or agent of the sponsoring organization must accompany each group traveling to Cuba to ensure that each traveler has a full-time schedule of educational exchange activities; and

Note to § 515.565(b)(4):

An organization that sponsors and organizes trips to Cuba in which travelers engage in individually selected and/or self-directed activities would not qualify for the general license. Authorized trips are expected to be led by the organization and to have a full-time schedule of activities in which the travelers will participate.

(5) In addition to all other information required by § 501.601 of this chapter, persons relying on the authorization in paragraph (b) of this section must retain records sufficient to demonstrate that each individual traveler has engaged in a full-time schedule of activities that satisfy the requirements of paragraphs (b)(1) through (3) of this section. In the case of an individual traveling under the auspices of an organization that is a person subject to U.S. jurisdiction and that sponsors such exchanges to promote people-to-people contact, the individual may rely on the entity sponsoring the travel to satisfy his or her recordkeeping requirements with respect to the requirements of paragraphs (b)(1) through (3) of this section. These records must be furnished to the Office of Foreign Assets Control on demand pursuant to § 501.602 of this chapter.

Example 1 to § 515.565(b):

An organization wishes to sponsor and organize educational exchanges not involving academic study pursuant to a degree program for individuals to learn side-by-side with Cuban individuals in areas such as environmental protection or the arts. The travelers will have a full-time schedule of educational exchange activities that will result in meaningful interaction between the travelers and individuals in Cuba. The organization's activities qualify for the general license, and the individual may rely on the entity sponsoring the travel to satisfy his or her recordkeeping requirement.

Example 2 to § 515.565(b):

An individual plans to travel to Cuba to participate in discussions with Cuban artists on community projects, exchanges with the founders of a youth arts program, and to have extended dialogue with local city planners and architects to learn about historical restoration projects in Old Havana. The traveler will have a full-time schedule of such educational exchange activities that will result in meaningful interaction between the traveler and individuals in Cuba. The individual's activities qualify for the general license, provided that the individual satisfies the recordkeeping requirement.

Example 3 to § 515.565(b):

An individual plans to travel to Cuba to participate in discussions with Cuban farmers and produce sellers about cooperative farming and agricultural practices and have extended dialogue with religious leaders about the influence of African traditions and religion on society and culture. The traveler fails to keep any records of the travel. Although the traveler will have a full-time schedule of educational exchange activities that will result in meaningful interaction between the traveler and individuals in Cuba, the traveler's failure to keep records means that the individual's activities do not qualify for the general license.

Example 4 to § 515.565(b):

An individual plans to travel to Cuba to rent a bicycle to explore the streets of Havana, engage in brief exchanges with shopkeepers while making purchases, and have casual conversations with waiters at restaurants and hotel staff. None of these activities are educational exchange activities that will result in meaningful interaction between the traveler and individuals in Cuba, and the traveler's trip does not qualify for the general license.

Example 5 to § 515.565(b):

An individual plans to travel to Cuba to participate in discussions with Cuban farmers and produce sellers about cooperative farming and agricultural practices and have extended dialogue with religious leaders about the influence of African traditions and religion on society and culture. The individual also plans to spend a few days engaging in brief exchanges with Cuban food vendors while spending time at the beach. Only some of these activities are educational exchange activities that will result in meaningful interaction between the traveler and individuals in Cuba, and the traveler therefore does not have a full-time schedule of such activities on each day of the trip. The trip does not qualify for the general license.

Note to § 515.565(a) and (b):

Except as provided in § 515.565(b)(5), each person relying on the general authorizations in these paragraphs, including entities sponsoring travel pursuant to the authorization in § 515.565(b), must retain specific records related to the authorized travel transactions. See §§ 501.601 and 501.602 of this chapter for applicable recordkeeping and reporting requirements.

(c) Transactions related to activities that are primarily tourist-oriented are not authorized pursuant to this section.

10. In § 515.571, revise paragraph (a)(5) and add paragraph (e) to read as follows:
§ 515.571 Certain transactions incident to travel to, from, and within the United States by Cuban nationals.

(a) * * *

(5) All transactions ordinarily incident to the Cuban national's presence in the United States in a non-immigrant status or pursuant to other non-immigrant travel authorization issued by the U.S. government.

(i) This paragraph (a)(5) authorizes the receipt of salary or other compensation by a national of Cuba consistent with the individual's non-immigrant status or non-immigrant travel authorization, provided that national of Cuba is not subject to any special tax assessments by the Cuban government in connection with the receipt of the salary or other compensation.

(ii) Examples of other transactions authorized by this paragraph (a)(5) include: the payment of tuition to a U.S. educational institution by a national of Cuba issued a student (F-1) visa, and the rental of a stage by a group of Cubans issued performance (P-2) visas.

Note to paragraph (a)(5):

This paragraph authorizes banking institutions, as defined in § 515.314, to open and maintain accounts solely in the name of a Cuban national who is present in the United States in a non-immigrant status or pursuant to other non-immigrant travel authorization for use while the Cuban national is located in the United States in such status, and to close such accounts prior to departure. See paragraph (b) of this section for an authorization for banking institutions to maintain accounts opened pursuant to this paragraph while the Cuban national is located outside the United States.

(e) The following transactions by or on behalf of a Cuban national are authorized:

(1) All transactions related to the sponsorship or hiring of a Cuban national to work in the United States in a non-immigrant status or pursuant to other non-immigrant travel authorization issued by the U.S. government, except that an employer may not make payments to the Cuban government in connection with the sponsorship or hiring of a Cuban national; and

(2) All transactions in connection with the filing of an application for non-immigrant travel authorization issued by the U.S. government.

11. In § 515.573: a. Revise the section heading; b. Revise paragraph (a) introductory text; c. Reedesignate paragraphs (b) and (c) as paragraphs (c) and (e); d. Add new paragraphs (b) and (d); and e. Revise newly redesignated paragraphs (c) and (e).

The revisions and additions read as follows:

§ 515.573 Physical presence and business presence in Cuba authorized; Cuban news bureaus.

(a) Physical presence: The persons listed in paragraphs (c) and (d) of this section are authorized to engage in all transactions necessary to establish and maintain a physical presence in Cuba to engage in transactions authorized pursuant to or exempt from the prohibitions of this part, including the following:

(b) Business presence. Except for transactions prohibited by § 515.208, the persons listed in paragraph (c) of this section are authorized to engage in all transactions necessary to establish and maintain a business presence in Cuba to engage in transactions authorized pursuant to or exempt from the prohibitions of this part, including the following: establishing and maintaining subsidiaries, branches, offices, joint ventures, franchises, and agency or other business relationships with any Cuban national, and entering into all necessary agreements or arrangements with such entity or individual.

(c) Persons authorized to establish physical and business presence. The following persons subject to U.S. jurisdiction may engage in the transactions authorized pursuant to paragraphs (a) and (b) of this section, provided that such transactions may only be engaged in to support transactions authorized by or exempt from the prohibitions of this part:

(1) Providers of telecommunications services authorized by § 515.542(b) through (d) or persons engaged in activities authorized by § 515.542(e);

(2) Providers of internet-based services authorized by § 515.578(a) or persons engaged in activities authorized by § 515.578(c) or (e);

(3) Exporters of goods authorized for export or reexport to Cuba by § 515.533 or § 515.559 or that are otherwise exempt;

Note to paragraph (c)(3):

This section authorizes the assembly in Cuba of items exported or reexported pursuant to authorization by the Department of Commerce or OFAC or that are otherwise exempt but does not authorize the incorporation of Cuban-origin goods into items assembled pursuant to this section or the processing of raw materials into finished goods in Cuba.

(4) Entities providing mail or parcel transmission services authorized by § 515.542(a) or providing cargo transportation services in connection with trade involving Cuba authorized by or exempt from the prohibitions of this part; and

(5) Providers of travel and carrier services authorized by § 515.572.

Note to paragraph (c)(5):

This authorization does not allow persons subject to U.S. jurisdiction to establish a physical or business presence in Cuba for the purpose of providing lodging services in Cuba.

(d) Persons authorized to establish physical presence. The following persons subject to U.S. jurisdiction may engage in the transactions authorized pursuant to paragraph (a) of this section, provided that such transactions may only be engaged in to support transactions authorized by or exempt from the prohibitions of this part:

(1) News bureaus whose primary purpose is the gathering and dissemination of news to the general public authorized by paragraph (e) of this section;

(2) Entities organizing or conducting educational activities authorized by § 515.565(a);

(3) Religious organizations engaging in religious activities in Cuba authorized by § 515.566;

(4) Entities engaging in non-commercial activities authorized by § 515.574 (Support for the Cuban People);

(5) Entities engaging in humanitarian projects set forth in § 515.575(b) (Humanitarian projects); and

(6) Private foundations or research or educational institutes engaging in transactions authorized by § 515.576.

12. In § 515.575, redesignate the Note to paragraph (a) as Note 1 to paragraph (a) and add Note 2 to paragraph (a) to read as follows:
§ 515.575 Humanitarian projects.

(a) * * *

Note 2 to paragraph (a):

Transactions authorized by this paragraph include the provision of grants or awards for humanitarian projects in or related to Cuba that are designed to directly benefit the Cuban people as set forth in paragraph (b) of this section.

13. In § 515.577, revise paragraph (e) to read as follows:
§ 515.577 Authorized transactions necessary and ordinarily incident to publishing.

(e) Section 515.564(a)(2) authorizes the travel-related transactions set forth in § 515.560(c) and such additional transactions that are directly incident to attendance at or organization of professional meetings that are necessary and ordinarily incident to the publishing and marketing of written publications.

14. In § 515.578, revise the section heading, paragraph (d), and add a Note to § 515.578 to read as follows:
§ 515.578 Exportation, reexportation, and importation of certain internet-based services; importation of software.

(d) Software. The importation into the United States of Cuban-origin software is authorized.

Note to § 515.578:

For general licenses authorizing physical and business presence in Cuba for certain persons, see § 515.573. An authorization related to business presence was previously included in this section. For an authorization of certain telecommunications-related services, see § 515.542.

15. In § 515.584, revise paragraph (d) and paragraph (e) introductory text, add paragraph (g), a Note to paragraph (g), and paragraph (h) to read as follows:
§ 515.584 Certain financial transactions involving Cuba.

(d) Funds transfers. Any banking institution, as defined in § 515.314, that is a person subject to U.S. jurisdiction is authorized to process funds transfers originating and terminating outside the United States, provided that neither the originator nor the beneficiary is a person subject to U.S. jurisdiction.

(e) Unblocking of certain previously blocked funds transfers authorized. Any banking institution, as defined in § 515.314, that is a person subject to U.S. jurisdiction is authorized to unblock and return to the originator or originating financial institution or their successor-in-interest previously blocked funds transfers that could have been processed pursuant to paragraph (d) of this section, § 515.562(b), or § 515.579(b) if the processing of those transfers would have been authorized had they been sent under the current text of those provisions. Persons subject to U.S. jurisdiction unblocking funds transfers that were originally blocked on or after August 25, 1997, pursuant to this section must submit a report to the Department of the Treasury, Office of Foreign Assets Control, Attn: Sanctions Compliance & Evaluation Division, 1500 Pennsylvania Avenue NW., Freedman's Bank Building, Washington, DC 20220 within 10 business days from the date such funds transfers are released. Such reports shall include the following:

(g) Any banking institution, as defined in § 515.314, that is a person subject to U.S. jurisdiction is authorized to accept, process, and give value to U.S. dollar monetary instruments presented for processing and payment by a banking institution located in a third country that is not a person subject to U.S. jurisdiction or a Cuban national and that has received the U.S. dollar monetary instruments from a financial institution that is a national of Cuba for which it maintains a correspondent account and which received the U.S. dollar monetary instruments in connection with an underlying transaction that is authorized, exempt, or otherwise not prohibited by this part, such as dollars spent in Cuba by authorized travelers or a third-country transaction that is not prohibited by this part.

Note to paragraph (g):

Correspondent accounts used for transactions authorized pursuant to § 515.584(g) may be denominated in U.S. dollars.

(h) Any banking institution, as defined in § 515.314, that is a person subject to U.S. jurisdiction is authorized to open and maintain accounts solely in the name of a Cuban national located in Cuba for the purposes only of receiving payments in the United States in connection with transactions authorized pursuant to, or exempt from the prohibitions of, this part and remitting such payments to Cuba.

16. In § 515.585, revise the section heading, add paragraph (c), and revise Note 3 to § 515.585 to read as follows:
§ 515.585 Certain transactions in third countries.

(c) Individuals who are persons subject to U.S. jurisdiction who are located in a third country are authorized to purchase or acquire merchandise subject to the prohibitions in § 515.204, including Cuban-origin goods, for personal consumption while in a third country, and to receive or obtain services from Cuba or a Cuban national that are ordinarily incident to travel and maintenance within that country.

Note to paragraph (c):

This section does not authorize the importation of merchandise, including as accompanied baggage. Please see § 515.544 for an authorization to import certain Cuban-origin merchandise from a third country.

Note 3 to § 515.585:

Except as provided in paragraph (c) of this section, this section does not authorize any transactions prohibited by § 515.204, including the purchase and sale of Cuban-origin goods.

Dated: March 11, 2016. John E. Smith, Acting Director, Office of Foreign Assets Control.
[FR Doc. 2016-06018 Filed 3-15-16; 8:45 am] BILLING CODE 4810-AL-P
DEPARTMENT OF VETERANS AFFAIRS 38 CFR Part 17 RIN 2900-AP68 Telephone Enrollment in the VA Healthcare System AGENCY:

Department of Veterans Affairs.

ACTION:

Interim final rule.

SUMMARY:

This rulemaking amends VA's medical regulations to allow veterans to complete applications for health care enrollment by telephone by providing application information to a VA employee, agreeing to VA's provisions regarding copayment liability and assignment of third-party insurance benefits, and attesting to the accuracy and authenticity of the information provided over the phone. This action will make it easier for veterans to apply to enroll and will speed VA processing of applications.

DATES:

Effective Date: This rule is effective on March 16, 2016. Applicability dates: This rule applies on March 15, 2016, to veterans who served in a theater of combat operations after November 11, 1998, and were discharged or released from active service on or after January 28, 2003. This rule applies to all other veterans on and after July 5, 2016.

Comment Date: Comments must be received on or before May 16, 2016.

ADDRESSES:

Written comments may be submitted through www.Regulations.gov; by mail or hand-delivery to Director, Regulation Policy and Management (02REG), Department of Veterans Affairs, 810 Vermont Avenue NW., Room 1066, Washington, DC 20420; or by fax to (202) 273-9026. Comments should indicate that they are submitted in response to [“RIN 2900-AP68—Telephone enrollment in the VA healthcare system.”] Copies of comments received will be available for public inspection in the Office of Regulation Policy and Management, Room 1066, between the hours of 8:00 a.m. and 4:30 p.m., Monday through Friday (except holidays). Please call (202) 461-4902 for an appointment. (This is not a toll-free number.) In addition, during the comment period, comments may be viewed online through the Federal Docket Management System (FDMS) at www.Regulations.gov.

FOR FURTHER INFORMATION CONTACT:

Mathew J. Eitutis, Acting Director, Member Services 3401 SW 21st St. Building 9 Topeka, KS 66604; 785-925-0605. (This is not a toll-free number.)

SUPPLEMENTARY INFORMATION:

Section 1710 of title 38, United States Code (U.S.C.), authorizes VA to provide health care to veterans, and section 1705 requires VA to enroll most veterans in the VA healthcare system before providing health care. This rulemaking amends VA's enrollment regulations, § 17.36(d)(1) of title 38, Code of Federal Regulations (CFR), to allow veterans to apply for enrollment in the VA healthcare system by telephone, in addition to submitting an application on paper or online. Submitting an application does not guarantee enrollment in the VA health care system.

VA's regulation at 38 CFR 17.36(d)(1) has allowed veterans to apply for enrollment in VA health care in two ways, by submitting a signed paper application on the VA Form 10-10EZ or by completing that application online. The current regulation provides for submission of the form to a VA medical facility, which any veteran may. The mailing address on the form, however, is to a VA office not in a VA medical facility. We propose to revise the regulation to explicitly include that the veteran may also submit the form to the address on the form, consistent with actual practice. This change also makes the rule more transparent, showing how veterans actually access VA health care.

The current paper application and its online counterpart include the veteran's consent to pay any copayments the law requires the veteran pay for treatment or services, 38 U.S.C. 1710 and 1722A, and to assign insurance benefits to VA. 38 U.S.C. 1729; 42 U.S.C. 2651. The application also includes a notification of the consequences of making a materially false statement in an application for enrollment.

Under the existing regulations, it is VA's practice to assist veterans in filling out the VA Form 10-10EZ, which often occurs when veterans call a designated telephone number; however, in order to complete the application process, VA currently requires the veteran's signature. In these cases, a VA employee enters into the VA application form the information the veteran provides over the telephone, then VA mails the form to the veteran to sign and return to VA. With this rulemaking, VA is now able to complete the entire enrollment application for the veteran based on information given and attestations made by the veteran over the telephone that are legally equivalent to those in VA Form 10-10EZ. Analysis of our current application process persuades us we can potentially enroll veterans more quickly using this method, particularly those who are transitioning from active duty to veteran status. We also believe the new process will be less burdensome on veterans.

To accomplish a telephone application for enrollment under revised § 17.36(d)(1), a VA employee will verify the veteran's identify based on information already in VA's records or records VA can access, and obtain the information necessary to complete the veteran's application. The VA employee will also inform the veteran of the consequences of making a materially false statement and explain the VA copayment obligation and the assignment of benefits provision.

With respect to the copayment obligation, VA is required by law to charge some veterans a copayment for treatment or services. 38 U.S.C. 1710 and 1722A. As part of the telephone application, the VA employee will provide notice to the veteran that he or she is agreeing to make applicable copayments and that by accepting care or services from VA, he or she may be subject to copayment obligations. In addition, pursuant to 38 U.S.C. 1729 and 42 U.S.C. 2651, VA is authorized to recover or collect from a veteran's health plan or other legally responsible third party for the reasonable charges of nonservice-connected VA care or services. As part of the telephone application, the VA employee will obtain the veteran's verbal consent to assign his or her third-party insurance benefits to VA and inform the veteran that in order to pursue third-party collections, VA may disclose certain information about the veteran and his or her treatment.

The VA employee will obtain the veteran's verbal assurance of his or her understanding of these potential consequences and obligations and continued intent to apply for enrollment in the VA healthcare system. After those steps are complete, the veteran will attest to the accuracy and authenticity of the information provided in the application and must provide verbal confirmation that he or she consents to VA copayment obligations and third-party billing procedures. These steps will be considered to complete the application process in the same manner as submitting the online application or signed paper form under current regulations.

By adding the telephone application to VA's regulations with this amendment, VA will now offer three ways to enroll under 38 CFR 17.36(d)(1). For clarity, we are reorganizing paragraph (d)(1) to show the three alternatives as (d)(1)(i), (ii), or (iii). Paragraphs (d)(1)(i) and (ii) restate the existing means to apply, by paper submission in person or by mail, (d)(1)(i); or online, (d)(1)(ii). We are removing the Web address from the regulation at new paragraph (d)(1)(iii) because VA may change the location of its Web application in the future. Veterans are informed of the Web address in a number of other media. New paragraph (d)(1)(iii) authorizes applications to be completed over the telephone by calling a designated phone number, submitting application information verbally, attesting to the accuracy and authenticity of the verbal application for enrollment and consenting to VA's copayment obligations and third-party billing procedures.

We will begin telephone applications in two phases. Veterans in the first applicability date group (first group) are eligible to receive cost-free VA health care for combat-related conditions and enrollment in Priority Group 6 for 5 years after their separation from active duty. 38 U.S.C. 1710(e). Because these veterans are eligible for a benefit Congress created with a limited duration, their opportunity to enroll in VA health care with enhanced Priority Group assignment is passing quickly. For this reason, VA will take telephone applications from them first. Beginning March 15, 2016, VA will telephone veterans in the first group with pending applications for enrollment in VA health care to offer them an opportunity to complete their applications by telephone. Veterans in the first group without pending applications may begin calling VA on March 15, 2016, to apply by telephone to enroll in VA health care. All veterans who are not in the first group may begin calling VA on July 5, 2016, to apply by telephone to enroll in VA health care.

The phased initiation of telephone applications permits VA to best marshal limited resources as we perfect the program, which we can only do by processing real applications this new way, while preparing to marshal the additional resources necessary to serve all applicants for enrollment in VA health care who wish to apply by telephone. Although we could wait until we develop the capacity to serve all potential applicants from the first day of this program, that would delay initiating telephone application, and there is no good reason for that delay.

Administrative Procedure Act

The Secretary of Veterans Affairs finds that there is good cause under the provisions of 5 U.S.C. 553(b)(B) to publish this rule without prior opportunity for public comment. Failure to authorize verbal applications as soon as possible is contrary to the public interest because it prolongs current delays in processing applications for enrollment in the VA healthcare system. Recently separated combat veterans comprise a large portion of new applicants for VA health care, with an especially great need for immediate access to care. Prompt processing of applications for enrollment in the VA health care system will ease their transition to civilian life. Any delay in initiating an available, viable means of enrolling this group would be detrimental to their well-being and consequently contrary to the public interest.

We are dispensing with the 30-day delay requirement for the effective date of a rule for good cause under 5 U.S.C. 553(d)(3). The object of this rulemaking is to expedite the healthcare application and enrollment process. We anticipate that this regulation will be uncontroversial and believe that any further delay in allowing VA to complete applications by telephone would be contrary to the public interest, for the same reasons described above.

Effect of Rulemaking

The Code of Federal Regulations, as revised by this interim final rulemaking, will represent the exclusive legal authority on this subject. No contrary rules or procedures are authorized. All VA guidance must be read to conform with this interim final rulemaking if possible or, if not possible, such guidance is superseded by this rulemaking.

Paperwork Reduction Act

Although this action contains provisions constituting collections of information, at 38 CFR 17.36(d)(1), under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521), no new or proposed revised collections of information are associated with this interim final rule. It will amend an approved collection by allowing a new method for veterans to submit the requested information, but this change will not affect the burden on the public under the approved collection. The information collection requirements for 38 CFR 17.36(d)(1) are currently approved by the Office of Management and Budget (OMB) and have been assigned OMB control numbers 2900-0091.

Regulatory Flexibility Act

The Secretary hereby certifies that this interim final rule will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. This interim final rule will directly affect only individuals and will not directly affect small entities. Therefore, pursuant to 5 U.S.C. 605(b), this rulemaking is exempt from the initial and final regulatory flexibility analysis requirements of 5 U.S.C. 603 and 604.

Executive Order 12866 and 13563

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

The economic, interagency, budgetary, legal, and policy implications of this interim final rule have been examined, and it has been determined not to be a significant regulatory action under Executive Order 12866. VA's impact analysis can be found as a supporting document at http://www.regulations.gov, usually within 48 hours after the rulemaking document is published. Additionally, a copy of the rulemaking and its impact analysis are available on VA's Web site at http://www.va.gov/orpm/, by following the link for “VA Regulations Published From FY 2004 Through Fiscal Year to Date.”

Unfunded Mandates

The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any one year. This interim final rule will have no such effect on State, local, and tribal governments, or on the private sector.

Catalog of Federal Domestic Assistance

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

Signing Authority

The Secretary of Veterans Affairs, or designee, approved this document and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs. Robert D. Snyder, Interim Chief of Staff, Department of Veterans Affairs, approved this document on February 9, 2016, for publication.

List of Subjects in 38 CFR Part 17

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

Dated: March 9, 2016. Michael P. Shores, Chief Impact Analyst, Office of Regulation Policy & Management, Office of the General Counsel, Department of Veterans Affairs.

For the reasons stated in the preamble, Department of Veterans Affairs proposes to amend 38 CFR part 17 as follows:

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

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

2. Amend § 17.36 to revise paragraph (d)(1) to read as follows:
§ 17.36 Enrollment—provision of hospital and outpatient care to veterans.

(d) * * *

(1) Application for enrollment. A veteran who wishes to be enrolled must apply by submitting a VA Form 10-10EZ:

(i) To a VA medical facility or by mail it to the U.S. Postal address on the form; or

(ii) Online at the designated World Wide Web internet address; or

(iii) By calling a designated telephone number and submitting application information verbally. To complete a telephone application, the veteran seeking enrollment must attest to the accuracy and authenticity of their verbal application for enrollment and consent to VA's copayment requirements and third-party billing procedures.

[FR Doc. 2016-05680 Filed 3-15-16; 8:45 am] BILLING CODE 8320-01-P
FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 76 [CS Docket No. 97-80; FCC 16-18] Commercial Availability of Navigation Devices AGENCY:

Federal Communications Commission.

ACTION:

Final rule.

SUMMARY:

The Commission amends a set-top box rule to eliminate a requirement that multichannel video programming distributors rely on separated security in devices that they sell, lease, or otherwise provide to subscribers.

DATES:

Effective April 15, 2016.

FOR FURTHER INFORMATION CONTACT:

Brendan Murray, [email protected], of the Media Bureau, Policy Division, (202) 418-1573.

SUPPLEMENTARY INFORMATION:

Section 106 of the STELA Reauthorization Act of 2014, Public Law 113-200, Section 106(a), 128 Stat. 2059, 2063-4 (2014), states that the “second sentence of section 76.1204(a)(1) of title 47, Code of Federal Regulations, terminates effective on” December 4, 2015. That second sentence is the portion of our rules that we commonly refer to as the “integration ban,” and it required cable operators to rely on identical security elements for leased devices and consumer-owned devices. Section 106 goes on to state that by June 1, 2016, “the Commission shall complete all actions necessary to remove the sentence” from our rules. With this Order, we remove that sentence from our rules.

This document does not contain information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, therefore, it does not contain any information collection burden for small business concerns with fewer than 25 employees, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4).

The Commission will send a copy of this Memorandum Opinion and Order 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 in 47 CFR Part 76

Administrative practice and procedure; Cable television; Equal employment opportunity; Political candidates; 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 part 76 as follows:

PART 76—MULTICHANNEL VIDEO AND CABLE TELEVISION SERVICE 1. 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, 338, 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.

2. Revise § 76.1204 to read as follows:
§ 76.1204 Availability of equipment performing conditional access or security functions.

(a)(1) A multichannel video programming distributor that utilizes Navigation Devices to perform conditional access functions shall make available equipment that incorporates only the conditional access functions of such devices.

(2) The foregoing requirement shall not apply to a multichannel video programming distributor that supports the active use by subscribers of Navigation Devices that:

(i) Operate throughout the continental United States, and

(ii) Are available from retail outlets and other vendors throughout the United States that are not affiliated with the owner or operator of the multichannel video programming system.

(b) Conditional access function equipment made available pursuant to paragraph (a)(1) of this section shall be designed to connect to and function with other Navigation Devices available through the use of a commonly used interface or an interface that conforms to appropriate technical standards promulgated by a national standards organization.

(c) No multichannel video programming distributor shall by contract, agreement, patent, intellectual property right or otherwise preclude the addition of features or functions to the equipment made available pursuant to this section that are not designed, intended or function to defeat the conditional access controls of such devices or to provide unauthorized access to service.

(d) Notwithstanding the foregoing, Navigation Devices need not be made available pursuant to this section where:

(1) It is not reasonably feasible to prevent such devices from being used for the unauthorized reception of service; or

(2) It is not reasonably feasible to separate conditional access from other functions without jeopardizing security.

(e) Paragraphs (a)(1), (b), and (c) of this section shall not apply to the provision of any Navigation Device that:

(1) Employs conditional access mechanisms only to access analog video programming;

(2) Is capable only of providing access to analog video programming offered over a multichannel video programming distribution system; and

(3) Does not provide access to any digital transmission of multichannel video programming or any other digital service through any receiving, decoding, conditional access, or other function, including any conversion of digital programming or service to an analog format.

[FR Doc. 2016-05762 Filed 3-15-16; 8:45 am] BILLING CODE 6712-01-P
DEPARTMENT OF DEFENSE GENERAL SERVICES ADMINISTRATION NATIONAL AERONAUTICS AND SPACE ADMINISTRATION 48 CFR Part 52 [FAC 2005-87; Technical Amendment; Corrections; Docket 2016-0052; Sequence No. 1] Federal Acquisition Regulation; Technical Amendment; Corrections AGENCIES:

Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).

ACTION:

Correcting amendments.

SUMMARY:

DoD, GSA, and NASA are issuing a correction to FAC 2005-87; Technical Amendment; (Item II), which was published in the Federal Register at 81 FR 11988, March 7, 2016.

DATES:

Effective: March 16, 2016.

FOR FURTHER INFORMATION CONTACT:

Ms. Hada Flowers, Regulatory Secretariat Division (MVCB), 1800 F Street NW., 2nd Floor, Washington, DC 20405, 202-501-4755. Please cite FAC 2005-87, Technical Amendments; Corrections.

SUPPLEMENTARY INFORMATION: Background

The dates to the amended FAR sections were inadvertently stated on the Federal Register publication.

Need for Corrections

As published, the final Technical Amendment document contains errors which may prove to be misleading and need to be clarified.

List of Subjects in 48 CFR Part 52

Government procurement.

Accordingly, 48 CFR part 52 is corrected by making the following correcting amendments:

PART 52-SOLICITATION PROVISIONS AND CONTRACT CLAUSES 1. The authority citation for part 52 continues to read as follows: Authority:

40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51 U.S.C. 20113.

2. In section 52.212-5: a. In paragraphs (c)(8), and (e)(1)(xv), remove “(MAR 2016)” and add “(DEC 2015)” in their places, respectively. b. Revise the date of Alternate II, and remove from paragraph (e)(1)(ii)(N) “(MAR 2016)” and add “(DEC 2015)” in its place.

The revision reads as follows:

52.212-5 Contract Terms and Conditions Required to Implement Statutes or Executive Orders—Commercial Items.

Alternate II (MAR 2016).

52.213-4 [Corrected]
3. Remove from section 52.213-4, paragraph (b)(1)(ix) “(MAR 2016)” and add “(DEC 2015)” in its place.
Dated: March 11, 2016. William Clark, Director, Office of Government-wide Acquisition Policy, Office of Acquisition Policy, Office of Government-wide Policy.
[FR Doc. 2016-05920 Filed 3-15-16; 8:45 am] BILLING CODE 6820-EP-P
DEPARTMENT OF TRANSPORTATION Federal Motor Carrier Safety Administration 49 CFR Part 390 [Docket No. FMCSA-2012-0103] RIN 2126-AB90 Lease and Interchange of Vehicles; Motor Carriers of Passengers AGENCY:

Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION:

Final rule; extension of compliance date.

SUMMARY:

FMCSA extends the compliance date by which motor carriers of passengers operating CMVs under a lease or interchange agreement are subject to the FMCSA final rule published May 27, 2015, for one year, to January 1, 2018. The Agency received numerous petitions for reconsideration of the final rule and based upon a review of the petitions, determined that the compliance date should be extended to provide sufficient time to address the issues raised by the petitioners. The Agency is adding a temporary section to its regulations to inform the public of this extension. There will no longer be a need for the section on the compliance date after January 1, 2018, thus the temporary section will be in effect only from March 16, 2016 through January 1, 2018.

DATES:

Effective date: March 16, 2016 until January 1, 2018. Compliance date: As of March 16, 2016, the compliance date for the requirements in subpart F to 49 CFR part 390 (§§ 390.301, 390.303, and 390.305) is extended until January 1, 2018.

FOR FURTHER INFORMATION CONTACT:

Ms. Loretta Bitner, (202) 366-2400, [email protected], Office of Enforcement and Compliance. FMCSA office hours are from 9 a.m. to 5 p.m., Monday through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION: I. Background

On May 27, 2015, FMCSA published a final rule entitled “Lease and Interchange of Vehicles; Motor Carriers of Passengers,” 80 FR 30164 (May 27, 2015). The American Bus Association (ABA) and United Motorcoach Association (UMA) filed a joint request for an extension of the June 26, 2015, deadline for the submission of petitions for reconsideration of the final rule. (80 FR 37553). On July 1, 2015, the Agency announced an extension of the deadline for petitions for reconsideration, until August 25, 2015. (80 FR 37553).

The Agency ultimately received 24 unique letters and 24 form letters with additional text as petitions for reconsideration, all of which were filed in the public docket referenced above. After the initial review of the petitions, FMCSA held a meeting on October 28, 2015, with a cross section of the petitioners. Attending were representatives from small and large bus companies, charter and regular-route operations and diverse areas of the nation. Additionally, two insurance company representatives were invited due to the concerns raised in the petitions about liability. The purpose of the meeting was to have an open discussion about petitioners' concerns and to gather additional details about their specific operations.

Based on these communications, and after further analysis, FMCSA has concluded that some of the petitions for reconsideration may have merit. FMCSA mailed a letter to each petitioner on September 9, 2015, acknowledging the Agency had received the petition and will process the petition in accordance with 49 CFR 389.35, “Petitions for Reconsideration.” After the Agency has reviewed all relevant information and a determination has been made, the petitioner will again be notified by letter. While the Agency is not yet in a position to grant or deny the petitions, it is mindful of the approaching compliance date of January 1, 2017, and it wishes to allay stakeholder concerns that there will not be sufficient time to adjust passenger carrier operations before compliance with the final rule is required. The Agency is therefore extending the compliance date to January 1, 2018. The Agency is adding a temporary section § 390.300T to subpart F of 49 CFR part 390 to inform the public of this extension. There will no longer be a need for the temporary section dealing with the compliance date after January 1, 2018, thus the temporary section will be in effect only from March 16, 2016 through January 1, 2018.

II. Regulatory Analyses A. Regulatory Planning and Review

FMCSA has determined that this action is a non-significant regulatory action under Executive Order 12866, as supplemented by Executive Order 13563 (76 FR 3821, January 18, 2011), and DOT regulatory policies and procedures (44 FR 1103, February 26, 1979). The Agency does not expect the rule to generate substantial congressional or public interest. This rule has not been reviewed formally by the Office of Management and Budget (OMB).

Please review the final rule's Regulatory Evaluation in docket FMCSA-2012-0103 for a thorough discussion of the assumptions the Agency made, the public comments the Agency considered, the options/alternatives considered in developing the final rule, the analysis conducted, and the petitions for reconsideration received to the May 27, 2015, final rule 80 FR 30164.

B. Regulatory Flexibility Act

Section 603 of the Regulatory Flexibility Act (RFA), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121, 110 Stat. 857, March 29, 1996) and the Small Business Jobs Act of 2010 (Pub. L. 111-240, September 27, 2010), requires FMCSA to perform a detailed analysis of the potential impact of the final rule on small entities. Accordingly, DOT policy requires that agencies shall strive to lessen any adverse effects on these businesses and other entities. The Final Regulatory Flexibility Analysis conducted as part of the May 27, 2015, continues to be applicable to this final rule.

Assistance for Small Entities

In accordance with section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996, FMCSA wants to assist small entities in understanding this rule so that they can better evaluate its effects on themselves. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please consult the FMCSA point of contact, Loretta Bitner, listed in the FOR FURTHER INFORMATION CONTACT section of this rule.

Small businesses may send comments on the actions of Federal employees who enforce or otherwise determine compliance with Federal regulations to the SBA's Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of FMCSA, call 1-888-REG-FAIR (1-888-734-3247). DOT has a policy ensuring the rights of small entities to regulatory enforcement fairness and an explicit policy against retaliation for exercising these rights.

C. Federalism (Executive Order 13132)

A rule has federalism implications if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on the States. FMCSA analyzed this rule under E.O. 13132 and has determined that it has no federalism implications.

D. Unfunded Mandates Reform Act of 1995

This final rule does not impose an unfunded Federal mandate, as defined by the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1532 et seq.), that would result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $155 million (which is the value of $100 million in 2014 after adjusting for inflation) or more in any 1 year.

E. Executive Order 12988 (Civil Justice Reform)

This final rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

F. Executive Order 13045 (Protection of Children)

FMCSA analyzed this action under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. The Agency has determined that this rule does not create an environmental risk to health or safety that would disproportionately affect children.

G. Executive Order 12630 (Taking of Private Property)

FMCSA reviewed this final rule in accordance with Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights, and has determined it would not effect a taking of private property or otherwise have taking implications.

H. Privacy Impact Assessment

Section 522 of title I of division H of the Consolidated Appropriations Act, 2005, enacted December 8, 2004 (Pub. L. 108-447, 118 Stat. 2809, 3268, 5 U.S.C. 552a note), requires the Agency to conduct a privacy impact assessment (PIA) of a regulation that will affect the privacy of individuals. This final rule does not require the collection of any personally identifiable information.

The Privacy Act (5 U.S.C. 552a) applies only to Federal agencies and any non-Federal agency which receives records contained in a system of records from a Federal agency for use in a matching program. FMCSA has determined this final rule does not result in a new or revised Privacy Act System of Records for FMCSA.

I. Executive Order 12372 (Intergovernmental Review)

The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities do not apply to this program.

J. Paperwork Reduction Act

Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et seq.), Federal agencies must obtain approval from the OMB for each collection of information they conduct, sponsor, or require through regulations. On August 5, 2015, OMB approved the May 27, 2015, final rule's two information collections titled “Commercial Motor Vehicle Marking Requirements,” OMB No. 2126-0054, and “Lease and Interchange of Motor Vehicles,” OMB No. 2126-0056. OMB has set the dates for both of these information collections to expire on August 31, 2018.

K. National Environmental Policy Act and Clean Air Act

FMCSA analyzed this final rule in accordance with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321 et seq.). The Agency has determined under its environmental procedures Order 5610.1, published March 1, 2004, in the Federal Register (69 FR 9680), that this action is categorically excluded from further environmental documentation under Appendix 2, Paragraphs y (2) and y (7) of the Order (69 FR 9702). These categorical exclusions relate to:

• y (2) Regulations implementing motor carrier identification and registration reports; and

• y (7) Regulations implementing prohibitions on motor carriers, agents, officers, representatives, and employees from making fraudulent or intentionally false statements on any application, certificate, report, or record required by FMCSA.

Thus, the final action will not require an environmental assessment or an environmental impact statement.

FMCSA also analyzed this proposed rule under the Clean Air Act, as amended (CAA), section 176(c) (42 U.S.C. 7401 et seq.), and implementing regulations promulgated by the Environmental Protection Agency. Approval of this action is exempt from the CAA's general conformity requirement since it does not affect direct or indirect emissions of criteria pollutants.

L. Executive Order 13211 (Energy Effects)

FMCSA has analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. The Agency has determined that it is not a “significant energy action” under that Executive Order because it is not economically significant and is not likely to have a significant adverse effect on the supply, distribution, or use of energy.

List of Subjects in 49 CFR Part 390

Highway safety, Intermodal transportation, Motor carriers, Motor vehicle safety, Reporting and recordkeeping requirements.

The Final Rule

For the reasons stated in the preamble, FMCSA amends 49 CFR part 390 in title 49, Code of Federal Regulations, chapter III, subchapter B, as follows:

PART 390—FEDERAL MOTOR CARRIER SAFETY REGULATIONS; GENERAL 1. The authority citation for part 390 is revised to read as follows: Authority:

49 U.S.C. 504, 508, 31132, 31133, 31134, 31136, 31137, 31144, 31151, 31502; sec. 114, Pub. L. 103-311, 108 Stat. 1673, 1677-1678; sec. 212, 217, Pub. L. 106-159, 113 Stat. 1748, 1766, 1767; sec. 229, Pub. L. 106-159 (as transferred by sec. 4115 and amended by secs. 4130-4132, Pub. L. 109-59, 119 Stat. 1144, 1726, 1743-1744); sec. 4136, Pub. L. 109-59, 119 Stat. 1144, 1745; sections 32101(d) and 32934, Pub. L. 112-141, 126 Stat. 405, 778, 830; sec. 2, Pub. L. 113-125, 128 Stat. 1388; and 49 CFR 1.87.

2. Effective March 16, 2016 until January 1, 2018, add § 390.300T to subpart F to read as follows:
§ 390.300T Compliance date.

Motor carriers of passengers operating CMVs under a lease or interchange agreement are subject to §§ 390.301, 390.303, and 390.305 of this subpart on January 1, 2018.

Issued under the authority delegated in 49 CFR 1.87 on: March 10, 2016. Daphne Y. Jefferson, Deputy Administrator.
[FR Doc. 2016-05932 Filed 3-15-16; 8:45 am] BILLING CODE 4910-EX-P
DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 300 [Docket No. 160203073-6073-01] RIN 0648-BF75 Pacific Halibut Fisheries; Catch Sharing Plan AGENCY:

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

ACTION:

Final rule.

SUMMARY:

The Assistant Administrator for Fisheries, National Oceanic and Atmospheric Administration (NOAA), on behalf of the International Pacific Halibut Commission (IPHC), publishes annual management measures governing the Pacific halibut fishery recommended as regulations by the IPHC and accepted by the Secretary of State. This action is intended to enhance the conservation of Pacific halibut and further the goals and objectives of the Pacific Fishery Management Council and the North Pacific Fishery Management Council (NPFMC).

DATES:

The IPHC's 2016 annual management measures are effective March 14, 2016. The 2016 management measures are effective until superseded.

ADDRESSES:

Additional requests for information regarding this action may be obtained by contacting the International Pacific Halibut Commission, 2320 W. Commodore Way, Suite 300, Seattle, WA 98199-1287; or Sustainable Fisheries Division, NMFS Alaska Region, P.O. Box 21668, Juneau, AK 99802, Attn: Ellen Sebastian, Records Officer; or Sustainable Fisheries Division, NMFS West Coast Region, 7600 Sand Point Way, NE., Seattle, WA 98115. This final rule also is accessible via the Internet at the Federal eRulemaking portal at http://www.regulations.gov, identified by docket number NOAA-NMFS-2016-0015.

FOR FURTHER INFORMATION CONTACT:

For waters off Alaska, Glenn Merrill or Julie Scheurer, 907-586-7228; or, for waters off the U.S. West Coast, Sarah Williams, 206-526-4646.

SUPPLEMENTARY INFORMATION: Background

The IPHC has recommended regulations which would govern the Pacific halibut fishery in 2016, pursuant to the Convention between Canada and the United States for the Preservation of the Halibut Fishery of the North Pacific Ocean and Bering Sea (Convention), signed at Ottawa, Ontario, on March 2, 1953, as amended by a Protocol Amending the Convention (signed at Washington, DC, on March 29, 1979).

As provided by the Northern Pacific Halibut Act of 1982 (Halibut Act) at 16 U.S.C. 773b, the Secretary of State, with the concurrence of the Secretary of Commerce, may accept or reject, on behalf of the United States, regulations recommended by the IPHC in accordance with the Convention (Halibut Act, Sections 773-773k). The Secretary of State, with the concurrence of the Secretary of Commerce, accepted the 2016 IPHC regulations as provided by the Halibut Act at 16 U.S.C. 773-773k.

The Halibut Act provides the Secretary of Commerce with the authority and general responsibility to carry out the requirements of the Convention and the Halibut Act. The Regional Fishery Management Councils may develop, and the Secretary of Commerce may implement, regulations governing harvesting privileges among U.S. fishermen in U.S. waters that are in addition to, and not in conflict with, approved IPHC regulations. The NPFMC has exercised this authority most notably in developing halibut management programs for three fisheries that harvest halibut in Alaska: the subsistence, sport, and commercial fisheries.

Subsistence and sport halibut fishery regulations are codified at 50 CFR part 300. Commercial halibut fisheries in Alaska are subject to the Individual Fishing Quota (IFQ) Program and Community Development Quota (CDQ) Program (50 CFR part 679) regulations, and the area-specific catch sharing plans.

The IPHC apportions catch limits for the Pacific halibut fishery among regulatory areas (Figure 1): Area 2A (Oregon, Washington, and California), Area 2B (British Columbia), Area 2C (Southeast Alaska), Area 3A (Central Gulf of Alaska), Area 3B (Western Gulf of Alaska), and Area 4 (subdivided into 5 areas, 4A through 4E, in the Bering Sea and Aleutian Islands of Western Alaska).

The NPFMC implemented a catch sharing plan (CSP) among commercial IFQ and CDQ halibut fisheries in IPHC Areas 4C, 4D, and 4E (Area 4, Western Alaska) through rulemaking, and the Secretary of Commerce approved the plan on March 20, 1996 (61 FR 11337). The Area 4 CSP regulations were codified at 50 CFR 300.65, and were amended on March 17, 1998 (63 FR 13000). New annual regulations pertaining to the Area 4 CSP also may be implemented through IPHC action, subject to acceptance by the Secretary of State.

The NPFMC recommended and NMFS implemented through rulemaking a CSP for guided sport (charter) and commercial IFQ halibut fisheries in IPHC Area 2C and Area 3A on January 13, 2014 (78 FR 75844, December 12, 2013). The Area 2C and 3A CSP regulations are codified at 50 CFR 300.65. The CSP defines an annual process for allocating halibut between the commercial and charter fisheries so that each sector's allocation varies in proportion to halibut abundance; specifies a public process for setting annual management measures; and authorizes limited annual leases of commercial IFQ for use in the charter fishery as guided angler fish (GAF).

The IPHC held its annual meeting in Juneau, Alaska, January 25-29, 2016, and recommended a number of changes to the previous IPHC regulations (80 FR 13771, March 17, 2015). The Secretary of State accepted the annual management measures, including the following changes to the previous IPHC regulations for 2016:

1. New commercial halibut fishery opening and closing dates in Section 8;

2. New halibut catch limits in all regulatory areas in Section 11;

3. New management measures for Area 2C and Area 3A guided sport fisheries in Section 28, and in Figures 3 and 4;

4. Removal of carcass retention requirements for Area 2C and Area 3A guided sport fisheries (though the requirement remains in 50 CFR 300.65) in Section 28;

5. Additional exemptions from daily bag limits, possession limits, and catch limits for halibut caught bearing IPHC external tags in Section 21;

6. Approval of longline pot gear, as defined by the NPFMC, as legal gear for the commercial halibut fishery in Alaska when NMFS' regulations permit the use of this gear in the IFQ sablefish fishery in Section 19;

7. Approval of use of NMFS electronic logbooks in Alaska in Section 16;

8. Clarifying the wording of regulations for recording on fish tickets in Area 2A treaty Indian fisheries in Section 17;

9. Clarifying the wording of regulations for required information in logbooks for Area 2A treaty Indian fisheries in Section 16; and

10. Modifying definition of Subarea 2A-1 in Section 22.

Pursuant to regulations at 50 CFR 300.62, the 2016 IPHC annual management measures are published in the Federal Register to provide notice of their immediate regulatory effectiveness and to inform persons subject to the regulations of their restrictions and requirements. Because NMFS publishes the regulations applicable to the entire Convention area, these regulations include some provisions relating to and affecting Canadian fishing and fisheries. NMFS may implement more restrictive regulations for the sport fishery for halibut or components of it; therefore, anglers are advised to check the current Federal and IPHC regulations prior to fishing.

Catch Limits

The IPHC recommended to the governments of Canada and the United States catch limits for 2016 totaling 29,890,000 lb (13,558 mt). The IPHC recommended area-specific catch limits for 2016 that were higher than 2015 in most of its management areas except Area 3A, where catch limits were reduced, and Areas 4A and 4B where catch limits remained at the same level as in 2015. The IPHC is responding to stock challenges with a risk-based precautionary approach and a review of the current harvest policy to ensure the best possible advice. A description of the process the IPHC used to set these catch limits follows.

Since 2012, the stock assessments have been based on an ensemble of models incorporating the uncertainty within each model as well as the uncertainty among models. This approach provides a stronger basis for risk assessment of specific management measures that may be recommended by the IPHC. The 2015 stock assessment used the same suite of models as in 2014, and incorporated several new data sources. The stock assessment ensemble included short and long time-series models based on both the coastwide and the areas-as-fleets (AAF) approaches. The two AAF models considered in 2015 assess the halibut population as a coastwide stock, while allowing for region-specific variations in the selectivity and catchability in the treatment of survey and fishery information. This combination of models included uncertainty in natural mortality rates, environmental effects on recruitment, and uncertainty in other model parameters. New data sources used in 2015 included updated mortality estimates, additional survey sampling stations in the eastern Bering Sea, calibration of IPHC survey data with NMFS trawl survey data, improved weight-at-age estimates by region and for young halibut, and age distribution information for bycatch, sport, and sublegal discard removals.

The assessment indicates that the Pacific halibut stock declined continuously from the late 1990s to around 2010. That trend is estimated to have been a result of decreasing size at age as well as smaller recruitments than those observed through the 1980s and 1990s. In recent years, the estimated female spawning biomass appears to have stabilized near 200 million pounds. Overall, the ensemble models project a stable or gradual increase in halibut biomass over the next 3 years at current harvest rates.

Since 2013, and as part of an ongoing effort to provide Commissioners with greater flexibility when selecting catch limits, in January 2016 IPHC staff provided a decision table that estimates the consequences to the stock and fishery status and trends from different levels of harvest. This decision table accommodates uncertainty in the stock status and allowed the Commissioners to weigh the risk and benefits of management choices as they set the annual catch limits. After considering harvest advice for 2016 from its scientific staff, Canadian and U.S. harvesters and processors, and other fishery agencies, the IPHC recommended catch limits for 2016 to the U.S. and Canadian governments (see Table 1 below).

The IPHC recommended higher catch limits than 2015 for Areas 2A, 2B, and 2C because the stock assessment survey and fishery weight per unit effort (WPUE) estimates continue to indicate a stable and upward trend in exploitable biomass in these areas. The IPHC recommended higher catch limits than would result from the application of the IPHC's current harvest policy in Areas 2A, 2B, and 2C. The IPHC made these catch limit recommendations after considering the low risk of an adverse impact on the halibut stock and the favorable survey and fishery trends in these areas.

The IPHC recommended a reduced catch limit for Area 3A compared to 2015 because the survey showed a third consecutive annual decrease in WPUE. The IPHC recommended setting the catch limit for Area 3A at halfway between the 2015 catch limit and the limit that would result from the application of the IPHC's current harvest policy. This “half-down” approach is intended to minimize negative economic impacts on fishery participants while maintaining a conservative harvest rate.

The IPHC recommended a catch limit consistent with the IPHC's current harvest policy for Area 3B. The IPHC noted that the catch limit recommendation in Area 3B is precautionary and a catch limit greater than the current harvest policy is not warranted. The catch limit in Area 3B increased slightly relative to 2015 due to increased survey and fishery WPUE and an increased biomass estimate.

The IPHC recommended catch limits for Areas 4A and 4B that are the same as the 2015 limits and slightly above the IPHC's current harvest policy for these areas. The IPHC recommended only a slight increase in the catch limit amount in Area 4A relative to the current harvest policy because the stock trends in this area are highly variable and showed a decrease in survey WPUE; therefore, a more precautionary approach to management is appropriate. The IPHC recommended a catch limit somewhat larger than the current harvest policy for Area 4B because this area shows strong signs of stabilization in survey and fishery WPUE.

The IPHC recommended a catch limit for Areas 4CDE that is higher than that adopted in 2015, but only slightly above the catch limit that would result from application of the IPHC's current harvest policy. The IPHC noted the increase in the Area 4CDE survey WPUE and biomass estimate and a significant decrease in halibut bycatch by the commercial groundfish trawl fleet in the Bering Sea in 2015.

The IPHC also considered the Catch Sharing Plan for Area 4 developed by the NPFMC in its catch limit recommendation. When the Area 4CDE catch limit is greater than 1,657,600 lb (751.9 mt), a direct allocation of 80,000 lb (36.3 mt) is made to Area 4E to provide CDQ fishermen in that area with additional harvesting opportunity. After this 80,000 lb allocation is deducted from the catch limit, the remainder is divided among Areas 4C, 4D, and 4E according to the percentages specified in the CSP. Those percentages are 46.43% each to 4C and 4D, and 7.14% to 4E. The IPHC recommended a catch limit for Area 4CDE of 1,660,000 lb (753.0 mt) for 2016 to provide socioeconomic benefits from increased harvest opportunities in Area 4E.

Overall, the IPHC's catch limit recommendations for 2016 are projected to result in a stable or slightly increasing halibut stock in the future.

Table 1—Percent Change in Catch Limits From 2015 to 2016 by IPHC Regulatory Area Regulatory area 2016 IPHC recommended catch limit (lb) 2015 Catch limit (lb) Percent change from 2015
  • (percent)
  • 2A 1 1,140,000 970,000 17.5 2B 2 7,300,000 7,038,000 3.7 2C 3 4,950,000 4,650,000 6.5 3A 3 9,600,000 10,100,000 −5.0 3B 2,710,000 2,650,000 2.3 4A 1,390,000 1,390,000 0.0 4B 1,140,000 1,140,000 0.0 4CDE 1,660,000 1,285,000 29.2 Coastwide 29,890,000 29,223,000 2.3 1 Area 2A catch limit includes sport, commercial, and tribal catch limits. 2 Area 2B catch limit includes sport and commercial catch limits. 3 Shown is the combined commercial and charter allocation under the Area 2C and Area 3A CSP. This value includes allocations to the charter sector, and an amount for commercial wastage. The commercial catch limits after deducting wastage are 3,924,000 lb in Area 2C and 7,336,000 lb in Area 3A.
    Commercial Halibut Fishery Opening and Closing Dates

    Both opening and closing dates take into account advice from the IPHC's two advisory boards. The opening date for the tribal commercial fishery in Area 2A and for the commercial halibut fisheries in Areas 2B through 4E is March 19, 2016. The date takes into account a number of factors, including the timing of halibut migration and spawning, tides, and having a Saturday season opening to facilitate marketing. The closing date for the halibut fisheries is November 7, 2016. This date takes into account the anticipated time required to fully harvest the commercial halibut catch limits, seasonal holidays, and adequate time for IPHC staff to review the complete record of 2016 commercial catch data for use in the 2016 stock assessment process.

    In the Area 2A non-treaty directed commercial fishery the IPHC recommended eight 10-hour fishing periods. Each fishing period shall begin at 0800 hours and terminate at 1800 hours local time on June 22, July 6, July 20, August 3, August 17, August 31, September 14, and September 28, 2016, unless the IPHC specifies otherwise. These 10-hour openings will occur until the quota is taken and the fishery is closed.

    Area 2A Catch Sharing Plan

    The NMFS West Coast Region published a proposed rule for changes to the Pacific Halibut Catch Sharing Plan for Area 2A off Washington, Oregon, and California on February 19, 2016 (81 FR 8466), with public comments accepted through March 10, 2016. A separate final rule will be published to approve changes to the Area 2A CSP and to implement the portions of the CSP and management measures that are not implemented through the IPHC annual management measures that are published in this final rule. These measures include the sport fishery allocations and management measures for Area 2A. Once published, the final rule implementing the Area 2A CSP will be available on the NOAA Fisheries West Coast Region's Web site at http://www.westcoast.fisheries.noaa.gov/fisheries/management/pacific_halibut_management.html, and under FDMS Docket Number NOAA-NMFS-2015-0166 at www.regulations.gov.

    Catch Sharing Plan for Area 2C and Area 3A

    In 2014, NMFS implemented a CSP for Area 2C and Area 3A. The CSP defines an annual process for allocating halibut between the charter and commercial fisheries in Area 2C and Area 3A, and establishes allocations for each fishery. To allow flexibility for individual commercial and charter fishery participants, the CSP also authorizes annual transfers of commercial halibut IFQ as GAF to charter halibut permit holders for harvest in the charter fishery. Under the CSP, the IPHC recommends combined catch limits (CCLs) for the charter and commercial halibut fisheries in Area 2C and Area 3A. Each CCL includes estimates of discard mortality (wastage) for each fishery. The CSP was implemented to achieve the halibut fishery management goals of the NPFMC. More information is provided in the final rule implementing the CSP (78 FR 75844, December 12, 2013). Implementing regulations for the CSP are at 50 CFR 300.65. The Area 2C and Area 3A CSP allocation tables are located in Tables 1 through 4 of subpart E of 50 CFR part 300. The IPHC recommended a CCL of 4,950,000 lb (2,245.3 mt) for Area 2C. Following the CSP allocations in Tables 1 and 3 of subpart E of 50 CFR part 300, the commercial fishery is allocated 81.7 percent or 4,044,000 lb (1,834.3 mt), and the charter fishery is allocated 18.3 percent or 906,000 lb (411 mt) of the CCL (rounded to the nearest 1,000 lb). Wastage in the amount of 120,000 lb (54.4 mt) was deducted from the commercial allocation to obtain the commercial catch limit of 3,924,000 lb (1,779.9 mt). The charter allocation for 2016 is about 55,000 lb (24.9 mt), or 6.5 percent greater than the charter sector allocation of 851,000 lb (386.0 mt) in 2015.

    The IPHC recommended a CCL of 9,600,000 lb (4,354.5 mt) for Area 3A. Following the CSP allocations in Tables 2 and 4 of subpart E of 50 CFR part 300, the commercial fishery is allocated 81.1 percent or 7,786,000 lb (3,531.7 mt), and the charter fishery is allocated 18.9 percent or 1,814,000 lb (822.8 mt). Discard mortality in the amount of 450,000 lb (204.1 mt) was deducted from the commercial allocation to obtain the commercial catch limit of 7,336,000 lb (3,327.6 mt). The charter allocation decreased by about 76,000 lb (34.5 mt), or 4.0 percent, from the 2015 allocation of 1,890,000 lb (857.3 mt).

    Charter Halibut Management Measures for Area 2C and Area 3A

    Guided (charter) recreational halibut anglers are managed under different regulations than unguided recreational halibut anglers in Areas 2C and 3A in Alaska. According to Federal definitions at 50 CFR 300.61, a charter vessel angler, for purposes of §§ 300.65, 300.66, and 300.67, means a person, paying or non-paying, receiving sport fishing guide services for halibut. Sport fishing guide services means assistance, for compensation or with the intent to receive compensation, to a person who is sport fishing, to take or attempt to take halibut by accompanying or physically directing the sport fisherman in sport fishing activities during any part of a charter vessel fishing trip. A charter vessel fishing trip is the time period between the first deployment of fishing gear into the water from a charter vessel by a charter vessel angler and the offloading of one or more charter vessel anglers or any halibut from that vessel. The charter fishery regulations described below apply only to charter vessel anglers receiving sport fishing guide services during a charter vessel fishing trip for halibut in Area 2C or Area 3A. These regulations do not apply to unguided recreational anglers in any regulatory area in Alaska, or guided anglers in areas other than Areas 2C and 3A.

    The NPFMC formed the Charter Halibut Management Implementation Committee to provide it with recommendations for annual management measures intended to limit charter harvest to the charter catch limit while minimizing negative economic impacts to the charter fishery participants in times of low halibut abundance. The committee is composed of representatives from the charter fishing industry in Areas 2C and 3A. The committee selected management measures for further analysis from a suite of alternatives that were presented in October 2015. After reviewing an analysis of the effects of the alternative measures on estimated charter removals, the committee made recommendations for preferred management measures to the NPFMC for 2016. The NPFMC considered the recommendations of the committee, its industry advisory body, and public testimony to develop its recommendation to the IPHC, and the IPHC took action consistent with the NPFMC's recommendations. The NPFMC has used this process to select and recommend annual management measures to the IPHC since 2012.

    The IPHC recognizes the role of the NPFMC to develop policy and regulations that allocate the Pacific halibut resource among fishermen in and off Alaska, and that NMFS has developed numerous regulations to support the NPFMC's goals of limiting charter harvests over the past several years. The IPHC concluded that new management measures were necessary for 2016 to limit the Area 2C and Area 3A charter halibut fisheries to their charter catch limits under the CSP, to achieve the IPHC's overall conservation objective to limit total halibut harvests to established catch limits, and to meet the NPFMC's allocation objectives for these areas. The IPHC determined that limiting charter harvests by implementing the management measures discussed below would meet these objectives.

    Management Measures for Charter Vessel Fishing in Area 2C

    The preliminary estimate of charter removals in Area 2C was below the 2015 charter allocation by about 3,000 lb (1.36 mt) or 0.4 percent, indicating that the 2015 management measures were appropriate and effective at limiting harvest by charter vessel anglers to the charter allocation. While charter halibut harvest in Area 2C is projected to increase by 29,000 lb (13.2 mt) in 2016 due to expected increases in angler effort, the catch limit increased by 55,000 lb (24.9 mt), allowing management measures to be relaxed slightly for 2016.

    The preliminary estimate of charter wastage (release mortality) in 2015 represented about 5.9 percent of the directed harvest amount. Therefore, projected charter harvest for 2016 was inflated by 6 percent to account for all charter removals in the selection of annual management measures for Area 2C.

    Relaxation of management measures is possible, while managing total charter removals, including wastage, in Area 2C to the 2016 allocation of 906,000 lb (411.0 mt). This final rule amends the 2015 measures applicable to the charter vessel fishery in Area 2C to relax restrictions and allow additional harvest relative to 2015.

    For 2016, the IPHC recommended the continuation of a one-fish daily bag limit with a reverse slot limit, as was in place in 2015, but increasing the lower size limit. The IPHC recommends a reverse slot limit that prohibits a person on board a charter vessel referred to in 50 CFR 300.65 and fishing in Area 2C from taking or possessing any halibut, with head on, that is greater than 43 inches (109 cm) and less than 80 inches (203 cm), as measured in a straight line, passing over the pectoral fin from the tip of the lower jaw with mouth closed, to the extreme end of the middle of the tail. The 2015 reverse slot limit prohibited retention by charter vessel anglers of halibut that were greater than 42 inches (107 cm) and less than 80 inches. Projected charter harvest under the 2016 recommended reverse slot limit is 877,000 lb (397.8 mt), 29,000 lb (13.2 mt) below the charter allocation. The recommended reverse slot limit for 2016 will increase harvest opportunities for charter vessel anglers, while managing total charter removals to the charter allocation.

    Management Measures for Charter Vessel Fishing in Area 3A

    The preliminary estimate of charter removals in Area 3A in 2015 exceeded the charter allocation by 173,000 lb (78.5 mt), or 9.2 percent, primarily because the halibut that were caught and retained by charter vessel anglers were 9 percent heavier, on average, than predicted for the size and bag limits in place. In 2015, charter vessel anglers in Area 3A were limited to a two-fish daily bag limit with a maximum size limit on one fish. One effect of the maximum size limit was that the number of fish harvested per angler decreased compared to 2014, but the average weight of harvested fish increased as many anglers opted to maximize the size of retained fish. The estimation error for average weight was factored into the analysis of potential management measures for 2016. Trends in effort are projected to remain fairly flat in 2016 in Area 3A.

    The preliminary estimate of charter wastage in 2015 represented less than 2 percent of the directed harvest amount. The projected charter harvest for 2016 was increased by 1.5 percent to account for total charter removals in the selection of appropriate annual management measures for Area 3A for 2016.

    This final rule amends the 2015 management measures applicable to the charter halibut fishery in Area 3A. The NPFMC and IPHC considered 2015 information on charter removals and the projections of charter harvest for 2016. The NPFMC and IPHC determined that changes to the 2015 Area 3A management measures are necessary to manage total charter removals, including wastage, within the 2016 allocation.

    For 2016, the IPHC recommended the following management measures for Area 3A: (1) A two-fish bag limit with a 28-inch size limit on one of the halibut; (2) a one-trip per day limit; (3) a day-of-week closure; and (4) an annual limit, with a new reporting requirement. The projected charter harvest for 2016 under this combination of recommended measures is 1,799,000 lb (816.0 mt), 15,000 lb (6.8 mt) below the charter allocation. Each of these management measures is described in more detail below.

    Size Limit for Halibut Retained on a Charter Vessel in Area 3A

    The 2016 charter halibut fishery in Area 3A will be managed under a two-fish daily bag limit in which one of the retained halibut may be of any size and one of the retained halibut must be 28 inches (71 cm) total length or less. This is a 1-inch (2.5-cm) reduction in the maximum size limit from 2015. The NPFMC and the IPHC recommended the 2015 daily bag limit with a reduced size limit in Area 3A for 2016 to maintain similar angling opportunities to previous years. This daily bag and size limit will be combined with additional restrictions to limit charter halibut removals to the 2016 allocation.

    Trip Limit for Charter Vessels Harvesting Halibut in Area 3A

    In 2014, charter vessels were limited to one charter halibut fishing trip in which halibut were retained per calendar day in Area 3A. The one-trip per day limit remained in place in Area 3A for 2015. If no halibut were retained during a charter vessel fishing trip, the vessel could take an additional trip to catch and retain halibut that day. The trip limit applied to vessels only, not to charter halibut permits. A charter operator could use more than one vessel to take more than one charter vessel fishing trip using the same charter halibut permit per day. Trip limits affect only a small number of charter operators and allow the size of the size-restricted fish in the daily bag limit to be maximized for the entire charter fleet in Area 3A. Without a trip limit, a more restrictive size or bag limit might have been necessary to achieve harvest targets.

    For 2016, the NPFMC and IPHC recommended that the trip limit be applied to charter halibut permits and charter vessels to further reduce harvest in Area 3A. That is, a charter halibut permit will only be authorized for use to catch and retain halibut on one charter halibut fishing trip per day. Additionally, a charter vessel will only be authorized for use on one charter halibut fishing trip per day. If no halibut are retained during a charter vessel fishing trip, the charter halibut permit and vessel may be used to take an additional trip to catch and retain halibut that day. This new regulation will make the daily trip limit more restrictive because charter halibut permits will no longer be allowed for use on multiple charter vessels for multiple charter vessel fishing trips in a day.

    For purposes of the trip limit in Area 3A in 2016, a charter vessel fishing trip will end when anglers or halibut are offloaded, or at the end of the calendar day, whichever occurs first. Charter operators are still able to conduct overnight trips and anglers may retain a bag limit of halibut on each calendar day, but operators are not allowed to begin another overnight trip until the day after the trip ends. For example, if an overnight trip started on a Monday and ended on a Tuesday, and charter vessel anglers harvested halibut on Monday and Tuesday, the charter operator is not able to start another charter vessel fishing trip on that vessel until Wednesday. Alternatively, charter vessel anglers could harvest halibut on the first calendar day of an overnight trip, but not the second, allowing the guide to embark on another overnight trip on the second day. GAF halibut are exempt from the trip limit; therefore, GAF could be used to harvest halibut on a second trip in a day, but only if exclusively GAF halibut were harvested on that trip. For example, if an overnight trip started on a Monday and anglers harvested halibut on Monday, they could harvest GAF on Tuesday, allowing the charter operator to start another charter vessel fishing trip on Tuesday on the same charter vessel and charter vessel anglers to harvest halibut on Tuesday.

    Day-of-Week Closure in Area 3A

    The NPFMC and the IPHC recommended continuing a day-of-week closure for Area 3A in 2016. No retention of halibut by charter vessel anglers will be allowed in Area 3A on Wednesdays. In 2015, there was a day-of-week closure on Thursdays between June 15 and August 31. The day of closure is recommended to be changed to Wednesdays because more halibut were estimated to have been harvested on Wednesdays than Thursdays in 2014, the year prior to implementation of the day-of-week closure. To further reduce harvest, the day-of-week closure will be extended in 2016 for the entire season. Retention of only GAF halibut will be allowed on charter vessels on Wednesdays; all other halibut that are caught while fishing on a charter vessel must be released.

    Annual Limit of Four Fish for Charter Vessels Anglers in Area 3A

    Charter vessel anglers will be limited to harvesting no more than four halibut on charter vessel fishing trips in Area 3A during a calendar year. A decrease from the 2015 annual limit of five fish is needed to reduce charter harvest to the 2016 allocation. This limit applies only to halibut caught and retained during charter vessel fishing trips in Area 3A. Halibut harvested while unguided fishing, fishing in other IPHC regulatory areas, or harvested as GAF will not accrue toward the annual limit.

    The 2015 regulations, including a 5-fish annual limit for charter vessel anglers in Area 3A, are effective until superseded. It is possible that some charter vessel anglers will have caught and retained halibut in 2016 prior to the publication of these annual management measures. A charter vessel angler in Area 3A would be able to retain five halibut, only if all five halibut were caught before the publication of these annual management measures. If fewer than five halibut were harvested prior to the effective date of this rule, the 4-fish annual limit will apply.

    Reporting Requirement for Annual Limit in Area 3A Guided Sport Fisheries

    In 2015, compliance with the annual limit in Area 3A was determined post-season through landings reported in the Alaska Department of Fish and Game (ADF&G) Saltwater Charter Logbook. Based on monitoring and enforcement activities for the annual limit in 2015, the NPFMC determined that the ability of enforcement agents to monitor and enforce the annual limit could be improved by implementation of a requirement for anglers to provide a cumulative halibut harvest record.

    The IPHC approved a reporting requirement for 2016 that was recommended by the NPFMC to complement the annual limit in Area 3A. This reporting requirement will improve compliance and enforceability of the 4-fish annual limit. In 2016, each charter vessel angler who is required to have a State of Alaska sport fishing license and who harvests halibut will be required to record those halibut on the back of the fishing license. For those anglers who are not required to have a sport fishing license (e.g., youth and senior anglers), a nontransferable Sport Harvest Record Card must be obtained from an ADF&G office, the ADF&G Web site, or a fishing license vendor, on which to record halibut harvested aboard a charter vessel. Immediately upon retention of a halibut for which an annual limit has been established, the charter vessel angler must record the date, location (Area 3A), and species of the catch (halibut), in ink, on the harvest record card or back of the sport fishing license.

    If the original sport fishing license or harvest record is lost, a duplicate or additional sport fishing license or harvest record card must be obtained and completed for all halibut previously retained during that year that were subject to the annual limit.

    Only halibut caught during a charter vessel fishing trip in Area 3A accrue toward the 4-fish annual limit and must be recorded on the license or harvest record card. Halibut that are harvested while charter fishing in regulatory areas other than Area 3A will not accrue toward the annual limit and are not subject to the reporting requirement. Likewise, halibut harvested while sport fishing without a guide in Area 3A, harvested while subsistence fishing, or harvested as GAF do not accrue toward the annual limit and should not be recorded on the license or harvest record. Finally, halibut that are caught during a charter vessel fishing trip that bear IPHC external tags are exempt from the annual limit and reporting requirements (see description below).

    Areas 2C and 3A Carcass Retention Requirement

    NMFS published a final rule on June 19, 2015 (80 FR 35195), that revised Federal regulations for charter halibut fishing in Areas 2C and 3A. That rule revised several Federal regulations and definitions pertaining to charter fishing for halibut, including changing the definition of “sport fishing guide services.” Some revisions to the 2015 IPHC annual management measures were also necessary to facilitate compliance and enforcement. The guide definition rule implemented a Federal regulation requiring carcass retention at § 300.65(d)(5) that duplicated 2015 annual management measures at sections 28(2)(d) and 28(3)(d). These regulations require that carcasses of size-restricted halibut be retained on board the vessel until offloading. The carcass-retention requirements were implemented to improve compliance and enforceability of size limits. The IPHC recommended removing the carcass-retention requirements from the IPHC annual management measures after the carcass-retention requirement became effective in Federal regulations. The carcass-retention requirement became effective in Federal regulations on July 20, 2015. The carcass-retention requirements formerly in the IPHC annual management measures at sections 28(2)(b) and 28(3)(b) have been removed for 2016.

    Tagged Halibut Exemption

    IPHC regulations at Section 21 allow any vessel at any time to retain and land a halibut that bears an IPHC external tag at time of capture, if the halibut with the tag still attached is reported at the time of landing and made available for examination by the representative of the IPHC or by an authorized officer. However, these retained tagged halibut were required to count against commercial individual vessel quotas, community development quotas, individual fishing quotas, and daily bag and possession limits unless otherwise exempted by State, Provincial, or Federal regulations. One such exemption exists at § 679.40(g)(2) for the IPHC regulatory areas in Alaska, which states that halibut bearing an external research tag from any state, Federal, or international agency shall be excluded from IFQ or CDQ deductions. For 2016, the IPHC recommends that halibut with an external IPHC tag will not count against sport daily bag limits or possession limits, can be retained outside of sport fishing seasons, and are not limited to size restrictions in any regulatory area. Likewise, halibut with an external IPHC tag will not count against daily bag limits in the customary and traditional (subsistence) fisheries in Alaska. These changes are intended to encourage sport and subsistence anglers to retain and report externally tagged halibut to the IPHC, as it is important that the IPHC receive the scientific information from these tagged halibut.

    Retention of Incidentally Caught Halibut in Sablefish Pots in Alaska

    IPHC regulations currently authorize only hook-and-line gear for retention of halibut in Alaska. In April 2015, the NPFMC recommended regulatory revisions to authorize the use of longline pot gear in the Gulf of Alaska sablefish IFQ fisheries. These fisheries take place in a portion of IPHC Regulatory Area 2C (not including the inside waters), Regulatory Areas 3A and, 3B, and that portion of Area 4A in the Gulf of Alaska west of Area 3B and east of 170°00′ W. long.. As part of its action, the NPFMC recommended that vessels be able to retain legal-size halibut that are caught incidentally in pots in the sablefish IFQ fisheries if the person(s) on the vessel holds sufficient area-specific halibut IFQ to cover the incidental catch. Because the IPHC has authority to establish legal gear for the retention of the halibut, the NPFMC's recommendation included a request to the IPHC to consider amending the annual management measures to authorize retention of incidentally caught halibut in longline pot gear in the Gulf of Alaska sablefish IFQ fisheries.

    The NPFMC's intent is to authorize retention of halibut caught incidentally in longline pot gear subject to current retention requirements for the halibut IFQ Program (i.e., only if the halibut are of legal size and a person(s) on the vessel holds sufficient halibut IFQ). This recommendation is intended to avoid discard mortality of legal-size halibut caught incidentally in longline pots in the sablefish IFQ fishery, similar to current regulations that authorize sablefish and halibut IFQ holders using hook-and-line gear to retain legal-size halibut caught incidentally during the sablefish IFQ fishery.

    At its 2016 annual meeting, the IPHC approved longline pot gear, as defined by the NPFMC, as legal gear for the commercial halibut fishery in Alaska when NMFS regulations permit the use of this gear in the IFQ sablefish fishery. The IPHC anticipates that NMFS will implement regulations to allow the use of pot gear in the Gulf of Alaska sablefish IFQ fishery in late 2016 or at the beginning of 2017. The IPHC noted that it intends to review the use of longline pot gear as a legal gear for halibut in this fishery in order to monitor the amount of halibut incidentally caught in longline pot gear in the sablefish IFQ fishery.

    Other Regulatory Amendments

    The IPHC approved several additional amendments to the 2016 annual management measures. First, the IPHC approved the explicit addition of the electronic version of the NMFS Groundfish/IFQ Longline and Pot Gear Daily Fishing Logbook to the list of acceptable logbooks for use in the Alaskan commercial halibut fishery in Section 16, paragraph 1. Second, the IPHC approved revisions to regulations to clarify that the Tribal Identification Number and not the Vessel Identification Number should be recorded in logbooks and on fish tickets in Area 2A treaty Indian fisheries. Finally, the description of Area 2A-1 in Section 22, paragraph 1, was modified to match the description in the Area 2A Catch Sharing Plan, which was changed to account for a recent court order regarding tribal fishing areas.

    Annual Halibut Management Measures

    The following annual management measures for the 2016 Pacific halibut fishery are those recommended by the IPHC and accepted by the Secretary of State, with the concurrence of the Secretary of Commerce.

    1. Short Title

    These Regulations may be cited as the Pacific Halibut Fishery Regulations.

    2. Application

    (1) These Regulations apply to persons and vessels fishing for halibut in, or possessing halibut taken from, the maritime area as defined in Section 3.

    (2) Sections 3 to 6 apply generally to all halibut fishing.

    (3) Sections 7 to 20 apply to commercial fishing for halibut.

    (4) Section 21 applies to tagged halibut caught by any vessel.

    (5) Section 22 applies to the United States treaty Indian fishery in Subarea 2A-1.

    (6) Section 23 applies to customary and traditional fishing in Alaska.

    (7) Section 24 applies to Aboriginal groups fishing for food, social and ceremonial purposes in British Columbia.

    (8) Sections 25 to 28 apply to sport fishing for halibut.

    (9) These Regulations do not apply to fishing operations authorized or conducted by the Commission for research purposes.

    3. Definitions

    (1) In these Regulations,

    (a) “authorized officer” means any State, Federal, or Provincial officer authorized to enforce these Regulations including, but not limited to, the National Marine Fisheries Service (NMFS), Canada's Department of Fisheries and Oceans (DFO), Alaska Wildlife Troopers (AWT), United States Coast Guard (USCG), Washington Department of Fish and Wildlife (WDFW), the Oregon State Police (OSP), and California Department of Fish and Wildlife (CDFW);

    (b) “authorized clearance personnel” means an authorized officer of the United States, a representative of the Commission, or a designated fish processor;

    (c) “charter vessel” outside of Alaska waters means a vessel used for hire in sport fishing for halibut, but not including a vessel without a hired operator, and in Alaska waters means a vessel used while providing or receiving sport fishing guide services for halibut;

    (d) “commercial fishing” means fishing, the resulting catch of which is sold or bartered; or is intended to be sold or bartered, other than (i) sport fishing, (ii) treaty Indian ceremonial and subsistence fishing as referred to in section 22, (iii) customary and traditional fishing as referred to in section 23 and defined by and regulated pursuant to NMFS regulations published at 50 CFR part 300, and (iv) Aboriginal groups fishing in British Columbia as referred to in section 24;

    (e) “Commission” means the International Pacific Halibut Commission;

    (f) “daily bag limit” means the maximum number of halibut a person may take in any calendar day from Convention waters;

    (g) “fishing” means the taking, harvesting, or catching of fish, or any activity that can reasonably be expected to result in the taking, harvesting, or catching of fish, including specifically the deployment of any amount or component part of gear anywhere in the maritime area;

    (h) “fishing period limit” means the maximum amount of halibut that may be retained and landed by a vessel during one fishing period;

    (i) “land” or “offload” with respect to halibut, means the removal of halibut from the catching vessel;

    (j) “license” means a halibut fishing license issued by the Commission pursuant to section 4;

    (k) “maritime area”, in respect of the fisheries jurisdiction of a Contracting Party, includes without distinction areas within and seaward of the territorial sea and internal waters of that Party;

    (l) “net weight” of a halibut means the weight of halibut that is without gills and entrails, head-off, washed, and without ice and slime. If a halibut is weighed with the head on or with ice and slime, the required conversion factors for calculating net weight are a 2 percent deduction for ice and slime and a 10 percent deduction for the head;

    (m) “operator”, with respect to any vessel, means the owner and/or the master or other individual on board and in charge of that vessel;

    (n) “overall length” of a vessel means the horizontal distance, rounded to the nearest foot, between the foremost part of the stem and the aftermost part of the stern (excluding bowsprits, rudders, outboard motor brackets, and similar fittings or attachments);

    (o) “person” includes an individual, corporation, firm, or association;

    (p) “regulatory area” means an area referred to in section 6;

    (q) “setline gear” means one or more stationary, buoyed, and anchored lines with hooks attached;

    (r) “sport fishing” means all fishing other than (i) commercial fishing, (ii) treaty Indian ceremonial and subsistence fishing as referred to in section 22, (iii) customary and traditional fishing as referred to in section 23 and defined in and regulated pursuant to NMFS regulations published in 50 CFR part 300, and (iv) Aboriginal groups fishing in British Columbia as referred to in section 24;

    (s) “tender” means any vessel that buys or obtains fish directly from a catching vessel and transports it to a port of landing or fish processor;

    (t) “VMS transmitter” means a NMFS-approved vessel monitoring system transmitter that automatically determines a vessel's position and transmits it to a NMFS-approved communications service provider.1

    1 Call NOAA Enforcement Division, Alaska Region, at 907-586-7225 between the hours of 0800 and 1600 local time for a list of NMFS-approved VMS transmitters and communications service providers.

    (2) In these Regulations, all bearings are true and all positions are determined by the most recent charts issued by the United States National Ocean Service or the Canadian Hydrographic Service.

    4. Licensing Vessels for Area 2A

    (1) No person shall fish for halibut from a vessel, nor possess halibut on board a vessel, used either for commercial fishing or as a charter vessel in Area 2A, unless the Commission has issued a license valid for fishing in Area 2A in respect of that vessel.

    (2) A license issued for a vessel operating in Area 2A shall be valid only for operating either as a charter vessel or a commercial vessel, but not both.

    (3) A vessel with a valid Area 2A commercial license cannot be used to sport fish for Pacific halibut in Area 2A.

    (4) A license issued for a vessel operating in the commercial fishery in Area 2A shall be valid for one of the following:

    (a) The directed commercial fishery during the fishing periods specified in paragraph (2) of section 8;

    (b) the incidental catch fishery during the sablefish fishery specified in paragraph (3) of section 8; or

    (c) the incidental catch fishery during the salmon troll fishery specified in paragraph (4) of section 8.

    (5) No person may apply for or be issued a license for a vessel operating in the incidental catch fishery during the salmon troll fishery in paragraph (4)(c), if that vessel was previously issued a license for either the directed commercial fishery in paragraph (4)(a) or the incidental catch fishery during the sablefish fishery in paragraph (4)(b).

    (6) A license issued in respect to a vessel referred to in paragraph (1) of this section must be carried on board that vessel at all times and the vessel operator shall permit its inspection by any authorized officer.

    (7) The Commission shall issue a license in respect to a vessel, without fee, from its office in Seattle, Washington, upon receipt of a completed, written, and signed “Application for Vessel License for the Halibut Fishery” form.

    (8) A vessel operating in the directed commercial fishery in Area 2A must have its “Application for Vessel License for the Halibut Fishery” form postmarked no later than 11:59 p.m. on April 30, or on the first weekday in May if April 30 is a Saturday or Sunday.

    (9) A vessel operating in the incidental catch fishery during the sablefish fishery in Area 2A must have its “Application for Vessel License for the Halibut Fishery” form postmarked no later than 11:59 p.m. on March 15, or the next weekday in March if March 15 is a Saturday or Sunday.

    (10) A vessel operating in the incidental catch fishery during the salmon troll fishery in Area 2A must have its “Application for Vessel License for the Halibut Fishery” form postmarked no later than 11:59 p.m. on March 15, or the next weekday in March if March 15 is a Saturday or Sunday.

    (11) Application forms may be obtained from any authorized officer or from the Commission.

    (12) Information on “Application for Vessel License for the Halibut Fishery” form must be accurate.

    (13) The “Application for Vessel License for the Halibut Fishery” form shall be completed and signed by the vessel owner.

    (14) Licenses issued under this section shall be valid only during the year in which they are issued.

    (15) A new license is required for a vessel that is sold, transferred, renamed, or the documentation is changed.

    (16) The license required under this section is in addition to any license, however designated, that is required under the laws of the United States or any of its States.

    (17) The United States may suspend, revoke, or modify any license issued under this section under policies and procedures in Title 15, CFR part 904.

    5. In-Season Actions

    (1) The Commission is authorized to establish or modify regulations during the season after determining that such action:

    (a) Will not result in exceeding the catch limit established preseason for each regulatory area;

    (b) is consistent with the Convention between Canada and the United States of America for the Preservation of the Halibut Fishery of the Northern Pacific Ocean and Bering Sea, and applicable domestic law of either Canada or the United States; and

    (c) is consistent, to the maximum extent practicable, with any domestic catch sharing plans or other domestic allocation programs developed by the United States or Canadian governments.

    (2) In-season actions may include, but are not limited to, establishment or modification of the following:

    (a) Closed areas;

    (b) fishing periods;

    (c) fishing period limits;

    (d) gear restrictions;

    (e) recreational bag limits;

    (f) size limits; or

    (g) vessel clearances.

    (3) In-season changes will be effective at the time and date specified by the Commission.

    (4) The Commission will announce in-season actions under this section by providing notice to major halibut processors; Federal, State, United States treaty Indian, and Provincial fishery officials; and the media.

    6. Regulatory Areas

    The following areas shall be regulatory areas (see Figure 1) for the purposes of the Convention:

    (1) Area 2A includes all waters off the states of California, Oregon, and Washington;

    (2) Area 2B includes all waters off British Columbia;

    (3) Area 2C includes all waters off Alaska that are east of a line running 340° true from Cape Spencer Light (58°11′56″ N. latitude, 136°38′26″ W. longitude) and south and east of a line running 205° true from said light;

    (4) Area 3A includes all waters between Area 2C and a line extending from the most northerly point on Cape Aklek (57°41′15″ N. latitude, 155°35′00″ W. longitude) to Cape Ikolik (57°17′17″ N. latitude, 154°47′18″ W. longitude), then along the Kodiak Island coastline to Cape Trinity (56°44′50″ N. latitude, 154°08′44″ W. longitude), then 140° true;

    (5) Area 3B includes all waters between Area 3A and a line extending 150° true from Cape Lutke (54°29′00″ N. latitude, 164°20′00″ W. longitude) and south of 54°49′00″ N. latitude in Isanotski Strait;

    (6) Area 4A includes all waters in the Gulf of Alaska west of Area 3B and in the Bering Sea west of the closed area defined in section 10 that are east of 172°00′00″ W. longitude and south of 56°20′00″ N. latitude;

    (7) Area 4B includes all waters in the Bering Sea and the Gulf of Alaska west of Area 4A and south of 56°20′00″ N. latitude;

    (8) Area 4C includes all waters in the Bering Sea north of Area 4A and north of the closed area defined in section 10 which are east of 171°00′00″ W. longitude, south of 58°00′00″ N. latitude, and west of 168°00′00″ W. longitude;

    (9) Area 4D includes all waters in the Bering Sea north of Areas 4A and 4B, north and west of Area 4C, and west of 168°00′00″ W. longitude; and

    (10) Area 4E includes all waters in the Bering Sea north and east of the closed area defined in section 10, east of 168°00′00″ W. longitude, and south of 65°34′00″ N. latitude.

    7. Fishing in Regulatory Area 4E and 4D

    (1) Section 7 applies only to any person fishing, or vessel that is used to fish for, Area 4E Community Development Quota (CDQ) or Area 4D CDQ halibut, provided that the total annual halibut catch of that person or vessel is landed at a port within Area 4E or 4D.

    (2) A person may retain halibut taken with setline gear in Area 4E CDQ and 4D CDQ fishery that are smaller than the size limit specified in section 13, provided that no person may sell or barter such halibut.

    (3) The manager of a CDQ organization that authorizes persons to harvest halibut in the Area 4E or 4D CDQ fisheries must report to the Commission the total number and weight of undersized halibut taken and retained by such persons pursuant to section 7, paragraph (2). This report, which shall include data and methodology used to collect the data, must be received by the Commission prior to November 1 of the year in which such halibut were harvested.

    8. Fishing Periods

    (1) The fishing periods for each regulatory area apply where the catch limits specified in section 11 have not been taken.

    (2) Each fishing period in the Area 2A directed commercial fishery 2 shall begin at 0800 hours and terminate at 1800 hours local time on June 22, July 6, July 20, August 3, August 17, August 31, September 14, and September 28, 2016, unless the Commission specifies otherwise.

    2 The directed fishery is restricted to waters that are south of Point Chehalis, Washington (46°53′30″ N. latitude) under regulations promulgated by NMFS and published in the Federal Register.

    (3) Notwithstanding paragraph (7) of section 11, an incidental catch fishery 3 is authorized during the sablefish seasons in Area 2A in accordance with regulations promulgated by NMFS. This fishery will occur between 1200 hours local time on March 19 and 1200 hours local time on November 7.

    3 The incidental fishery during the directed, fixed gear sablefish season is restricted to waters that are north of Point Chehalis, Washington (46°53′30″ N. latitude) under regulations promulgated by NMFS at 50 CFR 300.63. Landing restrictions for halibut retention in the fixed gear sablefish fishery can be found at 50 CFR 660.231.

    (4) Notwithstanding paragraph (2), and paragraph (7) of section 11, an incidental catch fishery is authorized during salmon troll seasons in Area 2A in accordance with regulations promulgated by NMFS. This fishery will occur between 1200 hours local time on March 19 and 1200 hours local time on November 7.

    (5) The fishing period in Areas 2B, 2C, 3A, 3B, 4A, 4B, 4C, 4D, and 4E shall begin at 1200 hours local time on March 19 and terminate at 1200 hours local time on November 7, unless the Commission specifies otherwise.

    (6) All commercial fishing for halibut in Areas 2A, 2B, 2C, 3A, 3B, 4A, 4B, 4C, 4D, and 4E shall cease at 1200 hours local time on November 7.

    9. Closed Periods

    (1) No person shall engage in fishing for halibut in any regulatory area other than during the fishing periods set out in section 8 in respect of that area.

    (2) No person shall land or otherwise retain halibut caught outside a fishing period applicable to the regulatory area where the halibut was taken.

    (3) Subject to paragraphs (7), (8), (9), and (10) of section 19, these Regulations do not prohibit fishing for any species of fish other than halibut during the closed periods.

    (4) Notwithstanding paragraph (3), no person shall have halibut in his/her possession while fishing for any other species of fish during the closed periods.

    (5) No vessel shall retrieve any halibut fishing gear during a closed period if the vessel has any halibut on board.

    (6) A vessel that has no halibut on board may retrieve any halibut fishing gear during the closed period after the operator notifies an authorized officer or representative of the Commission prior to that retrieval.

    (7) After retrieval of halibut gear in accordance with paragraph (6), the vessel shall submit to a hold inspection at the discretion of the authorized officer or representative of the Commission.

    (8) No person shall retain any halibut caught on gear retrieved in accordance with paragraph (6).

    (9) No person shall possess halibut on board a vessel in a regulatory area during a closed period unless that vessel is in continuous transit to or within a port in which that halibut may be lawfully sold.

    10. Closed Area

    All waters in the Bering Sea north of 55°00′00″ N. latitude in Isanotski Strait that are enclosed by a line from Cape Sarichef Light (54°36′00″ N. latitude, 164°55′42″ W. longitude) to a point at 56°20′00″ N. latitude, 168°30′00″ W. longitude; thence to a point at 58°21′25″ N. latitude, 163°00′00″ W. longitude; thence to Strogonof Point (56°53′18″ N. latitude, 158°50′37″ W. longitude); and then along the northern coasts of the Alaska Peninsula and Unimak Island to the point of origin at Cape Sarichef Light are closed to halibut fishing and no person shall fish for halibut therein or have halibut in his/her possession while in those waters, except in the course of a continuous transit across those waters. All waters in Isanotski Strait between 55°00′00″ N. latitude and 54°49′00″ N. latitude are closed to halibut fishing.

    11. Catch Limits

    (1) The total allowable catch of halibut to be taken during the halibut fishing periods specified in section 8 shall be limited to the net weights expressed in pounds or metric tons shown in the following table:

    Regulatory area Catch limit—net weight Pounds Metric tons 2A: directed commercial, and incidental commercial catch during salmon troll fishery 227,487 103.2 2A: incidental commercial during sablefish fishery 49,686 22.4 2B 4 7,300,000 3,311.3 2C 5 3,924,000 1,779.9 3A 6 7,336,000 3,327.6 3B 2,710,000 1,229.2 4A 1,390,000 630.5 4B 1,140,000 517.1 4C 733,600 332.8 4D 733,600 332.8 4E 192,800 87.5

    (2) Notwithstanding paragraph (1), regulations pertaining to the division of the Area 2A catch limit between the directed commercial fishery and the incidental catch fishery as described in paragraph (4) of section 8 will be promulgated by NMFS and published in the Federal Register.

    4 Area 2B includes combined commercial and sport catch limits which will be allocated by DFO. See section 27 for sport fishing regulations.

    5 For the commercial fishery in Area 2C, in addition to the catch limit, the estimate of incidental mortality from the commercial fishery is 120,000 pounds. This amount is included in the combined commercial and guided sport sector catch limit set by IPHC and allocated by NMFS by a catch sharing plan.

    6 For the commercial fishery in Area 3A, in addition to the catch limit, the estimate of incidental mortality from the commercial fishery is 450,000 pounds. This amount is included in the combined commercial and guided sport sector catch limit set by IPHC and allocated by NMFS by a catch sharing plan.

    (3) The Commission shall determine and announce to the public the date on which the catch limit for Area 2A will be taken.

    (4) Notwithstanding paragraph (1), the commercial fishing in Area 2B will close only when all Individual Vessel Quotas (IVQs) assigned by DFO are taken, or November 7, whichever is earlier.

    (5) Notwithstanding paragraph (1), Areas 2C, 3A, 3B, 4A, 4B, 4C, 4D, and 4E will each close only when all Individual Fishing Quotas (IFQ) and all CDQs issued by NMFS have been taken, or November 7, whichever is earlier.

    (6) If the Commission determines that the catch limit specified for Area 2A in paragraph (1) would be exceeded in an unrestricted 10-hour fishing period as specified in paragraph (2) of section 8, the catch limit for that area shall be considered to have been taken unless fishing period limits are implemented.

    (7) When under paragraphs (2), (3), and (6) the Commission has announced a date on which the catch limit for Area 2A will be taken, no person shall fish for halibut in that area after that date for the rest of the year, unless the Commission has announced the reopening of that area for halibut fishing.

    (8) Notwithstanding paragraph (1), the total allowable catch of halibut that may be taken in the Area 4E directed commercial fishery is equal to the combined annual catch limits specified for the Area 4D and Area 4E CDQ fisheries. The annual Area 4D CDQ catch limit will decrease by the equivalent amount of halibut CDQ taken in Area 4E in excess of the annual Area 4E CDQ catch limit.

    (9) Notwithstanding paragraph (1), the total allowable catch of halibut that may be taken in the Area 4D directed commercial fishery is equal to the combined annual catch limits specified for Area 4C and Area 4D. The annual Area 4C catch limit will decrease by the equivalent amount of halibut taken in Area 4D in excess of the annual Area 4D catch limit.

    12. Fishing Period Limits

    (1) It shall be unlawful for any vessel to retain more halibut than authorized by that vessel's license in any fishing period for which the Commission has announced a fishing period limit.

    (2) The operator of any vessel that fishes for halibut during a fishing period when fishing period limits are in effect must, upon commencing an offload of halibut to a commercial fish processor, completely offload all halibut on board said vessel to that processor and ensure that all halibut is weighed and reported on State fish tickets.

    (3) The operator of any vessel that fishes for halibut during a fishing period when fishing period limits are in effect must, upon commencing an offload of halibut other than to a commercial fish processor, completely offload all halibut on board said vessel and ensure that all halibut are weighed and reported on State fish tickets.

    (4) The provisions of paragraph (3) are not intended to prevent retail over-the-side sales to individual purchasers so long as all the halibut on board is ultimately offloaded and reported.

    (5) When fishing period limits are in effect, a vessel's maximum retainable catch will be determined by the Commission based on:

    (a) The vessel's overall length in feet and associated length class;

    (b) the average performance of all vessels within that class; and

    (c) the remaining catch limit.

    (6) Length classes are shown in the following table:

    Overall length
  • (in feet)
  • Vessel class
    1-25 A 26-30 B 31-35 C 36-40 D 41-45 E 46-50 F 51-55 G 56+ H

    (7) Fishing period limits in Area 2A apply only to the directed halibut fishery referred to in paragraph (2) of section 8.

    13. Size Limits

    (1) No person shall take or possess any halibut that:

    (a) With the head on, is less than 32 inches (81.3 cm) as measured in a straight line, passing over the pectoral fin from the tip of the lower jaw with the mouth closed, to the extreme end of the middle of the tail, as illustrated in Figure 2; or

    (b) with the head removed, is less than 24 inches (61.0 cm) as measured from the base of the pectoral fin at its most anterior point to the extreme end of the middle of the tail, as illustrated in Figure 2.

    (2) No person on board a vessel fishing for, or tendering, halibut caught in Area 2A shall possess any halibut that has had its head removed.

    14. Careful Release of Halibut

    (1) All halibut that are caught and are not retained shall be immediately released outboard of the roller and returned to the sea with a minimum of injury by:

    (a) Hook straightening;

    (b) cutting the gangion near the hook; or

    (c) carefully removing the hook by twisting it from the halibut with a gaff.

    (2) Except that paragraph (1) shall not prohibit the possession of halibut on board a vessel that has been brought aboard to be measured to determine if the minimum size limit of the halibut is met and, if sublegal-sized, is promptly returned to the sea with a minimum of injury.

    15. Vessel Clearance in Area 4

    (1) The operator of any vessel that fishes for halibut in Areas 4A, 4B, 4C, or 4D must obtain a vessel clearance before fishing in any of these areas, and before the landing of any halibut caught in any of these areas, unless specifically exempted in paragraphs (10), (13), (14), (15), or (16).

    (2) An operator obtaining a vessel clearance required by paragraph (1) must obtain the clearance in person from the authorized clearance personnel and sign the IPHC form documenting that a clearance was obtained, except that when the clearance is obtained via VHF radio referred to in paragraphs (5), (8), and (9), the authorized clearance personnel must sign the IPHC form documenting that the clearance was obtained.

    (3) The vessel clearance required under paragraph (1) prior to fishing in Area 4A may be obtained only at Nazan Bay on Atka Island, Dutch Harbor or Akutan, Alaska, from an authorized officer of the United States, a representative of the Commission, or a designated fish processor.

    (4) The vessel clearance required under paragraph (1) prior to fishing in Area 4B may only be obtained at Nazan Bay on Atka Island or Adak, Alaska, from an authorized officer of the United States, a representative of the Commission, or a designated fish processor.

    (5) The vessel clearance required under paragraph (1) prior to fishing in Area 4C or 4D may be obtained only at St. Paul or St. George, Alaska, from an authorized officer of the United States, a representative of the Commission, or a designated fish processor by VHF radio and allowing the person contacted to confirm visually the identity of the vessel.

    (6) The vessel operator shall specify the specific regulatory area in which fishing will take place.

    (7) Before unloading any halibut caught in Area 4A, a vessel operator may obtain the clearance required under paragraph (1) only in Dutch Harbor or Akutan, Alaska, by contacting an authorized officer of the United States, a representative of the Commission, or a designated fish processor.

    (8) Before unloading any halibut caught in Area 4B, a vessel operator may obtain the clearance required under paragraph (1) only in Nazan Bay on Atka Island or Adak, by contacting an authorized officer of the United States, a representative of the Commission, or a designated fish processor by VHF radio or in person.

    (9) Before unloading any halibut caught in Area 4C and 4D, a vessel operator may obtain the clearance required under paragraph (1) only in St. Paul, St. George, Dutch Harbor, or Akutan, Alaska, either in person or by contacting an authorized officer of the United States, a representative of the Commission, or a designated fish processor. The clearances obtained in St. Paul or St. George, Alaska, can be obtained by VHF radio and allowing the person contacted to confirm visually the identity of the vessel.

    (10) Any vessel operator who complies with the requirements in section 18 for possessing halibut on board a vessel that was caught in more than one regulatory area in Area 4 is exempt from the clearance requirements of paragraph (1) of this section, provided that:

    (a) The operator of the vessel obtains a vessel clearance prior to fishing in Area 4 in either Dutch Harbor, Akutan, St. Paul, St. George, Adak, or Nazan Bay on Atka Island by contacting an authorized officer of the United States, a representative of the Commission, or a designated fish processor. The clearance obtained in St. Paul, St. George, Adak, or Nazan Bay on Atka Island can be obtained by VHF radio and allowing the person contacted to confirm visually the identity of the vessel. This clearance will list the areas in which the vessel will fish; and

    (b) before unloading any halibut from Area 4, the vessel operator obtains a vessel clearance from Dutch Harbor, Akutan, St. Paul, St. George, Adak, or Nazan Bay on Atka Island by contacting an authorized officer of the United States, a representative of the Commission, or a designated fish processor. The clearance obtained in St. Paul or St. George can be obtained by VHF radio and allowing the person contacted to confirm visually the identity of the vessel. The clearance obtained in Adak or Nazan Bay on Atka Island can be obtained by VHF radio.

    (11) Vessel clearances shall be obtained between 0600 and 1800 hours, local time.

    (12) No halibut shall be on board the vessel at the time of the clearances required prior to fishing in Area 4.

    (13) Any vessel that is used to fish for halibut only in Area 4A and lands its total annual halibut catch at a port within Area 4A is exempt from the clearance requirements of paragraph (1).

    (14) Any vessel that is used to fish for halibut only in Area 4B and lands its total annual halibut catch at a port within Area 4B is exempt from the clearance requirements of paragraph (1).

    (15) Any vessel that is used to fish for halibut only in Area 4C or 4D or 4E and lands its total annual halibut catch at a port within Area 4C, 4D, 4E, or the closed area defined in section 10, is exempt from the clearance requirements of paragraph (1).

    (16) Any vessel that carries a transmitting VMS transmitter while fishing for halibut in Area 4A, 4B, 4C, or 4D and until all halibut caught in any of these areas is landed, is exempt from the clearance requirements of paragraph (1) of this section, provided that:

    (a) The operator of the vessel complies with NMFS' vessel monitoring system regulations published at 50 CFR 679.28(f)(3), (4) and (5); and

    (b) the operator of the vessel notifies NOAA Fisheries Office for Law Enforcement at 800-304-4846 (select option 1 to speak to an Enforcement Data Clerk) between the hours of 0600 and 0000 (midnight) local time within 72 hours before fishing for halibut in Area 4A, 4B, 4C, or 4D and receives a VMS confirmation number.

    16. Logs

    (1) The operator of any U.S. vessel fishing for halibut that has an overall length of 26 feet (7.9 meters) or greater shall maintain an accurate log of halibut fishing operations. The operator of a vessel fishing in waters in and off Alaska must use one of the following logbooks: the Groundfish/IFQ Longline and Pot Gear Daily Fishing Logbook, in electronic or paper form, provided by NMFS; the Alaska hook-and-line logbook provided by Petersburg Vessel Owners Association or Alaska Longline Fisherman's Association; the Alaska Department of Fish and Game (ADF&G) longline-pot logbook; or the logbook provided by IPHC. The operator of a vessel fishing in Area 2A must use either the WDFW Voluntary Sablefish Logbook, Oregon Department of Fish and Wildlife (ODFW) Fixed Gear Logbook, or the logbook provided by IPHC.

    (2) The logbook referred to in paragraph (1) must include the following information:

    (a) The name of the vessel and the State (ADF&G, WDFW, ODFW, or CDFW) or Tribal ID number;

    (b) the date(s) upon which the fishing gear is set or retrieved;

    (c) the latitude and longitude coordinates or a direction and distance from a point of land for each set or day;

    (d) the number of skates deployed or retrieved, and number of skates lost; and

    (e) the total weight or number of halibut retained for each set or day.

    (3) The logbook referred to in paragraph (1) shall be:

    (a) Maintained on board the vessel;

    (b) updated not later than 24 hours after 0000 (midnight) local time for each day fished and prior to the offloading or sale of halibut taken during that fishing trip;

    (c) retained for a period of two years by the owner or operator of the vessel;

    (d) open to inspection by an authorized officer or any authorized representative of the Commission upon demand; and

    (e) kept on board the vessel when engaged in halibut fishing, during transits to port of landing, and until the offloading of all halibut is completed.

    (4) The log referred to in paragraph (1) does not apply to the incidental halibut fishery during the salmon troll season in Area 2A defined in paragraph (4) of section 8.

    (5) The operator of any Canadian vessel fishing for halibut shall maintain an accurate log recorded in the British Columbia Integrated Groundfish Fishing Log provided by DFO.

    (6) The logbook referred to in paragraph (5) must include the following information:

    (a) The name of the vessel and the DFO vessel registration number;

    (b) the date(s) upon which the fishing gear is set and retrieved;

    (c) the latitude and longitude coordinates for each set;

    (d) the number of skates deployed or retrieved, and number of skates lost; and

    (e) the total weight or number of halibut retained for each set.

    (7) The logbook referred to in paragraph (5) shall be:

    (a) Maintained on board the vessel;

    (b) retained for a period of two years by the owner or operator of the vessel;

    (c) open to inspection by an authorized officer or any authorized representative of the Commission upon demand;

    (d) kept on board the vessel when engaged in halibut fishing, during transits to port of landing, and until the offloading of all halibut is completed;

    (e) mailed to the DFO (white copy) within seven days of offloading; and

    (f) mailed to the Commission (yellow copy) within seven days of the final offload if not collected by a Commission employee.

    (8) No person shall make a false entry in a log referred to in this section.

    17. Receipt and Possession of Halibut

    (1) No person shall receive halibut caught in Area 2A from a United States vessel that does not have on board the license required by section 4.

    (2) No person shall possess on board a vessel a halibut other than whole or with gills and entrails removed, except that this paragraph shall not prohibit the possession on board a vessel of:

    (a) Halibut cheeks cut from halibut caught by persons authorized to process the halibut on board in accordance with NMFS regulations published at 50 CFR part 679;

    (b) fillets from halibut offloaded in accordance with section 17 that are possessed on board the harvesting vessel in the port of landing up to 1800 hours local time on the calendar day following the offload 7 ; and

    7 DFO has more restrictive regulations; therefore, section 17 paragraph (2)(b) does not apply to fish caught in Area 2B or landed in British Columbia.

    (c) halibut with their heads removed in accordance with section 13.

    (3) No person shall offload halibut from a vessel unless the gills and entrails have been removed prior to offloading.

    (4) It shall be the responsibility of a vessel operator who lands halibut to continuously and completely offload at a single offload site all halibut on board the vessel.

    (5) A registered buyer (as that term is defined in regulations promulgated by NMFS and codified at 50 CFR part 679) who receives halibut harvested in IFQ and CDQ fisheries in Areas 2C, 3A, 3B, 4A, 4B, 4C, 4D, and 4E, directly from the vessel operator that harvested such halibut must weigh all the halibut received and record the following information on Federal catch reports: Date of offload; name of vessel; vessel number (State, Tribal or Federal, not IPHC vessel number); scale weight obtained at the time of offloading, including the scale weight (in pounds) of halibut purchased by the registered buyer, the scale weight (in pounds) of halibut offloaded in excess of the IFQ or CDQ, the scale weight of halibut (in pounds) retained for personal use or for future sale, and the scale weight (in pounds) of halibut discarded as unfit for human consumption.

    (6) The first recipient, commercial fish processor, or buyer in the United States who purchases or receives halibut directly from the vessel operator that harvested such halibut must weigh and record all halibut received and record the following information on State fish tickets: The date of offload; vessel number (State or Federal, not IPHC vessel number) or Tribal ID number; total weight obtained at the time of offload including the weight (in pounds) of halibut purchased; the weight (in pounds) of halibut offloaded in excess of the IFQ, CDQ, or fishing period limits; the weight of halibut (in pounds) retained for personal use or for future sale; and the weight (in pounds) of halibut discarded as unfit for human consumption.

    (7) The individual completing the State fish tickets for the Area 2A fisheries as referred to in paragraph (6) must additionally record whether the halibut weight is of head-on or head-off fish.

    (8) For halibut landings made in Alaska, the requirements as listed in paragraphs (5) and (6) can be met by recording the information in the Interagency Electronic Reporting Systems, eLandings in accordance with NMFS regulation published at 50 CFR part 679.

    (9) The master or operator of a Canadian vessel that was engaged in halibut fishing must weigh and record all halibut on board said vessel at the time offloading commences and record on Provincial fish tickets or Federal catch reports the date; locality; name of vessel; the name(s) of the person(s) from whom the halibut was purchased; and the scale weight obtained at the time of offloading of all halibut on board the vessel including the pounds purchased, pounds in excess of IVQs, pounds retained for personal use, and pounds discarded as unfit for human consumption.

    (10) No person shall make a false entry on a State or Provincial fish ticket or a Federal catch or landing report referred to in paragraphs (5), (6), and (9) of section 17.

    (11) A copy of the fish tickets or catch reports referred to in paragraphs (5), (6), and (9) shall be:

    (a) Retained by the person making them for a period of three years from the date the fish tickets or catch reports are made; and

    (b) open to inspection by an authorized officer or any authorized representative of the Commission.

    (12) No person shall possess any halibut taken or retained in contravention of these Regulations.

    (13) When halibut are landed to other than a commercial fish processor, the records required by paragraph (6) shall be maintained by the operator of the vessel from which that halibut was caught, in compliance with paragraph (11).

    (14) No person shall tag halibut unless the tagging is authorized by IPHC permit or by a Federal or State agency.

    18. Fishing Multiple Regulatory Areas

    (1) Except as provided in this section, no person shall possess at the same time on board a vessel halibut caught in more than one regulatory area.

    (2) Halibut caught in more than one of the Regulatory Areas 2C, 3A, or 3B may be possessed on board a vessel at the same time, provided the operator of the vessel:

    (a) Has a NMFS-certified observer on board when required by NMFS regulations 8 published at 50 CFR 679.7(f)(4); and

    8 Without an observer, a vessel cannot have on board more halibut than the IFQ for the area that is being fished, even if some of the catch occurred earlier in a different area.

    (b) can identify the regulatory area in which each halibut on board was caught by separating halibut from different areas in the hold, tagging halibut, or by other means.

    (3) Halibut caught in more than one of the Regulatory Areas 4A, 4B, 4C, or 4D may be possessed on board a vessel at the same time, provided the operator of the vessel:

    (a) Has a NMFS-certified observer on board the vessel as required by NMFS regulations published at 50 CFR 679.7(f)(4); or has an operational VMS on board actively transmitting in all regulatory areas fished and does not possess at any time more halibut on board the vessel than the IFQ permit holders on board the vessel have cumulatively available for any single Area 4 regulatory area fished; and

    (b) can identify the regulatory area in which each halibut on board was caught by separating halibut from different areas in the hold, tagging halibut, or by other means.

    (4) If halibut from Area 4 are on board the vessel, the vessel can have halibut caught in Regulatory Areas 2C, 3A, and 3B on board if in compliance with paragraph (2).

    19. Fishing Gear

    (1) No person shall fish for halibut using any gear other than hook and line gear,

    (a) except that vessels licensed to catch sablefish in Area 2B using sablefish trap gear as defined in the Condition of Sablefish Licence can retain halibut caught as bycatch under regulations promulgated by DFO; or

    (b) except that a person may retain halibut taken with longline pot gear in the sablefish IFQ fishery if such retention is authorized by NMFS regulations published at 50 CFR part 679.

    (2) No person shall possess halibut taken with any gear other than hook and line gear,

    (a) except that vessels licensed to catch sablefish in Area 2B using sablefish trap gear as defined by the Condition of Sablefish Licence can retain halibut caught as bycatch under regulations promulgated by DFO; or

    (b) except that a person may possess halibut taken with longline pot gear in the sablefish IFQ fishery if such possession is authorized by NMFS regulations published at 50 CFR part 679.

    (3) No person shall possess halibut while on board a vessel carrying any trawl nets or fishing pots capable of catching halibut,

    (a) except that in Areas 2C, 3A, 3B, 4A, 4B, 4C, 4D, or 4E, halibut heads, skin, entrails, bones or fins for use as bait may be possessed on board a vessel carrying pots capable of catching halibut, provided that a receipt documenting purchase or transfer of these halibut parts is on board the vessel; or

    (b) except that in Areas 2C, 3A, 3B, 4A, 4B, 4C, 4D, or 4E, halibut may be possessed on board a vessel carrying pots capable of catching halibut, provided such possession is authorized by NMFS regulations published at 50 CFR part 679 as referenced in paragraphs (1) and (2) of this section; or

    (c) except that in Area 2B, halibut may be possessed on board a vessel carrying sablefish trap gear, provided such possession is authorized by the Condition of Licence regulations promulgated by DFO as referenced in paragraphs (1) and (2) of this section.

    (4) All setline or skate marker buoys carried on board or used by any United States vessel used for halibut fishing shall be marked with one of the following:

    (a) The vessel's State license number; or

    (b) the vessel's registration number.

    (5) The markings specified in paragraph (4) shall be in characters at least four inches in height and one-half inch in width in a contrasting color visible above the water and shall be maintained in legible condition.

    (6) All setline or skate marker buoys carried on board or used by a Canadian vessel used for halibut fishing shall be:

    (a) Floating and visible on the surface of the water; and

    (b) legibly marked with the identification plate number of the vessel engaged in commercial fishing from which that setline is being operated.

    (7) No person on board a vessel used to fish for any species of fish anywhere in Area 2A during the 72-hour period immediately before the fishing period for the directed commercial fishery shall catch or possess halibut anywhere in those waters during that halibut fishing period unless, prior to the start of the halibut fishing period, the vessel has removed its gear from the water and has either:

    (a) Made a landing and completely offloaded its catch of other fish; or

    (b) submitted to a hold inspection by an authorized officer.

    (8) No vessel used to fish for any species of fish anywhere in Area 2A during the 72-hour period immediately before the fishing period for the directed commercial fishery may be used to catch or possess halibut anywhere in those waters during that halibut fishing period unless, prior to the start of the halibut fishing period, the vessel has removed its gear from the water and has either:

    (a) Made a landing and completely offloaded its catch of other fish; or

    (b) submitted to a hold inspection by an authorized officer.

    (9) No person on board a vessel from which setline gear was used to fish for any species of fish anywhere in Areas 2B, 2C, 3A, 3B, 4A, 4B, 4C, 4D, or 4E during the 72-hour period immediately before the opening of the halibut fishing season shall catch or possess halibut anywhere in those areas until the vessel has removed all of its setline gear from the water and has either:

    (a) Made a landing and completely offloaded its entire catch of other fish; or

    (b) submitted to a hold inspection by an authorized officer.

    (10) No vessel from which setline gear was used to fish for any species of fish anywhere in Areas 2B, 2C, 3A, 3B, 4A, 4B, 4C, 4D, or 4E during the 72-hour period immediately before the opening of the halibut fishing season may be used to catch or possess halibut anywhere in those areas until the vessel has removed all of its setline gear from the water and has either:

    (a) Made a landing and completely offloaded its entire catch of other fish; or

    (b) submitted to a hold inspection by an authorized officer.

    (11) Notwithstanding any other provision in these Regulations, a person may retain, possess and dispose of halibut taken with trawl gear only as authorized by Prohibited Species Donation regulations of NMFS.

    20. Supervision of Unloading and Weighing

    The unloading and weighing of halibut may be subject to the supervision of authorized officers to assure the fulfillment of the provisions of these Regulations.

    21. Retention of Tagged Halibut

    (1) Nothing contained in these Regulations prohibits any vessel at any time from retaining and landing a halibut that bears a Commission external tag at the time of capture, if the halibut with the tag still attached is reported at the time of landing and made available for examination by a representative of the Commission or by an authorized officer.

    (2) After examination and removal of the tag by a representative of the Commission or an authorized officer, the halibut:

    (a) May be retained for personal use; or

    (b) may be sold only if the halibut is caught during commercial halibut fishing and complies with the other commercial fishing provisions of these Regulations.

    (3) Any halibut that bears a Commission external tag must count against commercial IVQs, CDQs, or IFQs, unless otherwise exempted by State, Provincial, or Federal regulations.

    (4) Any halibut that bears a Commission external tag will not count against sport daily bag limits or possession limits, may be retained outside of sport fishing seasons, and are not subject to size limits in these regulations.

    (5) Any halibut that bears a Commission external tag will not count against daily bag limits, possession limits, or catch limits in the fisheries described in section 22, paragraph (7), section 23, or section 24.

    22. Fishing by United States Treaty Indian Tribes

    (1) Halibut fishing in Subarea 2A-1 by members of United States treaty Indian tribes located in the State of Washington shall be regulated under regulations promulgated by NMFS and published in the Federal Register.

    (2) Subarea 2A-1 includes all waters off the coast of Washington that are north of the Quinault River, WA, (47°21.00' N. lat.) and east of 125°44.00' W. long; all waters off the coast of Washington that are between the Quinault River, WA (47°21.00' N. lat.) and Point Chehalis, WA, (46°53.30′ N. lat.) and east of 125°08.50′ W. long.; and all inland marine waters of Washington.

    (3) Section 13 (size limits), section 14 (careful release of halibut), section 16 (logs), section 17 (receipt and possession of halibut) and section 19 (fishing gear), except paragraphs (7) and (8) of section 19, apply to commercial fishing for halibut in Subarea 2A-1 by the treaty Indian tribes.

    (4) Regulations in paragraph (3) of this section that apply to State fish tickets apply to Tribal tickets that are authorized by WDFW.

    (5) Section 4 (Licensing Vessels for Area 2A) does not apply to commercial fishing for halibut in Subarea 2A-1 by treaty Indian tribes.

    (6) Commercial fishing for halibut in Subarea 2A-1 is permitted with hook and line gear from March 19 through November 7, or until 365,100 pounds (165.6 metric tons) net weight is taken, whichever occurs first.

    (7) Ceremonial and subsistence fishing for halibut in Subarea 2A-1 is permitted with hook and line gear from January 1 through December 31, and is estimated to take 33,900 pounds (15.4 metric tons) net weight.

    23. Customary and Traditional Fishing in Alaska

    (1) Customary and traditional fishing for halibut in Regulatory Areas 2C, 3A, 3B, 4A, 4B, 4C, 4D, and 4E shall be governed pursuant to regulations promulgated by NMFS and published in 50 CFR part 300.

    (2) Customary and traditional fishing is authorized from January 1 through December 31.

    24. Aboriginal Groups Fishing for Food, Social and Ceremonial Purposes in British Columbia

    (1) Fishing for halibut for food, social and ceremonial purposes by Aboriginal groups in Regulatory Area 2B shall be governed by the Fisheries Act of Canada and regulations as amended from time to time.

    25. Sport Fishing for Halibut—General

    (1) No person shall engage in sport fishing for halibut using gear other than a single line with no more than two hooks attached; or a spear.

    (2) Any minimum overall size limit promulgated under IPHC or NMFS regulations shall be measured in a straight line passing over the pectoral fin from the tip of the lower jaw with the mouth closed, to the extreme end of the middle of the tail.

    (3) Any halibut brought aboard a vessel and not immediately returned to the sea with a minimum of injury will be included in the daily bag limit of the person catching the halibut.

    (4) No person may possess halibut on a vessel while fishing in a closed area.

    (5) No halibut caught by sport fishing shall be offered for sale, sold, traded, or bartered.

    (6) No halibut caught in sport fishing shall be possessed on board a vessel when other fish or shellfish aboard said vessel are destined for commercial use, sale, trade, or barter.

    (7) The operator of a charter vessel shall be liable for any violations of these Regulations committed by an angler on board said vessel. In Alaska, the charter vessel guide, as defined in 50 CFR 300.61 and referred to in 50 CFR 300.65, 300.66, and 300.67, shall be liable for any violation of these Regulations committed by an angler on board a charter vessel.

    26. Sport Fishing for Halibut—Area 2A

    (1) The total allowable catch of halibut shall be limited to:

    (a) 214,110 Pounds (97.1 metric tons) net weight in waters off Washington;

    (b) 220,077 pounds (99.8 metric tons) net weight in waters off Oregon; and

    (c) 29,640 pounds (13.4 metric tons) net weight in waters off California.

    (2) The Commission shall determine and announce closing dates to the public for any area in which the catch limits promulgated by NMFS are estimated to have been taken.

    (3) When the Commission has determined that a subquota under paragraph (8) of this section is estimated to have been taken, and has announced a date on which the season will close, no person shall sport fish for halibut in that area after that date for the rest of the year, unless a reopening of that area for sport halibut fishing is scheduled in accordance with the Catch Sharing Plan for Area 2A, or announced by the Commission.

    (4) In California, Oregon, or Washington, no person shall fillet, mutilate, or otherwise disfigure a halibut in any manner that prevents the determination of minimum size or the number of fish caught, possessed, or landed.

    (5) The possession limit on a vessel for halibut in the waters off the coast of Washington is the same as the daily bag limit. The possession limit on land in Washington for halibut caught in U.S. waters off the coast of Washington is two halibut.

    (6) The possession limit on a vessel for halibut caught in the waters off the coast of Oregon is the same as the daily bag limit. The possession limit for halibut on land in Oregon is three daily bag limits.

    (7) The possession limit on a vessel for halibut caught in the waters off the coast of California is one halibut. The possession limit for halibut on land in California is one halibut.

    (8) [The Area 2A CSP will be published under a separate final rule that, once published, will be available on the NOAA Fisheries West Coast Region's Web site at http://www.westcoast.fisheries.noaa.gov/fisheries/management/pacific_halibut_management.html, and under FDMS Docket Number NOAA-NMFS-2015-0166 at www.regulations.gov.]

    27. Sport Fishing for Halibut—Area 2B

    (1) In all waters off British Columbia: 9 10

    9 DFO could implement more restrictive regulations for the sport fishery; therefore, anglers are advised to check the current Federal or Provincial regulations prior to fishing.

    10 For regulations on the experimental recreational fishery implemented by DFO, check the current Federal or Provincial regulations.

    (a) The sport fishing season will open on February 1 unless more restrictive regulations are in place; 9

    (b) the sport fishing season will close when the sport catch limit allocated by DFO, is taken, or December 31, whichever is earlier; and

    (c) the daily bag limit is two halibut of any size per day per person.

    (2) In British Columbia, no person shall fillet, mutilate, or otherwise disfigure a halibut in any manner that prevents the determination of minimum size or the number of fish caught, possessed, or landed.

    (3) The possession limit for halibut in the waters off the coast of British Columbia is three halibut.9 10

    28. Sport Fishing for Halibut—Areas 2C, 3A, 3B, 4A, 4B, 4C, 4D, 4E

    (1) In Convention waters in and off Alaska: 11 12

    11 NMFS could implement more restrictive regulations for the sport fishery or components of it; therefore, anglers are advised to check the current Federal or State regulations prior to fishing.

    12 Charter vessels are prohibited from harvesting halibut in Areas 2C and 3A during one charter vessel fishing trip under regulations promulgated by NMFS at 50 CFR 300.66.

    (a) The sport fishing season is from February 1 to December 31.

    (b) The daily bag limit is two halibut of any size per day per person unless a more restrictive bag limit applies in Commission regulations or Federal regulations at 50 CFR 300.65.

    (c) No person may possess more than two daily bag limits.

    (d) No person shall possess on board a vessel, including charter vessels and pleasure craft used for fishing, halibut that have been filleted, mutilated, or otherwise disfigured in any manner, except that each halibut may be cut into no more than 2 ventral pieces, 2 dorsal pieces, and 2 cheek pieces, with skin on all pieces.13

    13 Additional regulations governing use of GAF are at 50 CFR 300.65.

    (e) Halibut in excess of the possession limit in paragraph (1)(c) of this section may be possessed on a vessel that does not contain sport fishing gear, fishing rods, hand lines, or gaffs.

    (f) All halibut harvested on a charter vessel fishing trip in Area 2C or Area 3A must be retained on board the charter vessel on which the halibut was caught until the end of the charter vessel fishing trip as defined at 50 CFR 300.61.

    (g) Guided angler fish (GAF), as described at 50 CFR 300.65, may be used to allow a charter vessel angler to harvest additional halibut up to the limits in place for unguided anglers, and are exempt from the requirements in paragraphs 2 and 3 of this section.13

    (2) For guided sport fishing (as referred to in 50 CFR 300.65) in Regulatory Area 2C:

    (a) The total catch allocation, including an estimate of incidental mortality (wastage), is 906,000 pounds (411.0 metric tons).

    (b) No person on board a charter vessel (as referred to in 50 CFR 300.65) shall catch and retain more than one halibut per calendar day.

    (c) No person on board a charter vessel (as referred to in 50 CFR 300.65) shall catch and retain any halibut that with head on is greater than 43 inches (109 cm) and less than 80 inches (203 cm) as measured in a straight line, passing over the pectoral fin from the tip of the lower jaw with mouth closed, to the extreme end of the middle of the tail, as illustrated in Figure 3.

    (3) For guided sport fishing (as referred to in 50 CFR 300.65) in Regulatory Area 3A:

    (a) The total catch allocation, including an estimate of incidental mortality (wastage), is 1,814,000 pounds (822.8 metric tons).

    (b) No person on board a charter vessel (as referred to in 50 CFR 300.65) shall catch and retain more than two halibut per calendar day.

    (c) At least one of the retained halibut must have a head-on length of no more than 28 inches (71 cm) as measured in a straight line, passing over the pectoral fin from the tip of the lower jaw with mouth closed, to the extreme end of the middle of the tail, as illustrated in Figure 4. If a person sport fishing on a charter vessel in Area 3A retains only one halibut in a calendar day, that halibut may be of any length.

    (d) A charter halibut permit may only be used for one charter vessel fishing trip in which halibut are caught and retained per calendar day. A charter vessel fishing trip is defined at 50 CFR 300.61 as the time period between the first deployment of fishing gear into the water by a charter vessel angler (as defined at 50 CFR 300.61) and the offloading of one or more charter vessel anglers or any halibut from that vessel. For purposes of this trip limit, a charter vessel fishing trip ends at 11:59 p.m. (Alaska local time) on the same calendar day that the fishing trip began, or when any anglers or halibut are offloaded, whichever comes first.13

    (e) A charter vessel on which one or more anglers catch and retain halibut may only make one charter vessel fishing trip per calendar day. A charter vessel fishing trip is defined at 50 CFR 300.61 as the time period between the first deployment of fishing gear into the water by a charter vessel angler (as defined at 50 CFR 300.61) and the offloading of one or more charter vessel anglers or any halibut from that vessel. For purposes of this trip limit, a charter vessel fishing trip ends at 11:59 p.m. (Alaska local time) on the same calendar day that the fishing trip began, or when any anglers or halibut are offloaded, whichever comes first.13

    (f) No person on board a charter vessel may catch and retain halibut on Wednesdays.13

    (g) Charter vessel anglers may catch and retain no more than four (4) halibut per calendar year on board charter vessels in Area 3A. Halibut that are retained as GAF, retained while on a charter vessel fishing trip in other Commission regulatory areas, or retained while fishing without the services of a guide do not accrue toward the 4-fish annual limit. For purposes of enforcing the annual limit, each angler must:

    (1) Maintain a nontransferable harvest record in the angler's possession if retaining a halibut for which an annual limit has been established. Such harvest record must be maintained either on the back of the angler's State of Alaska sport fishing license or on a Sport Fishing Harvest Record Card obtained, without charge, from ADF&G offices, the ADF&G Web site, or fishing license vendors; and

    (2) immediately upon retaining a halibut for which an annual limit has been established, record the date, location (Area 3A), and species of the catch (halibut), in ink, on the harvest record; and

    (3) record the information required by paragraph 3(g)(2) on any duplicate or additional sport fishing license issued to the angler or any duplicate or additional Sport Fishing Harvest Record Card obtained by the angler for all halibut previously retained during that year that were subject to the harvest record reporting requirements of this section; and

    (4) carry the harvest record on his or her person while fishing for halibut.

    29. Previous Regulations Superseded

    These Regulations shall supersede all previous regulations of the Commission, and these Regulations shall be effective each succeeding year until superseded.

    ER16MR16.000 ER16MR16.001 Classification IPHC Regulations

    These IPHC annual management measures are a product of an agreement between the United States and Canada and are published in the Federal Register to provide notice of their effectiveness and content. Pursuant to section 4 of the Northern Pacific Halibut Act of 1982, 16 U.S.C. 773c, the Secretary of State, with the concurrence of the Secretary of Commerce, may “accept or reject” but not modify these recommendations of the IPHC. The notice-and-comment and delay-in-effectiveness date provisions of the Administrative Procedure Act (APA), 5 U.S.C. 553(c) and (d), are inapplicable to IPHC management measures because this regulation involves a foreign affairs function of the United States, 5 U.S.C. 553(a)(1). The additional time necessary to comply with the notice-and-comment and delay-in-effectiveness requirements of the APA would disrupt coordinated international conservation and management of the halibut fishery pursuant to the Convention. Furthermore, no other law requires prior notice and public comment for this rule. Because prior notice and an opportunity for public comment are not required to be provided for these portions of this rule by 5 U.S.C. 553, or any other law, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., are not applicable. Accordingly, no Regulatory Flexibility Analysis is required for this portion of the rule and none has been prepared.

    Authority:

    16 U.S.C. 773 et seq.

    Dated: March 11, 2016. Samuel D. Rauch III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.
    [FR Doc. 2016-05948 Filed 3-14-16; 4:15 pm] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 679 [Docket No. 140918791-4999-02] RIN 0648-XE504 Fisheries of the Exclusive Economic Zone Off Alaska; Pollock in Statistical Area 630 in the Gulf of Alaska AGENCY:

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

    ACTION:

    Temporary rule; closure.

    SUMMARY:

    NMFS is prohibiting directed fishing for pollock in Statistical Area 630 in the Gulf of Alaska (GOA). This action is necessary to prevent exceeding the B season allowance of the 2016 total allowable catch of pollock for Statistical Area 630 in the GOA.

    DATES:

    Effective 1200 hrs, Alaska local time (A.l.t.), March 13, 2016, through 1200 hrs, A.l.t., May 31, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Josh Keaton, 907-586-7228.

    SUPPLEMENTARY INFORMATION:

    NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.

    The B seasonal apportionment of pollock TAC in Statistical Area 630 of the GOA is 5,083 mt as established by the final 2015 and 2016 harvest specifications for groundfish of the GOA (80 FR 10250, February 25, 2015) and inseason adjustment (81 FR 188, January 5, 2016). In accordance with § 679.20(a)(5)(iv)(B), the Regional Administrator hereby increases the B seasonal apportionment for Statistical Area 630 by 1,017 mt to account for the underharvest of the TAC in Statistical Areas 620 and 630 in the A season. This increase is in proportion to the estimated pollock biomass and is not greater than 20 percent of the B seasonal apportionment of the TAC in Statistical Area 630. Therefore, the revised B seasonal apportionment of pollock TAC in Statistical Area 630 is 6,100 mt (5,083 mt plus 1,017 mt).

    In accordance with § 679.20(d)(1)(i), the Regional Administrator has determined that the B season allowance of the 2016 TAC of pollock in Statistical Area 630 of the GOA will soon be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 5,600 mt and is setting aside the remaining 500 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance has been reached. Consequently, NMFS is prohibiting directed fishing for pollock in Statistical Area 630 of the GOA.

    After the effective date of this closure the maximum retainable amounts at § 679.20(e) and (f) apply at any time during a trip.

    Classification

    This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the closure of directed fishing for pollock in Statistical Area 630 of the GOA. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of March 10, 2016.

    The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.

    This action is required by § 679.20 and is exempt from review under Executive Order 12866.

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: March 11, 2016. Emily H. Menashes, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2016-05923 Filed 3-11-16; 4:15 pm] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 679 [Docket No. 140918791-4999-02] RIN 0648-XE505 Fisheries of the Exclusive Economic Zone Off Alaska; Pacific Cod by Trawl Catcher Vessels in the Western Regulatory Area of the Gulf of Alaska AGENCY:

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

    ACTION:

    Temporary rule; closure.

    SUMMARY:

    NMFS is prohibiting directed fishing for Pacific cod by catcher vessels using trawl gear in the Western Regulatory Area of the Gulf of Alaska (GOA). This action is necessary to prevent exceeding the A season allowance of the 2016 Pacific cod total allowable catch apportioned to trawl catcher vessels in the Western Regulatory Area of the GOA.

    DATES:

    Effective 1200 hours, Alaska local time (A.l.t.), March 12, 2016, through 1200 hours, A.l.t., June 10, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Josh Keaton, 907-586-7228.

    SUPPLEMENTARY INFORMATION:

    NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679. Regulations governing sideboard protections for GOA groundfish fisheries appear at subpart B of 50 CFR part 680.

    The A season allowance of the 2016 Pacific cod total allowable catch (TAC) apportioned to trawl catcher vessels in the Western Regulatory Area of the GOA is 7,579 metric tons (mt), as established by the final 2015 and 2016 harvest specifications for groundfish of the GOA (80 FR 10250, February 25, 2015) and inseason adjustment (81 FR 188, January 5, 2016).

    In accordance with § 679.20(d)(1)(i), the Administrator, Alaska Region, NMFS (Regional Administrator) has determined that the A season allowance of the 2016 Pacific cod TAC apportioned to trawl catcher vessels in the Western Regulatory Area of the GOA will soon be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 7,279 mt and is setting aside the remaining 300 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance has been reached. Consequently, NMFS is prohibiting directed fishing for Pacific cod by catcher vessels using trawl gear in the Western Regulatory Area of the GOA. After the effective date of this closure the maximum retainable amounts at § 679.20(e) and (f) apply at any time during a trip.

    Classification

    This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the directed fishing closure of Pacific cod by catcher vessels using trawl gear in the Western Regulatory Area of the GOA. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of March 10, 2016.

    The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.

    This action is required by § 679.20 and is exempt from review under Executive Order 12866.

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: March 11, 2016. Emily H. Menashes, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2016-05929 Filed 3-11-16; 4:15 pm] BILLING CODE 3510-22-P SGPO Galley End:
    81 51 Wednesday, March 16, 2016 Proposed Rules DEPARTMENT OF AGRICULTURE Agricultural Marketing Service 7 CFR Part 915 [Doc. No. AMS-SC-15-0083; SC16-915-2 PR] Avocados Grown in South Florida; Increased Assessment Rate AGENCY:

    Agricultural Marketing Service, USDA.

    ACTION:

    Proposed rule.

    SUMMARY:

    This proposed rule would implement a recommendation from the Avocado Administrative Committee (Committee) to increase the assessment rate established for the 2016-17 and subsequent fiscal periods from $0.30 to $0.35 per 55-pound bushel container of Florida avocados handled under the marketing order (order). The Committee locally administers the order and is comprised of growers and handlers of avocados operating within the area of production. Assessments upon Florida avocado handlers are used by the Committee to fund reasonable and necessary expenses of the program. The fiscal period begins April 1 and ends March 31. The assessment rate would remain in effect indefinitely unless modified, suspended, or terminated.

    DATES:

    Comments must be received by April 15, 2016.

    ADDRESSES:

    Interested persons are invited to submit written comments concerning this proposed rule. Comments must be sent to the Docket Clerk, Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA, 1400 Independence Avenue SW., STOP 0237, Washington, DC 20250-0237; Fax: (202) 720-8938; or Internet: http://www.regulations.gov. Comments should reference the document number and the date and page number of this issue of the Federal Register and will be available for public inspection in the Office of the Docket Clerk during regular business hours, or can be viewed at: http://www.regulations.gov. All comments submitted in response to this proposed rule will be included in the record and will be made available to the public. 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.

    FOR FURTHER INFORMATION CONTACT:

    Doris Jamieson, Marketing Specialist, or Christian D. Nissen, Regional Director, Southeast Marketing Field Office, Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA; Telephone: (863) 324-3375, Fax: (863) 291-8614, or Email: [email protected] or [email protected]

    Small businesses may request information on complying with this regulation 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:

    This proposed rule is issued under Marketing Order No. 915, as amended (7 CFR part 915), regulating the handling of avocados grown in South Florida, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”

    The Department of Agriculture (USDA) is issuing this proposed rule in conformance with Executive Orders 12866, 13563, and 13175.

    This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. Under the marketing order now in effect, Florida avocado handlers are subject to assessments. Funds to administer the order are derived from such assessments. It is intended that the assessment rate as proposed herein would be applicable to all assessable Florida avocados beginning on April 1, 2016, and continue until amended, suspended, or terminated.

    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 USDA 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 therefrom. Such handler is afforded the opportunity for a hearing on the petition. After the hearing, 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 USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.

    This proposed rule would increase the assessment rate established for the Committee for the 2016-17 and subsequent fiscal periods from $0.30 to $0.35 per 55-pound bushel container of avocados.

    The Florida avocado marketing order provides authority for the Committee, with the approval of USDA, to formulate an annual budget of expenses and collect assessments from handlers to administer the program. The members of the Committee are producers and handlers of Florida avocados. They are familiar with the Committee's needs and with the costs for goods and services in their local area, and are thus in a position to formulate an appropriate budget and assessment rate. The assessment rate is formulated and discussed in a public meeting. Thus, all directly affected persons have an opportunity to participate and provide input.

    For the 2013-14 and subsequent fiscal periods, the Committee recommended, and USDA approved, an assessment rate that would continue in effect from fiscal period to fiscal period unless modified, suspended, or terminated by USDA upon recommendation and information submitted by the Committee or other information available to USDA.

    The Committee met on December 9, 2015, and recommended 2016-17 expenditures of $302,553 and an assessment rate of $0.35 per 55-pound bushel container of avocados. In comparison, last year's budgeted expenditures were $602,553. The assessment rate of $0.35 is $0.05 higher than the rate currently in effect. During the 2015-16 season, the Committee used its authorized reserves to fund several large research projects to address the Laurel Wilt fungus, which can infect and kill avocado trees. This substantially reduced the funds in the Committee's reserves to $214,733. Further, at the current assessment rate, assessment income would equal only $300,000, an amount insufficient to cover the Committee's anticipated expenditures of $302,553. By increasing the assessment rate by $0.05, assessment income would be approximately $350,000. This amount should provide sufficient funds to meet 2016-2017 anticipated expenses and add money back into the Committee's authorized reserves.

    The major expenditures recommended by the Committee for the 2016-17 year include $119,483 for salaries, $51,500 for employee benefits, and $25,500 for insurance and bonds. Budgeted expenses for these items in 2015-16 were $119,483, $51,500, and $25,500, respectively.

    The assessment rate recommended by the Committee was derived by reviewing anticipated expenses, expected shipments of Florida avocados, and the level of funds in reserve. As mentioned earlier, avocado shipments for the year are estimated at one million 55-pound bushel containers which should provide $350,000 in assessment income. Income derived from handler assessments at the proposed rate, along with interest income, would be adequate to cover budgeted expenses. Funds in the reserve (currently $214,733) would be kept within the maximum permitted by the order (approximately three fiscal periods' expenses as authorized in § 915.42).

    The proposed assessment rate would continue in effect indefinitely unless modified, suspended, or terminated by USDA upon recommendation and information submitted by the Committee or other available information.

    Although this assessment rate would be in effect for an indefinite period, the Committee would continue to meet prior to or during each fiscal period to recommend a budget of expenses and consider recommendations for modification of the assessment rate. The dates and times of Committee meetings are available from the Committee or USDA. Committee meetings are open to the public and interested persons may express their views at these meetings. USDA would evaluate Committee recommendations and other available information to determine whether modification of the assessment rate is needed. Further rulemaking would be undertaken as necessary. The Committee's 2016-17 budget and those for subsequent fiscal periods would be reviewed and, as appropriate, approved by USDA.

    Initial Regulatory Flexibility Analysis

    Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), the Agricultural Marketing Service (AMS) has considered the economic impact of this proposed rule on small entities. Accordingly, AMS has prepared this initial regulatory flexibility analysis.

    The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and the rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf.

    There are approximately 400 producers of Florida avocados in the production area and approximately 25 handlers subject to regulation under the marketing order. Small agricultural producers are defined by the Small Business Administration (SBA) as those having annual receipts less than $750,000, and small agricultural service firms are defined as those whose annual receipts are less than $7,500,000 (13 CFR 121.201).

    According to the National Agricultural Statistical Service (NASS), the average grower price paid for Florida avocados during the 2014-15 season was approximately $18.00 per 55-pound bushel container and total shipments were slightly higher than 1.2 million 55-pound bushels. Based on this information, the majority of avocado producers would have annual receipts less than $750,000. In addition, based on Committee information, the majority of Florida avocado handlers could be considered small business under SBA's definition. Thus, the majority of Florida avocado producers and handlers may be classified as small entities.

    This proposal would increase the assessment rate established for the Committee and collected from handlers for the 2016-17 and subsequent fiscal periods from $0.30 to $0.35 per 55-pound bushel container of avocados. The Committee recommended 2016-17 expenditures of $302,553 and an assessment rate of $0.35 per 55-pound bushel container. The proposed assessment rate of $0.35 is $0.05 higher than the previous rate. The quantity of assessable avocados for the 2016-17 season is estimated at one million 55-pound bushel containers. Thus, the $0.35 rate should provide $350,000 in assessment income and be adequate to meet this year's expenses.

    The major expenditures recommended by the Committee for the 2016-17 fiscal period include $119,483 for salaries, $51,500 for employee benefits, and $25,500 for insurance and bonds. Budgeted expenses for these items in 2015-16 were $119,483, $51,500, and $25,500, respectively.

    During the 2015-16 season, the Committee used its authorized reserves to fund several large research projects to address the Laurel Wilt fungus. This substantially reduced the funds in the Committee's reserves. Further, at the current assessment rate and with the 2016-17 crop estimated to be one million 55-pound bushel containers, assessment income would equal only $300,000, an amount insufficient to cover the Committee's anticipated expenditures of $302,553. By increasing the assessment rate by $0.05, assessment income would be approximately $350,000. This amount should provide sufficient funds to meet 2016-2017 anticipated expenses and add money back into the Committee's authorized reserves. Consequently, the Committee recommended increasing the assessment rate.

    Prior to arriving at this budget and assessment rate, the Committee considered information from various sources, such as the Committee's Budget and Personnel Committee. Alternative expenditure levels were discussed by this group, based upon the relative value of various activities to the South Florida avocado industry. The Committee ultimately determined that 2016-17 expenditures of $302,553 were appropriate, and the recommended assessment rate, along with interest income, would generate sufficient revenue to meet its expenses.

    A review of historical information and preliminary information pertaining to the upcoming season indicates that the grower price for the 2016-17 season should be around $18 per 55-pound bushel container of avocados. Therefore, the estimated assessment revenue for the 2016-17 fiscal period as a percentage of total grower revenue would be approximately two percent.

    This action would increase the assessment obligation imposed on handlers. While assessments impose some additional costs on handlers, the costs are minimal and uniform on all handlers. Additionally, these costs would be offset by the benefits derived by the operation of the marketing order. In addition, the Committee's meeting was widely publicized throughout the Florida avocado industry and all interested persons were invited to attend the meeting and participate in Committee deliberations on all issues. Like all Committee meetings, the December 9, 2015, meeting was a public meeting and all entities, both large and small, were able to express views on this issue. Finally, interested persons are invited to submit comments on this proposed rule, including the regulatory and informational impacts of this action on small businesses.

    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the order's information collection requirements have been previously approved by the Office of Management and Budget (OMB) and assigned OMB No. 0581-0189 (Generic Fruit Crops). No changes in those requirements as a result of this action are necessary. Should any changes become necessary, they would be submitted to OMB for approval.

    This proposed rule would impose no additional reporting or recordkeeping requirements on either small or large Florida avocado handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies.

    AMS is committed to complying with the E-Government Act, to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.

    USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this action.

    A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at: http://www.ams.usda.gov/rules-regulations/moa/small-businesses. Any questions about the compliance guide should be sent to Antoinette Carter at the previously-mentioned address in the FOR FURTHER INFORMATION CONTACT section.

    A 30-day comment period is provided to allow interested persons to respond to this proposed rule. Thirty days is deemed appropriate because: (1) The 2016-17 fiscal period begins on April 1, 2016, and the marketing order requires that the rate of assessment for each fiscal period apply to all assessable avocados handled during such fiscal period; (2) the Committee needs to have sufficient funds to pay its expenses which are incurred on a continuous basis; and (3) handlers are aware of this action which was recommended by the Committee at a public meeting and is similar to other assessment rate actions issued in past years.

    List of Subjects in 7 CFR Part 915

    Avocados, Marketing agreements, Reporting and recordkeeping requirements.

    For the reasons set forth in the preamble, 7 CFR part 915 is proposed to be amended as follows:

    PART 915—AVOCADOS GROWN IN SOUTH FLORIDA 1. The authority citation for 7 CFR part 915 continues to read as follows: Authority:

    7 U.S.C. 601-674.

    2. Section 915.235 is revised to read as follows:
    § 915.235 Assessment rate.

    On and after April 1, 2016, an assessment rate of $0.35 per 55-pound container or equivalent is established for avocados grown in South Florida.

    Dated: March 10, 2016. Elanor Starmer, Acting Administrator, Agricultural Marketing Service.
    [FR Doc. 2016-05834 Filed 3-15-16; 8:45 am] BILLING CODE 3410-02-P
    DEPARTMENT OF AGRICULTURE Agricultural Marketing Service 7 CFR Part 1250 [Doc. No. AMS-LPS-15-0042] Egg Research and Promotion: Updates to Patents, Copyrights, Trademarks, and Information Provisions AGENCY:

    Agricultural Marketing Service, USDA.

    ACTION:

    Proposed rule.

    SUMMARY:

    This proposed rule would update the Patents, Copyrights, Trademarks, and Information Language (IP) of the Egg Research and Promotion Rules and Regulations (Regulations). The proposed amendment would model current commodity research and promotion program orders created under the Commodity Promotion, Research, and Information Act of 1996.

    DATES:

    Comments must be received by May 16, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Kenneth R. Payne, Research and Promotion Division; Livestock, Poultry, and Seed Program; AMS, USDA; 1400 Independence Avenue SW., Room 2096-S; Washington, DC 20250; telephone: (202) 720-5705; fax (202) 720-1125; or email: [email protected]

    SUPPLEMENTARY INFORMATION: Executive Order 12866

    The Office of Management and Budget (OMB) has waived the review process required by Executive Order 12866 for this action.

    Executive Order 12988

    This proposed rule was reviewed under Executive Order 12988, Civil Justice Reform. It is not intended to have a retroactive effect. This action would not preempt any State or local laws, regulations, or policies unless they present an irreconcilable conflict with this proposed rule. The Egg Research and Consumer Information Act (Act), 7 U.S.C. 2701 et seq., provides that administrative proceedings be filed before parties may consider suit in court. Under section 14 of the Act, 7 U.S.C. 2713, a person subject to the Egg Promotion and Research Order (Order) may file a petition with the U.S. Department of Agriculture (USDA) stating that the Order, any provision of the Order, or any obligation imposed in connection with the Order, is not in accordance with the law and request a modification of the Order or an exemption from the Order. The petitioner is afforded the opportunity for a hearing on the petition. After a hearing, USDA would rule on the petition. The Act provides that district courts of the United States in any district in which such person is an inhabitant, or has their principal place of business, has jurisdiction to review USDA's ruling on the petition, if a complaint for this purpose is filed within 20 days after the date of the entry of the ruling.

    Regulatory Flexibility Act

    In accordance with the Regulatory Flexibility Act (RFA) [5 U.S.C. 601-612], the Agricultural Marketing Service (AMS) has determined that this rule will not have a significant economic impact on a substantial number of small entities as defined by RFA. The purpose of RFA is to fit regulatory action to scale on businesses subject to such action so that small businesses will not be disproportionately burdened. As such, these changes will not impose a significant impact on persons subject to the program.

    According to the American Egg Board (Board), around 181 producers are subject to the provisions of the Order, including paying assessments. Under the current Order, producers in the 48 contiguous United States and the District of Columbia who own more than 75,000 laying hens each currently pay a mandatory assessment of 10 cents per 30-dozen case of eggs. Handlers are responsible for collecting and remitting assessments to the Board. There are approximately 138 egg handlers who collect assessments. Assessments under the program are used by the Board to finance promotion, research, and consumer information programs designed to increase consumer demand for eggs in domestic and international markets.

    In 13 CFR part 121, the Small Business Administration (SBA) defines small agricultural producers as those having annual receipts of no more than $750,000 and small agricultural service firms as those having annual receipts of no more than $7 million. Under this definition, the vast majority of the egg producers that would be affected by this rulemaking would not be considered small entities. Producers owning 75,000 or fewer laying hens are eligible to be exempt from this program. This rulemaking does not impose additional recordkeeping requirements on egg producers or collecting handlers. There are no federal rules that duplicate, overlap, or conflict with this proposed rule.

    Paperwork Reduction Act

    In accordance with OMB regulation 5 CFR part 1320, which implements the Paperwork Reduction Act of 1995 [44 U.S.C. Chapter 35], the information collection and recordkeeping requirements that are imposed by the Order and Rules and Regulations have been approved previously under OMB control number 0581-0093. This proposed rule does not result in a change to those information collection and recordkeeping requirements.

    Background

    The Act established a national egg research and promotion program—administered by the Board—that is financed through industry assessments and subject to oversight by USDA's Agricultural Marketing Service. This program of promotion, research, and consumer information is designed to strengthen the position of eggs in the marketplace and to establish, maintain, and expand markets for eggs.

    Under the current Regulations initially established in 1976, any IP financed by assessment funds or other revenues of the Board shall become property of the U.S. Government as represented by the Board. The language does not allow for alternative ownership arrangements. In addition, there is no explicit allowance for alternative ownership arrangements in cases where the Board is not providing all of the funding for a project. The current language in the Regulation has made negotiating contracts for shared ownership of IP rights with research entities difficult and in some cases impossible. Specifically, a majority of university policies typically reflect a requirement for the university to own any IP created under research projects they conduct, even if the project is funded with outside money. These university policies have made it difficult for the Board to contract with universities for research due to the IP ownership requirements contained in the Regulation. As a result, USDA is proposing to amend § 1250.542 of the Regulations to incorporate language utilized by research and promotion boards created under the Commodity Promotion, Research, and Information Act of 1996, 7 U.S.C. 7411 et seq., that would provide the Board with some flexibility in negotiating the ownership of IP rights.

    The research and promotion boards created under the Commodity Promotion, Research and Information Act of 1996 have utilized the language proposed herein to negotiate IP ownership rights to effectively expend assessment funds to promote agricultural commodities. Currently, the Regulations state that IP accruing from work funded by the Board shall become property of the U.S Government as represented by the Board and that IP may be licensed subject to approval by the Secretary of Agriculture (Secretary). This proposed rule would change the language to allow that ownership of any IP developed during a project funded by the Board to be determined by agreement between the Board and another party, which will provide the Board with the flexibility it needs to negotiate contracts for projects that may involve IP rights.

    List of Subjects in 7 CFR Part 1250

    Administrative practice and procedure, Advertising, Agricultural research, Eggs and egg products, Reporting and recordkeeping requirements.

    For the reasons set forth in the preamble, it is proposed that 7 CFR part 1250 be amended as follows:

    PART 1250—EGG RESEARCH AND PROMOTION 1. The authority citation of 7 CFR part 1250 continues to read as follows: Authority:

    7 U.S.C. 2701-2718 and 7 U.S.C. 7401.

    2. Revise § 1250.542 to read as follows:
    § 1250.542 Patents, copyrights, inventions, trademarks, information, publications, and product formulations.

    (a) Any patents, copyrights, inventions, trademarks, information, publications, or product formulations developed through the use of funds collected by the Board under the provisions of this subpart shall be the property of the U.S. Government, as represented by the Board, and shall, along with any rents, royalties, residual payments, or other income from the rental, sales, leasing, franchising, or other uses of such patents, copyrights, inventions, trademarks, information, publications, or product formulations, inure to the benefit of the Board; shall be considered income subject to the same fiscal, budget, and audit controls as other funds of the Board; and may be licensed subject to approval by the Secretary. Upon termination of this subpart, § 1250.358 shall apply to determine disposition of all such property.

    (b) Should patents, copyrights, inventions, trademarks, information, publications, or product formulations be developed through the use of funds collected by the Board under this subpart and funds contributed by another organization or person, ownership and related rights to such patents, copyrights, inventions, trademarks, information, publications, or product formulations shall be determined by agreement between the Board and the party contributing funds towards the development of such patents, copyrights, inventions, trademarks, information, publications, or product formulations in a manner consistent with paragraph (a) of this section.

    Dated: March 10, 2016. Elanor Starmer, Acting Administrator.
    [FR Doc. 2016-05838 Filed 3-15-16; 8:45 am] BILLING CODE 3410-02-P
    DEPARTMENT OF AGRICULTURE Agricultural Marketing Service 7 CFR Part 1260 [No. AMS-LPS-15-0084] Amendment to the Beef Promotion and Research Rules and Regulations AGENCY:

    Agricultural Marketing Service, USDA.

    ACTION:

    Proposed rule.

    SUMMARY:

    This proposed rule would amend the Beef Promotion and Research Order (Order) established under the Beef Promotion and Research Act of 1985 (Act) to increase assessment levels for imported veal and veal products based on revised determinations of live animal equivalencies and to update and expand the Harmonized Tariff System (HTS) numbers and categories, which identify imported veal and veal products to conform with recent updates in the numbers and categories used by the U.S. Customs and Border Protection (Customs).

    DATES:

    Comments must be received by May 16, 2016.

    ADDRESSES:

    Comments should be posted online at www.regulations.gov. Comments received will be posted without change, including any personal information provided. All comments should reference the docket number, AMS-LPS-15-0084; the date of submission; and the page number of this issue of the Federal Register. Comments may also be sent to Mike Dinkel, Promotion and Research Division, Livestock, Poultry, and Seed Program, Agricultural Marketing Service, Department of Agriculture, Room 2610-S, STOP 0251, 1400 Independence Avenue SW., Washington, DC 20250-0251; or via Fax to (202) 720-1125. Comments will be made available for public inspection at the above address during regular business hours or via the Internet at www.regulations.gov. Comments must be received by May 16, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Mike Dinkel, Agricultural Marketing Specialist; Research and Promotion Division, Room 2610-S; Livestock, Poultry and Seed Program; Agricultural Marketing Service, USDA; STOP 0251; 1400 Independence Avenue SW., Washington, DC 20250-0251; facsimile (202) 720-1125; telephone (301) 352-7497, or by email at [email protected]

    SUPPLEMENTARY INFORMATION: Executive Order 12866

    The Office of Management and Budget (OMB) has waived the review process required by Executive Order 12866 for this action.

    Executive Order 12988

    This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule is not intended to have a retroactive effect.

    Section 11 of the Act provides that nothing in the Act may be construed to preempt or supersede any other program relating to beef promotion organized and operated under the laws of the U.S. or any State. There are no administrative proceedings that must be exhausted prior to any judicial challenge to the provisions of this rule.

    Regulatory Flexibility Act

    Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.), the Acting Administrator of AMS has considered the economic effect of this action on small entities and has determined that this proposed rule will not have a significant economic impact on a substantial number of small business entities. The effect of the Beef Order upon small entities was discussed in the July 18, 1986, Federal Register [51 FR 26132]. The purpose of RFA is to fit regulatory actions to the scale of businesses subject to such actions in order that small businesses will not be unduly burdened.

    There are approximately 270 importers who import beef or edible beef products into the U.S. and 198 importers who import live cattle into the U.S. The majority of these operations subject to the Beef Order are considered small businesses under the criteria established by the Small Business Administration (SBA)[13 CFR 121.201]. SBA defines small agricultural service firms as those having annual receipts of $7.5 million or less.

    The proposed rule will impose no significant burden on the industry. It will merely update and expand the HTS numbers and categories for veal and veal products to conform to recent updates in the numbers and categories used by Customs. This proposed rule will adjust the live animal equivalencies used to determine the amount of assessments collected on imported veal and veal products. This adjustment reflects an increase in the assessment of imported veal product so that it coincides with the assessment on domestic veal product. Accordingly, the Acting Administrator of AMS has determined that this action will not have a significant impact on a substantial number of small entities.

    Paperwork Reduction Act

    In accordance with the Office of Management and Budget (OMB) regulations [5 CFR part 1320] that implement the Paperwork Reduction Act of 1995 [44 U.S.C. Chapter 35], the information collection and recordkeeping requirements contained in the Beef Order and Rules and Regulations have previously been approved by OMB under OMB control number 0581-0093.

    Background

    The Act authorized the establishment of a national beef promotion and research program. The final Beef Order was published in the Federal Register on July 18, 1986, (51 FR 21632), and the collection of assessments began on October 1, 1986. The program is administered by the Cattlemen's Beef Promotion and Research Board (Board), appointed by the Secretary of Agriculture (Secretary) from industry nominations, and composed of 100 cattle producers and importers. The program is funded by a $1-per-head assessment on producer marketing of cattle in the U.S. and on imported cattle as well as an equivalent amount on imported beef and beef products.

    Importers pay assessments on imported cattle, beef, and beef products. Customs collects and remits the assessment to the Board. The term “importer” is defined as “any person who imports cattle, beef, or beef products from outside the United States.” Imported beef or beef products is defined as “products which are imported into the United States which the Secretary determines contain a substantial amount of beef including those products which have been assigned one or more of the following numbers in the Tariff Schedule of the United States.”

    The purpose of this proposed rule is to update, expand, and revise the table found under § 1260.172 (7 CFR 1260.172) to reflect the current HTS numbers and assessments on veal and veal products.

    As a result of these changes to HTS, there are 6 new categories that cover imported veal and veal products subject to assessment. The 30 categories identifying imported beef and beef products have been expanded to 66 categories.

    This proposed rule updates and expands the chart published in the 2006 final rule to conform with recent changes to the HTS numbering system and revises the live weight equivalents used to calculate import veal assessments. Importers are currently paying a lower assessment level for imported veal and veal products than what is being paid for domestic veal and veal products. At that time, the average dressed weight of veal slaughtered under Federal inspection was determined to be 154 pounds. USDA determined that using the average dressed weight of domestic veal slaughtered under Federal inspection would be most suitable because most of the imported veal and veal products were similar to domestic veal.

    The Act requires that assessments on imported beef and beef products be determined by converting such imports into live animal equivalents to ascertain the corresponding number of head of cattle. Carcass weight is the principle factor in calculating live animal equivalents.

    Prior to publishing the proposed rule, USDA received information from the Board regarding imported veal assessments on April 7, 2015. The Board requested to expand the number of HTS codes for imported veal and veal products in order to capture product that is not currently being assessed and to update the live animal equivalency rate on imported veal to reflect the same assessment as domestic veal and veal products. The Board also suggested that AMS update the dressed veal weight to better reflect current dressed veal weights. The Board recommends using an average dressed veal weight from 2010 to the most current data. The Board states that “establishing an average over this period of time takes into account short term highs and lows due to the cattle cycle, weather effects, and feed prices.” This average would be 154 pounds.

    List of Subjects in 7 CFR Part 1260

    Administrative practice and procedure, Advertising, Agricultural research, Marketing agreements, Meat and meat products, Beef, and Beef products.

    For the reasons set forth in the preamble, title 7 of the CFR part 1260 is proposed to be amended as follows:

    PART 1260—BEEF PROMOTION AND RESEARCH 1. The authority citation for 7 CFR part 1260 continues to read as follows: Authority:

    7 U.S.C. 2901-2911 and 7 U.S.C. 7401.

    2. Amend § 1260.172 by revising paragraph (b)(2) to read as follows:
    § 1260.172 Assessments.

    (b) * * *

    (2) The assessment rates for imported cattle, beef, and beef products are as follows:

    Imported Live Cattle HTS No. Assessment rate 0102.10.0010 $1.00/head. 0102.10.0020 $1.00/head. 0102.10.0030 $1.00/head. 0102.10.0050 $1.00/head. 0102.90.2011 $1.00/head. 0102.90.2012 $1.00/head. 0102.90.4024 $1.00/head. 0102.90.4028 $1.00/head. 0102.90.4034 $1.00/head. 0102.90.4038 $1.00/head. 0102.90.4054 $1.00/head. 0102.90.4058 $1.00/head. 0102.90.4062 $1.00/head. 0102.90.4064 $1.00/head. 0102.90.4066 $1.00/head. 0102.90.4068 $1.00/head. 0102.90.4072 $1.00/head. 0102.90.4074 $1.00/head. 0102.90.4082 $1.00/head. 0102.90.4084 $1.00/head. Imported Beef and Beef Products HTS No. Assessment rate per kg 0201.10.0510 .01693600 0201.10.0590 .00379102 0201.10.1010 .01693600 0201.10.1090 .00379102 0201.10.5010 .01693600 0201.10.5090 .00511787 0201.20.0200 .00530743 0201.20.0400 .00511787 0201.20.0600 .00379102 0201.20.1000 .00530743 0201.20.3000 .00511787 0201.20.5000 .00379102 0201.20.8090 .00379102 0201.30.0200 .00530743 0201.30.0400 .00511787 0201.30.0600 .00379102 0201.30.1000 .00530743 0201.30.3000 .00511787 0201.30.5000 .00511787 0201.30.8090 .00511787 0202.10.0510 .01693600 0202.10.0590 .00379102 0202.10.1010 .01693600 0202.10.1090 .00370102 0202.10.5010 .01693600 0202.10.5090 .00379102 0202.20.0200 .00530743 0202.20.0400 .00511787 0202.20.0600 .00379102 0202.20.1000 .00530743 0202.20.3000 .00511787 0202.20.5000 .00379102 0202.20.8000 .00379102 0202.30.0200 .00530743 0202.30.0400 .00511787 0202.30.0600 .00527837 0202.30.1000 .00530743 0202.30.3000 .00511787 0202.30.5000 .00511787 0202.30.8000 .00379102 0206.10.0000 .00379102 0206.21.0000 .00379102 0206.22.0000 .00379102 0206.29.0000 .00379102 0210.20.0000 .00615701 1601.00.4010 .00473877 1601.00.4090 .00473877 1601.00.6020 .00473877 1602.50.0900 .00663428 1602.50.1020 .00663428 1602.50.1040 .00663428 1602.50.2020 .00701388 1602.50.2040 .00701388 1602.50.6000 .00720293 NEW Imported (Veal) Beef and Beef Products HTS No. Assessment rate per kg 0201.20.5010 .01693600 0201.20.5020 .01693600 0201.30.5010 .01693600 0201.30.5020 .01693600 0202.30.5010 .01693600 0202.30.5020 .01693600
    Dated: March 10, 2016. Elanor Starmer, Acting Administrator, Agricultural Marketing Service.
    [FR Doc. 2016-05859 Filed 3-15-16; 8:45 am] BILLING CODE 3410-02-P
    DEPARTMENT OF ENERGY 10 CFR Part 430 [Docket Number EERE-2016-BT-STD-0004] RIN 1904-AD61 Appliance Standards and Rulemaking Federal Advisory Committee: Notice of Open Meetings for the Circulator Pumps Working Group To Negotiate a Notice of Proposed Rulemaking (NOPR) for Energy Conservation Standards and Test Procedures AGENCY:

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

    ACTION:

    Notice of public meetings.

    SUMMARY:

    The Department of Energy (DOE) announces public meetings and webinars for the Circulator Pumps Working Group. The Federal Advisory Committee Act requires that agencies publish notice of an advisory committee meeting in the Federal Register.

    DATES:

    See SUPPLEMENTARY INFORMATION section for meeting dates.

    ADDRESSES:

    The meetings will be held at U.S. Department of Energy, Building Technologies Office, 950 L'Enfant Plaza, 6th Floor SW., Washington, DC, 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/standards.aspx?productid=2.

    FOR FURTHER INFORMATION CONTACT:

    Mr. Joe Hagerman, 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) 586-4549. 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) 287-6307 Email: [email protected].

    SUPPLEMENTARY INFORMATION:

    On January 20, 2016, ASRAC met and unanimously passed the recommendation to form a circulator pumps working group. The purpose of the working group is to discuss and, if possible, reach consensus on a proposed rule regarding definitions, test procedures, and energy conservation standards, as authorized by the Energy Policy and Conservation Act (EPCA) of 1975, as amended. The working group consists of representatives of parties having a defined stake in the outcome of the proposed standards, and will consult as appropriate with a range of experts on technical issues. Per the ASRAC Charter, the working group is expected to make a concerted effort to negotiate a final term sheet by September 30, 2016. This notice announces the next series of meetings for this working group.

    DOE will host public meetings and webinars on the below dates.

    • Tuesday, March 29, 2016 at 12 p.m. to 4 p.m. EST Webinar only.

    • Thursday, March 31, 2016 from 9 a.m. to 5 p.m. EST at 950 L'Enfant Plaza, 6th Floor SW., Washington, DC.

    • Friday, April 1, 2016 from 8 a.m. to 3 p.m. EST at 950 L'Enfant Plaza, 6th Floor SW., Washington, DC.

    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 March 10, 2016. Kathleen B. Hogan, Deputy Assistant Secretary for Energy Efficiency, Energy Efficiency and Renewable Energy.
    [FR Doc. 2016-05917 Filed 3-15-16; 8:45 am] BILLING CODE 6450-01-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R05-OAR-2011-0969; EPA-R05-OAR-2014-0704; FRL-9943-76-Region 5] Indiana; Ohio; Wisconsin; Disapproval of Interstate Transport Requirements for the 2008 Ozone NAAQS AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is proposing to disapprove elements of State Implementation Plan (SIP) submissions from Indiana and Ohio regarding the infrastructure requirements of section 110 of the Clean Air Act (CAA) for the 2008 ozone National Ambient Air Quality Standards (NAAQS), and to partially approve and partially disapprove elements of the SIP submission from Wisconsin addressing the same requirements. 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. This action pertains specifically to infrastructure requirements concerning interstate transport provisions. Ohio, Indiana, and Wisconsin made SIP submissions that, among other things, certified that their existing SIPs were sufficient to meet the interstate transport infrastructure SIP requirements for the 2008 ozone NAAQS. EPA is proposing to disapprove portions of submissions from Indiana and Ohio, and to partially approve and partially disapprove a portion of Wisconsin's submission addressing these requirements.

    DATES:

    Comments on this proposed rule must be received on or before April 15, 2016.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R05-OAR-2011-0969 (Indiana and Ohio) and EPA-R05-OAR-2014-0704 (Wisconsin) at http://www.regulations.gov or via email to [email protected] For comments submitted at Regulations.gov, follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. For either manner of submission, EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. EPA will generally not consider comments or comment contents located outside of the primary submission (i.e. on the web, cloud, or other file sharing system). For additional submission methods, please contact the person identified in the FOR FURTHER INFORMATION CONTACT section. For the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

    FOR FURTHER INFORMATION CONTACT:

    Sarah Arra, Environmental Scientist, Attainment Planning and Maintenance Section, Air Programs Branch (AR-18J), U.S. Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 886-9401, [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. Background II. EPA's Review III. What action is EPA taking? IV. Statutory and Executive Order Reviews I. Background

    This rulemaking addresses CAA section 110(a)(2)(D)(i) requirements in three infrastructure SIP submissions addressing the applicable infrastructure requirements with respect to the 2008 ozone NAAQS: a December 12, 2011, submission from the Indiana Department of Environmental Management (IDEM), clarified in a May 24, 2012, letter; a December 27, 2012, submission from the Ohio Environmental Protection Agency (Ohio EPA); and a June 20, 2013, submission from the Wisconsin Department of Natural Resources (WDNR), clarified in a January 28, 2015, letter.

    The requirement for states to make a SIP submission of this type arises out of CAA section 110(a)(1). Pursuant to section 110(a)(1), states must make SIP submissions “within 3 years (or such shorter period as the Administrator may prescribe) after the promulgation of a national primary ambient air quality standard (or any revision thereof),” and these SIP submissions are to provide for the “implementation, maintenance, and enforcement” of such NAAQS. The statute directly imposes on states the duty to make these SIP submissions, and the requirement to make the submissions is not conditioned upon EPA's taking any action other than promulgating a new or revised NAAQS. Section 110(a)(2) includes a list of specific elements that “[e]ach such plan” submission must address. EPA commonly refers to such state plans as “infrastructure SIPs.”

    This rulemaking proposes action on three CAA section 110(a)(2)(D)(i) requirements of these submissions. In particular, section 110(a)(2)(D)(i)(I) requires SIPs to include provisions prohibiting any source or other type of emissions activity in one state from contributing significantly to nonattainment of the NAAQS (“prong one”), or interfering with maintenance of the NAAQS (“prong two”), by any another state. Section 110(a)(2)(D)(i)(II) requires that infrastructure SIPs include provisions prohibiting any source or other type of emissions activity in one state from interfering with measures required to prevent significant deterioration (PSD) of air quality (“prong three”) and to protect visibility (“prong four”) in another state. This rulemaking addresses prongs one, two, and four of this CAA section. The majority of the other infrastructure elements were approved in rulemakings on April 29, 2015 (80 FR 23713) for Indiana; October 16, 2014 (79 FR 62019) for Ohio; and September 11, 2015 (80 FR 54725) for Wisconsin.

    II. EPA's Review

    On September 13, 2013, EPA issued “Guidance on Infrastructure State Implementation Plan (SIP) Elements under Clean Air Act sections 110(a)(1) and 110(a)(2)” (2013 Guidance). This guidance provides, among other things, recommendations on the development of infrastructure SIPs for the 2008 ozone NAAQS.1 As noted in the 2013 Guidance, pursuant to CAA section 110(a), states must provide reasonable notice and opportunity for public hearing for all infrastructure SIP submissions. IDEM, Ohio EPA, and WDNR provided public comment opportunities on their SIP submissions. In this action of proposed rulemaking, EPA is also soliciting comment on our evaluation of each state's infrastructure SIP submission. The states summarized how various components of their SIPs met each of the applicable requirements in section 110(a)(2) for the 2008 ozone NAAQS, as applicable. The following review evaluates only the state's submissions for three CAA section 110(a)(2)(D)(i) requirements.

    1 The 2013 Guidance does not make recommendations with respect to infrastructure SIP submissions to address section 110(a)(2)(D)(i)(I) requirements—i.e., prongs one and two. EPA issued the Guidance shortly after the D.C. Circuit decision in EME Homer City, 696 F.3d 7 (D.C. Cir. 2012), which had interpreted the requirements of section 110(a)(2)(D)(i)(I). In light of the uncertainty created by that ongoing litigation, EPA elected at the time to not provide additional guidance on those requirements. As guidance is neither binding, nor required by statute, whether EPA's elects to provide guidance on a particular section has no impact on a state's CAA obligations.

    A. Section 110(a)(2)(D)(i)(I)—Prongs One and Two

    IDEM's submission addressing the prong one and two requirements states that it is currently “in the process of promulgating rules” to implement EPA's 2011 Cross-State Air Pollution Rule (CSAPR). IDEM noted, however, that at the time of its submission CSAPR was being implemented pursuant to a Federal Implementation Plan (FIP). IDEM did not cite any additional rules or regulations controlling emissions from the state or otherwise provide any additional analysis regarding the impacts of emissions from sources in Indiana on air quality in other states with respect to the 2008 ozone NAAQS.

    Ohio EPA's submission cited various state rules related generally to interstate transport of pollutants including rules concerning stack height requirements, acid rain permits and compliance, the nitrogen oxide budget trading program, the Clean Air Interstate Rule (CAIR), and the Clean Air Mercury Rule. Ohio EPA also noted EPA's development of CAIR and regional haze programs that help address interstate transport. Finally, Ohio EPA noted that it has “responded to requests” from Indiana and West Virginia to ameliorate interstate transport by revising state rules applicable to Hamilton and Jefferson Counties. Ohio EPA did not provide any additional analysis regarding the impacts of emissions from sources in Ohio on air quality in other states with respect to the 2008 ozone NAAQS, particularly as to whether the state rules identified in its submission are sufficient to prohibit emissions that significantly contribute to nonattainment or interfere with maintenance of the standard in other states.

    WDNR's submission states that the Wisconsin SIP implements the state portions of CAIR as a means of addressing the interstate transport of ozone precursors, and that current state and regional controls are sufficient to meet the state's transport obligations. WDNR also noted that it has “the authority to develop” additional control requirements once the EPA complies with the DC Circuit's opinion in EME Homer City Generation v. EPA, 696 F.3d 7 (2012), instructing EPA to quantify each state's significant contribution to air quality problems in other states before requiring states to submit SIPs addressing such pollution. Subsequent to WDNR's submission, however, the U.S. Supreme Court reversed the DC Circuit. See EPA v. EME Homer City Generation, 134 S. Ct. 1584 (2014). WDNR has not supplemented its initial submission and did not provide any additional analysis regarding the impacts of emissions from sources in Wisconsin on air quality in other states with respect to the 2008 ozone NAAQS.

    Although many of the programs and rules cited by Ohio EPA, IDEM, and WDNR reduce precursor emissions that contribute to ozone formation and interstate transport, they were not developed to address interstate transport for the more stringent 2008 ozone NAAQS. None of the states have demonstrated how these programs and rules provide sufficient controls on emissions to address interstate transport for the 2008 ozone NAAQS. IDEM in particular does not cite any rules currently being implemented by the state that are part of Indiana's approved SIP or that are being submitted as part of the present SIP submission to address interstate transport for the 2008 ozone NAAQS, instead Indiana refers only to rules that it anticipates may be implemented by the state in the future.

    Ohio EPA and WDNR's submissions both rely on the states' implementation of CAIR, which was designed to address the 1997 Ozone NAAQS, but not the more stringent 2008 ozone standard being evaluated in this action. Regardless, neither the states nor EPA are currently implementing the ozone-season NOX trading program promulgated in CAIR, as it has been replaced by CSAPR.

    In turn, CSAPR addresses interstate transport requirements for the 1997 PM2.5 NAAQS, 1997 ozone NAAQS, and 2006 PM2.5 NAAQS. Because the three submissions addressed by this action concern states' interstate transport obligations for a different and more stringent standard (the 2008 ozone NAAQS), it is not sufficient to merely cite as evidence of compliance that these older programs have been implemented by the states or EPA.2 These submissions all lack any technical analysis evaluating or demonstrating whether emissions in each state impact air quality in other states with respect to the 2008 ozone NAAQS. As such, the submissions themselves do not provide EPA with a basis to agree with the conclusions that the states already have adequate provisions in their SIPs to address CAA section 110(a)(2)(D)(i)(I) requirements for the 2008 ozone NAAQS.

    2 This is particularly true where, as here, the states have failed to include any analysis of the downwind impacts of emissions originating within their borders. See, e.g., Westar Energy Inc. v. EPA, 608 Fed. Appx. 1, 3-4 (D.C. Cir. 2015).

    Although these submissions contain no data or analysis to support their conclusions with respect to section 110(a)(2)(D)(i)(I), EPA has recently shared technical information with states to facilitate their efforts to address interstate transport requirements for the 2008 ozone NAAQS. EPA developed this technical information following the same approach used to evaluate interstate contribution in CSAPR in order to support the recently proposed Cross-State Air Pollution Rule Update for the 2008 Ozone NAAQS, 80 FR 75706 (December 3, 2015) (“CSAPR Update Rule”).

    In CSAPR, EPA used detailed air quality analyses to determine whether an eastern state's contribution to downwind air quality problems was at or above specific thresholds. If a state's contribution did not exceed the specified air quality screening threshold, the state was not considered “linked” to identified downwind nonattainment and maintenance receptors and was therefore not considered to significantly contribute or interfere with maintenance of the standard in those downwind areas. If a state exceeded that threshold, the state's emissions were further evaluated, taking into account both air quality and cost considerations, to determine what, if any, emissions reductions might be necessary. For the reasons stated below, we believe it is appropriate to use the same approach we used in CSAPR to establish an air quality screening threshold for the evaluation of interstate transport requirements for the 2008 ozone standard.

    In CSAPR, EPA proposed an air quality screening threshold of one percent of the applicable NAAQS and requested comment on whether one percent was appropriate. EPA evaluated the comments received and ultimately determined that one percent was an appropriately low threshold because there were important, even if relatively small, contributions to identified nonattainment and maintenance receptors from multiple upwind states. In response to commenters who advocated a higher or lower threshold than one percent, EPA compiled the contribution modeling results for CSAPR to analyze the impact of different possible thresholds for the eastern United States. EPA's analysis showed that the one percent threshold captures a high percentage of the total pollution transport affecting downwind states, while the use of higher thresholds would exclude increasingly larger percentages of total transport. For example, at a five percent threshold, the majority of interstate pollution transport affecting downwind receptors would be excluded. In addition, EPA determined that it was important to use a relatively lower one percent threshold because there are adverse health impacts associated with ambient ozone even at low levels. EPA also determined that a lower threshold such as 0.5 percent would result in relatively modest increases in the overall percentages of fine particulate matter and ozone pollution transport captured relative to the amounts captured at the one-percent level. EPA determined that a “0.5 percent threshold could lead to emission reduction responsibilities in additional states that individually have a very small impact on those receptors—an indicator that emission controls in those states are likely to have a smaller air quality impact at the downwind receptor. We are not convinced that selecting a threshold below one percent is necessary or desirable.”

    In the final CSAPR, EPA determined that one percent was a reasonable choice considering the combined downwind impact of multiple upwind states in the eastern United States, the health effects of low levels of fine particulate matter and ozone pollution, and EPA's previous use of a one percent threshold in CAIR. EPA used a single “bright line” air quality threshold equal to one percent of the 1997 8-hour ozone standard, or 0.08 parts per million (ppm). The projected contribution from each state was averaged over multiple days with projected high modeled ozone, and then compared to the one percent threshold. We concluded that this approach for setting and applying the air quality threshold for ozone was appropriate because it provided a robust metric, was consistent with the approach for fine particulate matter used in CSAPR, and because it took into account, and would be applicable to, any future ozone standards below 0.08 ppm. EPA has subsequently proposed to use the same threshold for purposes of evaluating interstate transport with respect to the 2008 ozone standard in the CSAPR Update Rule.

    On August 4, 2015, EPA issued a Notice of Data Availability (NODA) containing air quality modeling data that applies the CSAPR approach to contribution projections for the year 2017 for the 2008 8-hour ozone NAAQS. The modeling data released in this NODA was also used to support the proposed CSAPR Update Rule. The moderate area attainment date for the 2008 ozone standard is July 20, 2018. In order to demonstrate attainment by this attainment deadline, states will use 2015 through 2017 ambient ozone data. Therefore, EPA proposed that 2017 is an appropriate future year to model for the purpose of examining interstate transport for the 2008 ozone NAAQS. EPA used photochemical air quality modeling to project ozone concentrations at air quality monitoring sites to 2017 and estimated state-by-state ozone contributions to those 2017 concentrations. This modeling used the Comprehensive Air Quality Model with Extensions (CAMx version 6.11) to model the 2011 base year, and the 2017 future base case emissions scenarios to identify projected nonattainment and maintenance sites with respect to the 2008 ozone NAAQS in 2017. EPA used nationwide state-level ozone source apportionment modeling (CAMx Ozone Source Apportionment Technology/Anthropogenic Precursor Culpability Analysis technique) to quantify the contribution of 2017 base case NOX and VOC emissions from all sources in each state to the 2017 projected receptors. The air quality model runs were performed for a modeling domain that covers the 48 contiguous United States and adjacent portions of Canada and Mexico. The NODA and the supporting technical support documents have been included in the docket for this SIP action. The modeling data released in the NODA on August 4, 2015, and the CSAPR Update are the most up-to-date information EPA has developed to inform our analysis of upwind state linkages to downwind air quality problems. As discussed in the CSAPR Update proposal for the 2008 ozone NAAQS, the air quality modeling: (1) Identified locations in the U.S. where EPA expects nonattainment or maintenance problems in 2017 for the 2008 ozone NAAQS (i.e., nonattainment or maintenance receptors), and (2) quantified the projected contributions of emissions from upwind states to downwind ozone concentrations at those receptors in 2017 (80 FR 75706, 75720-30, December 3, 2015). Consistent with CSAPR, EPA proposed to use a threshold of one percent of the 2008 ozone NAAQS (0.75 parts per billion) to identify linkages between upwind states and downwind nonattainment or maintenance receptors. EPA proposed that eastern states with contributions to a specific receptor that meet or exceed this screening threshold are considered “linked” to that receptor, and were analyzed further to quantify available emissions reductions necessary to address interstate transport to these receptors.

    The results of EPA's air quality modeling with respect to Ohio, Indiana, and Wisconsin are summarized in Table 1 below. That modeling indicates that emissions from Ohio and Indiana are linked to both nonattainment and maintenance receptors in downwind states, and that Wisconsin is linked only to downwind maintenance receptors.

    Table 1—CSAPR Update Proposal Contributions to Downwind Nonattainment and Maintenance Areas State Largest
  • contribution to
  • nonattainment
  • Largest
  • contribution to
  • maintenance
  • Downwind nonattainment receptors located in states Downwind maintenance receptors located in states
    Indiana 6.24 ppb 14.95 ppb Connecticut and Wisconsin Kentucky, Maryland, Michigan, New Jersey, New York, Ohio and Pennsylvania. Ohio 2.18 ppb 7.92 ppb Connecticut and Wisconsin Connecticut, Kentucky, Maryland, Michigan, New Jersey, New York, and Pennsylvania. Wisconsin 0.34 ppb 2.59 ppb Michigan.

    Accordingly, the most recent technical analysis available to EPA contradicts Indiana, Ohio, and Wisconsin's conclusion that each state's SIP contains adequate provisions to address interstate transport as to the 2008 ozone standard.

    EPA is proposing to disapprove the Indiana and Ohio SIPs for both the prong one and prong two requirements of CAA section 110(a)(2)(D)(i)(I). As explained above, the IDEM and Ohio EPA SIP submissions do not provide an adequate technical analysis demonstrating that each state's SIP contains adequate provisions prohibiting emissions that will significantly contribute to nonattainment or interfere with the 2008 ozone NAAQS in any other state. Moreover, EPA's most recent modeling indicates that emissions from those states are projected to significantly contribute to downwind nonattainment and maintenance receptors in other states.

    EPA is proposing to disapprove the Wisconsin SIP for the prong two requirement of CAA section 110(a)(2)(D)(i)(I) with respect to the 2008 ozone NAAQS. As explained above, the WDNR SIP submission does not provide an adequate technical analysis demonstrating that the state's SIP contains adequate provisions prohibiting emissions that will significantly contribute to nonattainment or interfere with the 2008 ozone NAAQS in any other state. Moreover, EPA's most recent modeling indicates that emissions from Wisconsin are projected to contribute to projected downwind maintenance receptors in another state.

    However, EPA is proposing to approve the Wisconsin SIP for the prong one requirement of CAA section 110(a)(2)(D)(i)(I) with respect to the 2008 ozone NAAQS. Although WDNR did not provide information or analyses explaining why existing SIP provisions are adequate to prevent significant contribution to nonattainment in downwind states, EPA's independent modeling presented in the NODA and the CSAPR Update Rule indicates that Wisconsin emissions are not linked to any projected downwind nonattainment receptors. Accordingly, EPA proposes to find that the Wisconsin SIP has adequate provisions to prevent such significant contribution to nonattainment as to the 2008 ozone standard, and to accordingly approve the SIP for the prong one requirement of CAA section 110(a)(2)(D)(i)(I) with respect to the 2008 ozone NAAQS.

    B. Section 110(a)(2)(D)(i)(II)—Prong Four Only

    No action is being taken today on prong three relating to PSD. This prong was approved for Indiana on April 29, 2015 (80 FR 23713) and for Ohio on February 27, 2015 (80 FR 10591), and will be acted on for Wisconsin in a future rulemaking.

    The 2013 Guidance states that section 110(a)(2)(D)(i)(II)'s prong four requirements can be satisfied by approved SIP provisions that EPA has found to adequately address any contribution of a state's sources to impacts on visibility programs in other states. The Guidance lays out two ways in which a state's infrastructure SIP may comply with prong four. The first way is through an air agency's confirmation in its infrastructure SIP submission that it has an EPA-approved regional haze SIP that fully meets the requirements of 40 CFR 51.308 or 51.309. These sections specifically require that a state participating in a regional planning process include all measures needed to achieve its apportionment of emission reduction obligations agreed upon through that process. A fully approved regional haze SIP will ensure that emissions from sources under an air agency's jurisdiction are not interfering with measures in other air agencies' plans to protect visibility.

    Alternatively, in the absence of a fully approved regional haze SIP, a state may meet its prong four requirements through a demonstration in its infrastructure SIP that emissions within its jurisdiction do not interfere with other air agencies' plans to protect visibility. Such a submission would need to include measures to limit visibility-impairing pollutants and ensure that the reductions conform with any mutually agreed regional haze reasonable progress goals for mandatory Class I areas in other states.

    What is EPA's assessment of the states' prong four submissions?

    For prong four, relating to protection of visibility in another state, in this rulemaking EPA is proposing to disapprove the relevant portion of the SIPs for Ohio and Indiana. On September 11, 2015 (80 FR 54725), EPA approved Wisconsin's visibility requirements for the 2008 ozone NAAQS. Therefore, in this rulemaking, no action is necessary regarding Wisconsin's prong four requirements.

    IDEM's submission acknowledges that Indiana is subject to the regional haze program, which addresses visibility-impairing pollutants. EPA finalized a limited approval of Indiana's regional haze SIP submission for, among other things, BART for non-electric generating units (EGUs) and PM from EGUs on June 11, 2012 (77 FR 34218).

    Ohio EPA's submission also mentions the regional haze program for addressing visibility, as well as the air agency's work with Federal Land Managers to address proposed major new sources in the state. EPA finalized a limited approval of Ohio's regional haze SIP submission for, among other things, non-EGUs on July 2, 2012 (77 FR 39177).

    However, Indiana and Ohio's regional haze plans both rely on CAIR for addressing visibility for EGUs. EPA had originally found that CAIR was an acceptable solution for meeting the requirement of the regional haze program for EGUs.3 However, the D.C Circuit remanded CAIR to EPA with instructions to replace that rulemaking with a new rulemaking consistent with the Court's opinion.4 Subsequently EPA issued a rulemaking stating that CAIR's replacement, CSAPR, could be used to satisfy the EGU portion of the regional haze plans. June 7, 2012 (77 FR 33642). In that same rulemaking, EPA issued limited disapprovals of Indiana and Ohio's regional haze SIP submissions, among other states, and issued FIPs that allowed CSAPR to meet the regional haze requirements for EGUs in applicable states (77 FR 33642).

    3 “Technical Support Document for the Final Clean Air Interstate Rule: Demonstration that CAIR Satisfies the “Better-than-BART” Test As proposed in the Guidelines for Making BART Determinations.” March 2005.

    4See North Carolina v. EPA, 531 F.3d 896; modified by 550 F.3d 1176 (D.C. Cir. 2008).

    Although both Indiana and Ohio have approved regional haze plans for their non-EGUs, they do not have fully approved regional haze SIPs in place because both States' EGU-related obligations are satisfied by EPA's CSAPR-based FIPs. Furthermore, neither Indiana nor Ohio has provided a demonstration in its infrastructure SIP submission showing that emissions within its jurisdiction do not interfere with other air agencies' plans to protect visibility. Because the States have failed to meet either option for satisfying their prong four obligations laid out in the 2013 Guidance, EPA is proposing to disapprove prong four for the infrastructure element under section 110(a)(2)(D)(i)(II) for the 2008 ozone standard.

    III. What action is EPA taking?

    EPA is proposing to disapprove a portion of submissions from Indiana, Ohio, and Wisconsin certifying that each of their current SIPs are sufficient to meet the required infrastructure element under CAA section 110(a)(2)(D)(i) for the 2008 ozone NAAQS, specifically prongs one, two, and four for Indiana and Ohio, and prong two for Wisconsin. In addition, EPA is proposing to approve the prong one portion of Wisconsin's SIP submission with respect to CAA section 110(a)(2)(D)(i).

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

    This action is not a significant regulatory action and was therefore not submitted to the Office of Management and Budget (OMB) for review.

    B. Paperwork Reduction Act (PRA)

    This rulemaking does not impose an information collection burden under the provisions of the PRA.

    C. Regulatory Flexibility Act (RFA)

    The Administrator certifies that this proposed rule will not have a significant economic impact on a substantial number of small entities under the RFA. In making this determination, the impact of concern is any significant adverse economic impact on small entities. An agency may certify that a rulemaking will not have a significant economic impact on a substantial number of small entities if the rule relieves regulatory burden, has no net burden or otherwise has a positive economic effect on the small entities subject to the rule. This action merely proposes to disapprove state law as not meeting Federal requirements and imposes no additional requirements beyond those imposed by state law.

    D. Unfunded Mandates Reform Act (UMRA)

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

    E. Executive Order 13132: Federalism

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

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

    This action does not have tribal implications as specified in Executive Order 13175. It will not have substantial direct effects on tribal governments. Thus, Executive Order 13175 does not apply to this proposed rule.

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

    This action is not subject to Executive Order 13045 because it is not economically significant as defined in Executive Order 12866, and because EPA does not believe the environmental health or safety risks addressed by this action present a disproportionate risk to children because it proposes to disapprove a state rule.

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

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

    I. National Technology Transfer and Advancement Act (NTTAA)

    This rulemaking does not involve technical standards.

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

    EPA believes the human health or environmental risk addressed by this action will not have potential disproportionately high and adverse human health or environmental effects on minority, low-income or indigenous populations.

    List of Subjects in 40 CFR Part 52

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

    Dated: March 7, 2016. Robert A. Kaplan, Acting Regional Administrator, Region 5.
    [FR Doc. 2016-05953 Filed 3-15-16; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 180 [EPA-HQ-OPP-2015-0032; FRL-9942-86] Receipt of Several Pesticide Petitions Filed for Residues of Pesticide Chemicals in or on Various Commodities AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Notice of filing of petitions and request for comment.

    SUMMARY:

    This document announces the Agency's receipt of several initial filings of pesticide petitions requesting the establishment or modification of regulations for residues of pesticide chemicals in or on various commodities.

    DATES:

    Comments must be received on or before April 15, 2016.

    ADDRESSES:

    Submit your comments, identified by docket identification (ID) number and the pesticide petition number (PP) of interest as shown in the body of this document, by one of the following methods:

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

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

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

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

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

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

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

    • Crop production (NAICS code 111).

    • Animal production (NAICS code 112).

    • Food manufacturing (NAICS code 311).

    • Pesticide manufacturing (NAICS code 32532).

    If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT for the division listed at the end of the pesticide petition summary of interest.

    B. What should I consider as I prepare my comments for EPA?

    1. Submitting CBI. Do not submit this information to EPA through regulations.gov or email. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as CBI and then identify electronically within the disk or CD-ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

    2. Tips for preparing your comments. When preparing and submitting your comments, see the commenting tips at http://www.epa.gov/dockets/comments.html.

    3. Environmental justice. EPA seeks to achieve environmental justice, the fair treatment and meaningful involvement of any group, including minority and/or low-income populations, in the development, implementation, and enforcement of environmental laws, regulations, and policies. To help address potential environmental justice issues, the Agency seeks information on any groups or segments of the population who, as a result of their location, cultural practices, or other factors, may have atypical or disproportionately high and adverse human health impacts or environmental effects from exposure to the pesticides discussed in this document, compared to the general population.

    II. What action is the agency taking?

    EPA is announcing its receipt of several pesticide petitions filed under section 408 of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a, requesting the establishment or modification of regulations in 40 CFR part 180 for residues of pesticide chemicals in or on various food commodities. The Agency is taking public comment on the requests before responding to the petitioners. EPA is not proposing any particular action at this time. EPA has determined that the pesticide petitions described in this document contain the data or information prescribed in FFDCA section 408(d)(2), 21 U.S.C. 346a(d)(2); however, EPA has not fully evaluated the sufficiency of the submitted data at this time or whether the data support granting of the pesticide petitions. After considering the public comments, EPA intends to evaluate whether and what action may be warranted. Additional data may be needed before EPA can make a final determination on these pesticide petitions.

    Pursuant to 40 CFR 180.7(f), a summary of each of the petitions that are the subject of this document, prepared by the petitioner, is included in a docket EPA has created for each rulemaking. The docket for each of the petitions is available at http://www.regulations.gov.

    As specified in FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), EPA is publishing notice of the petition so that the public has an opportunity to comment on this request for the establishment or modification of regulations for residues of pesticides in or on food commodities. Further information on the petition may be obtained through the petition summary referenced in this unit.

    New Tolerances

    PP 5F8351. EPA-HQ-OPP-2015-0478. Makhteshim Agan of North America, Inc. (d/b/a ADAMA), 3120 Highwoods Blvd. Suite 100, Raleigh, NC 27604, requests to establish a tolerance in 40 CFR part 180 for residues of the nematicide fluensulfone, including its metabolites and degradates, in or on berry, low growing, subgroup 13-07G at 0.30 parts per million (ppm); head and stem brassica subgroup 5A at 1.3 ppm; leafy brassica greens subgroup 5B at 13 ppm; leafy vegetables, group 4, except brassica vegetables at 2.6 ppm; leaves of root and tuber vegetables, group 2 at 20 ppm; radish, oriental at 0.50 ppm; and root vegetables, subgroup 1B, except sugar beet and oriental radish at 3.3 ppm. Compliance with the tolerance levels is to be determined by measuring only 3,4,4-trifluoro-but-3-ene-1-sulfonic acid. The liquid chromotography with tandem mass spectrometry (LC-MS/MS) residue analytical method is used to measure and evaluate the chemical fluensulfone. Contact: RD.

    PP 5F8379. EPA-HQ-OPP-2015-0559. Bayer CropScience, 2 T.W. Alexander Drive, Research Triangle Park, NC 27709, requests to establish a tolerance in 40 CFR 180.664 for residues of the fungicide penflufen, in or on sugarbeet seed treatment at 0.01 parts per million (ppm). The LC/MS/MS is used to measure and evaluate the chemical penflufen. Contact: RD.

    PP 5E8399. EPA-HQ-OPP-2015-0658. Interregional Research Project Number 4 (IR-4), IR-4 Project Headquarters, Rutgers, The State University of New Jersey, 500 College Road East, Suite 201 W, Princeton, NJ 08540, requests to establish tolerances in 40 CFR 180.568 for residues of the herbicide, flumioxazin 2-[7-fluoro-3,4-dihydro3-oxo-4-(2-proponyl)-2H-1,4-benzoxazin-6-yl]-4,5,6,7-tetrahydro-1Hisoindole-1,3(2H)-dione in or on the raw agricultural commodities: Berry, low growing, subgroup 13-07G at 0.07 parts per million (ppm); brassica, head and stem, subgroup 5A at 0.02 ppm; caneberry, subgroup 13-07A at 0.40; citrus oil at 0.1 ppm; clover, forage at 0.02 ppm; clover, hay at 0.15 ppm; fruit, citrus group 10-10 at 0.02 ppm; fruit, pome group 11-10 at 0.02 ppm; fruit, small vine climbing, except fuzzy kiwifruit, subgroup 13-07F at 0.02 ppm; fruit, stone, group 12-12 at 0.02 ppm; nut, tree group 14-12 at 0.02 ppm; onion, bulb subgroup 3-07A at 0.02 ppm and vegetable, fruiting group 8-10 ppm at 0.02 ppm. Adequate enforcement methodology (gas chromatography/nitrogen-phosphorus detection (GC/NPD) method, Valent Method RM30-A-3) is available to enforce the tolerance expression. Contact: RD.

    PP 5F8400. EPA-HQ-OPP-2015-0695. Isagro S.P.A. (d/b/a Isagro USA, Inc.) 430 Davis Drive, Suite 240, Morrisville, NC 27560, requests to establish a tolerance in 40 CFR part 180 for residues of the fungicide tetraconazole in or on vegetable, cucurbit group 9 at 0.15 parts per million (ppm) and vegetable, fruiting group 8-10 at 0.30 ppm. The capillary gas chromatography with electron capture detector (GC/ECD)) as well as a QuEChERS multi-residue method (LC/MS-MS detection) is used to measure and evaluate the chemical tetraconazole. Contact: RD.

    PP 5F8404. EPA-HQ-OPP-2013-0226. Bayer CropScience LP, 2 T.W. Alexander Drive, P.O. Box 12014, Research Triangle Park, NC 27709, requests to establish a tolerance in 40 CFR part 180 for residues of the insecticide, flupyradifurone, in or on abiu at 0.6 parts per million (ppm); akee apple at 0.6 ppm; avocado at 0.6 ppm; bacury at 0.6 ppm; banana at 0.6 ppm; binjai at 0.6 ppm; caneberry, subgroup 13-07A at 5 ppm; canistel at 0.6 ppm; cilantro, fresh leaves at 30 ppm; cupuacú at 0.6 ppm; etambe at 0.6 ppm; jatobá at 0.6 ppm; kava, fresh leaves at 40 ppm; kava, roots at 0.9 ppm; kei apple at 0.6 ppm; langstat at 0.6 ppm; lanjut at 0.6 ppm; lucuma at 0.6 ppm; mabolo at 0.6 ppm; mango at 0.6 ppm; mangosteen at 0.6 ppm; paho at 0.6 ppm; papaya at 0.6 ppm; pawpaw, common at 0.6 ppm; pelipisan at 0.6 ppm; pequi at 0.6 ppm; pequia at 0.6 ppm; persimmon, american at 0.6 ppm; plantain at 0.6 ppm; pomegranate at 0.6 ppm; poshte at 0.6 ppm; quinoa at 3 ppm; quandong at 0.6 ppm; sapote at 0.6 ppm; sataw at 0.6 ppm; screw-pine at 0.6 ppm; star apple at 0.6 ppm; stone fruit, stone group 12-12 at 1.5 ppm, tamarind-of-the-Indies at 0.6 ppm; and wild loquat at 0.6 ppm. High performance liquid chromatography-electrospray ionization/tandem mass spectrometry (HPLC/MS/MS) is used to measure and evaluate the chemical flupyradifuron. Contact: RD.

    PP 5F8406. EPA-HQ-OPP-2015-0727. Arysta LifeScience North America, LLC 15401 Weston Parkway, Suite 150, Cary, North Carolina 27513, requests to establish a tolerance in 40 CFR part 180 for residues of the fungicide fluoxastrobin in or on avocado at 0.9 parts per million (ppm), barley, grain at 0.4 ppm; barley, hay at 15 ppm; barley, straw at 15 ppm, rapeseed subgroup 20A at 0.8 ppm, and dried shelled pea and bean (except soybean) subgroup 6C at 0.2 ppm. The method comprises microwave solvent extraction followed by a solid phase extraction clean up and quantification by high performance liquid chromatography with tandem mass spectrometric detection (HPLC/MS/MS) is used to measure and evaluate the chemical fluoxastrobin. Contact: RD.

    PP 5F8412. EPA-HQ-OPP-2015- 0795. Gowan Company, P.O. Box 5569, Yuma, AZ, 85366-5569, requests to establish tolerances in 40 CFR part 180 for residues of the insecticide, hexythiazox, in or on bermudagrass, forage at 40.0 parts per million (ppm); and bermudagrass, hay at 70.0 ppm. High performance liquid chromatography (HPLC) method using mass spectrometric detection (LC-MS/MS) is proposed for enforcement purposes. Contact: RD.

    PP 5F8413. EPA-HQ-OPP-2015- 0797. Gowan Company, P.O. Box 5569, Yuma, AZ, 85366-5569, requests to establish tolerances in 40 CFR part 180 for residues of the insecticide hexythiazox, in or on beet, sugar, dried pulp at 0.60 parts per million (ppm); beet, sugar, molasses at 0.21 ppm; beet, sugar, roots at 0.15 ppm and beet, sugar, tops at 1.5 ppm. High performance liquid chromatography (HPLC) method using mass spectrometric detection (LC-MS/MS) is proposed for enforcement purposes. Contact: RD.

    PP 5F8414. EPA-HQ-OPP-2015-0791. Valent U.S.A. Corporation, 1600 Riviera Avenue, Suite 200, Walnut Creek, CA 94596 requests to establish a tolerance in 40 CFR 180.627 for residues of the fungicide, fluopicolide in or on potato chips 0.1 at parts per million (ppm) and potato flakes at 0.15 ppm. Practical analytical methods for detecting and measuring levels of fluopicolide and its metabolites have been developed, validated, and submitted for all appropriate plant and animal matrices. Contact: RD.

    PP 5F8415. EPA-HQ-OPP-2015-0820. Geo Logic Corporation, P.O. Box 3091, Tequesta, FL 33409, requests to establish a tolerance in 40 CFR 180.337 for residues of the bactericide/fungicide oxytetracycline in or on fruit, citrus group 10-10 at 0.01 parts per million (ppm). The reversed-phase liquid chromatography with detection by MS/MS spectrometry (LC-MS/MS) is used to measure and evaluate the chemical oxytetracycline. Contact: RD.

    PP 5F8429. EPA-HQ-OPP-2016-0029. Gowan Company, P.O. Box 5569, Yuma, AZ 85366-5569, requests to establish a tolerance in 40 CFR part 180 for residues of the miticide/insecticide fenazaquin, [3-[2-[4-(1,1,-dimethylethyl) phenyl] ethoxy] quinazoline] in or on the raw commodity for nut, tree group 14-12 at 0.02 parts per million (ppm). The LC/MS/MS with positive-ion electrospray ionization tandem mass spectrometry is used to measure and evaluate the chemical fenazaquin. Contact: RD.

    PP 5E8439. EPA-HQ-OPP-2016-0066. Dow AgroSciences, LLC, 9330 Zionsville Road Indianapolis, IN 46268, requests to establish a tolerance in 40 CFR part 180 for residues of the herbicide pyroxsulam, in or on the cereal crops: teff at 0.06 parts per million (ppm); teff, forage at 0.01 ppm; teff, grain at 0.03 ppm; teff, hay at 0.01 ppm; and teff, straw at 0.01 ppm. The Dow AgroSciences Method GRM 04/17 is used to measure and evaluate the chemical residues of pyroxsulam in wheat commodities. Contact: RD.

    PP 6F8442. EPA-HQ-OPP-2016-0029. Gowan Company, P.O. Box 5569, Yuma, AZ 85366-5569, requests to establish a tolerance in 40 CFR part 180 for residues of the miticide/insecticide fenazaquin, [3-[2-[4-(1,1,-dimethylethyl) phenyl] ethoxy] quinazoline] in or on the raw commodity for hops at 30 parts per million (ppm). The LC/MS/MS with positive-ion electrospray ionization tandem mass spectrometry is used to measure and evaluate the chemical fenazaquin. Contact: RD.

    Amended Tolerances

    PP 5F8351. EPA-HQ-OPP-2015-0478. Makhteshim Agan of North America, Inc. (d/b/a ADAMA), 3120 Highwoods Blvd. Suite 100, Raleigh, NC 27604, requests to amend 40 CFR 180.680 for residues of the nematicide fluensulfone [5-chloro-2-[(3,4,4-trifluoro-3-buten-1-yl)sulfonyl]thiazole], to revise the existing tolerance expression in the introductory paragraph (a) to read “Tolerances are established for residues of the nematicide fluensulfone, including its metabolites and degradates, in or on the commodities in the table below. Compliance with the tolerance levels specified below is to be determined by measuring only 3,4,4-trifluoro-but-3-ene-1-sulfonic acid.” The LC-MS/MS residue analytical method is used to measure and evaluate the chemical fluensulfone. Contact: RD.

    PP 5F8396. EPA-HQ-OPP-2015- 0796. Gowan Company, P.O. Box 5569, Yuma, AZ, 85366, requests to amend the tolerance(s) in 40 CFR 180.448 for residues of the insecticide hexythiazox in or on alfalfa, forage from 15 parts per million (ppm) to 20 ppm; and alfalfa, hay from 30 ppm to 60 ppm. High performance liquid chromatography (HPLC) using mass spectrometric detection (LC-MS/MS) analytical method is used to measure and evaluate residues of hexythiazox and its metabolites containing the PT-1-3 moiety. Contact: RD.

    PP 5E8399. EPA-HQ-OPP-2015-0658. IR-4 Project Headquarters, Rutgers, The State University of New Jersey, 500 College Road East, Suite 201 W, Princeton, NJ 08540, proposes upon establishment of tolerances referenced above under “New Tolerances” to remove existing tolerances in 40 CFR 180.568 for residues of the herbicide, flumioxazin 2-[7-fluoro-3,4-dihydro3-oxo-4-(2-proponyl)-2H-1,4-benzoxazin-6-yl]-4,5,6,7-tetrahydro-1Hisoindole-1,3(2H)-dione in or on the raw agricultural commodities: Cabbage at 0.02 ppm; cabbage, Chinese, napa at 0.02 ppm; fruit, pome group 11 at 0.02 ppm; fruit, stone, group 12 at 0.02 ppm; garlic at 0.02 ppm; grape at 0.02 ppm; nut, tree group 14 at 0.02 ppm; okra at 0.02 ppm; onion, bulb at 0.02 ppm; pistachio at 0.02 ppm; shallot bulb at 0.02 ppm; strawberry at 0.07 ppm and vegetable, fruiting group 8 at 0.02 ppm. Adequate enforcement methodology (gas chromatography/nitrogen-phosphorus detection (GC/NPD) method, Valent Method RM30-A-3) is available to enforce the tolerance expression. Contact: RD.

    New Tolerance Exemptions

    PP IN-10848. EPA-HQ-OPP-2015-0776. Jeneil Biosurfactant Company, 400 N. Dekora Woods Blvd. Saukville, WI 53080, requests to establish an exemption from the requirement of a tolerance for residues of methyl isobutyrate (CAS Reg. No. 547-63-7) when used as an inert ingredient (solvent) in pesticide formulations applied to growing crops and raw agricultural commodities after harvest under 40 CFR 180.910. The petitioner believes no analytical method is needed because it is not required for an exemption from the requirement of a tolerance. Contact: RD.

    PP IN-10850. EPA-HQ-OPP-2015-0831. Jeneil Biosurfactant Company, 400 N. Dekora Woods Blvd. Saukville, WI 53080, requests to establish an exemption from the requirement of a tolerance for residues of isobutyl isobutyrate (CAS Reg. No. 97-85-8) when used as an inert ingredient (solvent) in pesticide formulations applied to growing crops and raw agricultural commodies after harvest under 40 CFR 180.910. The petitioner believes no analytical method is needed because it is not required for an exemption from the requirement of a tolerance. Contact: RD.

    PP IN-10854. EPA-HQ-OPP-2015-0655. SciReg Inc., 12733 Director's Loop, Woodbridge, VA 22192, on behalf of Taminco US Inc., a subsidiary of Eastman Chemical Company, Two Windsor Plaza, Suite 400, 7450 Windsor Drive, Allentown, PA 18195, requests to establish an exemption from the requirement of a tolerance for residues of 2-pyrrolidinone, 1-butyl- (CAS Reg. No. 3470-98-2) when used as an inert ingredient (solvent/cosolvent) in pesticide formulations applied to growing crops under 40 CFR 180.920. The petitioner believes no analytical method is needed because it is not required for an exemption from the requirement of a tolerance. Contact: RD.

    PP IN-10889. EPA-HQ-OPP-2015-0858. Baker Petrolite LLC, 12645 West Airport Boulevard, Sugar Land, TX 77478, requests to establish an exemption from the requirement of a tolerance for residues of alcohols, C>14, ethoxylated (CAS Reg. No. 251553-55-6) when used as an inert ingredient in pesticide formulations under 40 CFR 180.910, 40 CFR 180.920, 40 CFR 180.930, 40 CFR 180.940(a) and 40 CFR 180.960. The petitioner believes no analytical method is needed because it is not required for an exemption from the requirement of a tolerance. Contact: RD.

    PP IN-10894. EPA-HQ-OPP-2016-0038. Michelman, 9080 Shell Road, Cincinnati, OH 45236, requests to establish an exemption from the requirement of a tolerance for residues of ethylene acrylic acid copolymer with a minimum number average molecular weight (in amu) of 5,500 (CAS Reg. No. 9010-77-9) when used as an inert ingredient in pesticide formulations under 40 CFR 180.960. The petitioner believes no analytical method is needed because it is not required for an exemption from the requirement of a tolerance. Contact: RD.

    Authority:

    21 U.S.C. 346a.

    Dated: March 10, 2016. Daniel J. Rosenblatt, Acting Director, Registration Division, Office of Pesticide Programs.
    [FR Doc. 2016-05952 Filed 3-15-16; 8:45 am] BILLING CODE 6560-50-P
    FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 76 [MB Docket No. 16-42; CS Docket No. 97-80; FCC 16-18] Expanding Consumers' Video Navigation Choices; Commercial Availability of Navigation Devices AGENCY:

    Federal Communications Commission.

    ACTION:

    Proposed rule.

    SUMMARY:

    In this document, we propose new rules to empower consumers to choose how they wish to access the multichannel video programming to which they subscribe, and promote innovation in the display, selection, and use of this programming and of other video programming available to consumers. We take steps to fulfill our obligation under section 629 of the Communications Act to assure a commercial market for devices that can access multichannel video programming and other services offered over multichannel video programming systems. We propose rules intended to allow consumer electronics manufacturers, innovators, and other developers to build devices or software solutions that can navigate the universe of multichannel video programming with a competitive user interface. We also seek comment on outstanding issues related to our CableCARD rules.

    DATES:

    Submit comments on or before April 15, 2016. Submit reply comments on or before May 16, 2016. Written comments on the Paperwork Reduction Act proposed information collection requirements must be submitted by the public, Office of Management and Budget (OMB), and other interested parties on or before May 16, 2016.

    ADDRESSES:

    In addition to filing comments with the Secretary, a copy of any comments on the Paperwork Reduction Act (PRA) information collection requirements contained herein should be submitted to the Federal Communications Commission via email to [email protected] and to Nicholas A. Fraser, Office of Management and Budget, via email to [email protected] or via fax at 202-395-5167.

    FOR FURTHER INFORMATION CONTACT:

    For additional information on this proceeding, contact Brendan Murray, [email protected], of the Media Bureau, Policy Division, (202) 418-1573. Contact Cathy Williams, [email protected], (202) 418-2918 concerning PRA matters.

    SUPPLEMENTARY INFORMATION:

    Congress adopted section 629 of the Communications Act in 1996, and since then each era of technology has brought unique challenges to achieving Section 629's goals. When Congress first directed the Commission to adopt regulations to assure a commercial market for devices that can access multichannel video programming, the manner in which MVPDs offered their services made it difficult to achieve the statutory purpose. Cable operators used widely varying security technologies, and the best standard available to the Commission was the hardware-based CableCARD standard—which the cable and consumer electronics industries jointly developed—that worked only with one-way cable services. In 2010, the Commission sought comment on a new approach that would work with two-way services, but still only a hardware solution would work because software-based security was not sophisticated enough to meet content companies' content protection demands. This concept, called “AllVid,” would have allowed electronics manufacturers to offer retail devices that could access multichannel video programming, but would have required all operators to put a new device in the home between the network and the retail or leased set-top box. Now, as MVPDs move to Internet Protocol (“IP”) to deliver their services and to move content throughout the home, those difficulties are gone. Today, MVPDs provide “control channel” data that contains (1) the channels and programs they carry, (2) whether a consumer has the right to access each of those channels and programs, and (3) the usage rights that a consumer has with respect to those channels and programs. Many MVPDs already use Internet Protocol (“IP”) to provide this control channel data. Moreover, most MVPDs have coalesced around a few standards and specifications for delivery of the video content itself, and many have progressed to sending content throughout the home network via IP. This standardization and increasing reliance on IP allows for software solutions that, with ground rules to ensure a necessary degree of convergence, will make it easier to finally fulfill the purpose of Section 629.

    The regulatory and technological path to this proceeding reflects a long history. It begins with the Telecommunications Act of 1996, when Congress added Section 629 to the Communications Act. Section 629 directs the Commission to adopt regulations to assure the commercial availability of devices that consumers use to access multichannel video programming and other services offered over multichannel video programming networks. Section 629 goes on to state that these devices should be available from “manufacturers, retailers, and other vendors not affiliated with any multichannel video programming distributor.” It also prohibits the Commission from adopting regulations that would “jeopardize security of multichannel video programming and other services offered over multichannel video programming systems, or impede the legal rights of a provider of such services to prevent theft of service.” In enacting the section, Congress pointed to the vigorous retail market for customer premises equipment used with the telephone network and sought to create a similarly vigorous market for devices used with services offered over MVPDs' networks.

    The Commission first adopted rules to implement Section 629 in 1998, just as “the enormous technological change resulting from the movement from analog to digital communications [was] underway.” The Commission set fundamental ground rules for consumer-owned devices and access to services offered over multichannel video programming systems. The rules established (1) manufacturers' right to build, and consumers' right to attach, any non-harmful device to an MVPD network, (2) a requirement that MVPDs provide technical interface information so manufacturers, retailers, and subscribers could determine device compatibility, (3) a requirement that MVPDs make available a separate security element that would allow a set-top box built by an unaffiliated manufacturer to access encrypted multichannel video programming without jeopardizing security of programming or impeding the legal rights of MVPDs to prevent theft of service, and (4) the integration ban, which required MVPDs to commonly rely on the separated security in the devices that they lease to subscribers. The Commission did not initially impose a specific technical standard to achieve these rules, but instead adopted rules that relied “heavily on the representations of the various interests involved that they will agree on relevant specifications, interfaces, and standards in a timely fashion.”

    In December 2002, the cable and consumer electronics industries adopted a Memorandum of Understanding regarding a one-way plug-and-play “CableCARD” compatibility standard for digital cable. In October 2003, the Commission adopted the CableCARD standard as part of the Commission's rules, and consumer electronics manufacturers brought unidirectional CableCARD-compatible devices to market less than a year later. At least six million (and by one report, over 15 million) CableCARD devices were built and shipped, but the nine largest incumbent cable operators have deployed only 618,000 CableCARDs for use in consumer-owned devices. These rules drove innovations that consumers value greatly today: High-definition digital video recording, competitive user interfaces that provided more program information to viewers, the ability to set recordings remotely, the incorporation of Internet content with cable content, and automatic commercial skipping on cable content. Throughout the mid-to-late 2000s, cable operators increasingly transitioned their systems to digital and introduced interactive video services such as video-on-demand and content delivery methods such as switched digital video. The Commission's CableCARD rules and the Memorandum of Understanding did not prescribe methods for retail devices to access those interactive services, and therefore retail CableCARD devices could not access cable video-on-demand services. Moreover, cable operators generally offered poor CableCARD support, which made it much more difficult for consumers to set up a retail device than a leased device.

    In 2010, the Commission took steps to remedy problems with the CableCARD regime. The Commission adopted additional CableCARD-related rules to improve cable operator support for retail CableCARD devices. The Commission also sought comment on a successor technology in the form of a Commission-designed, standardized converter box that would be designed to allow “any electronics manufacturer to offer smart video devices at retail that can be used with the services of any MVPD and without the need to coordinate or negotiate with MVPDs.” The Commission sought comment on this AllVid concept in a Notice of Inquiry but ultimately decided not to propose rules to mandate it.

    In late 2014, Congress passed STELAR. Section 106 of that law had two main purposes: First, it eliminated the integration ban as of December 4, 2015, and second, it directed the Chairman of the Commission to appoint an advisory committee of technical experts to recommend a system for downloadable security that could advance the goals of section 629. The Chairman appointed 19 members to the Downloadable Security Technical Advisory Committee (“DSTAC”), and the committee submitted its report to the Commission on August 28, 2015. The DSTAC Report gave an account of the increasing number of devices on which consumers are viewing video content, including laptops, tablets, phones, and other “smart,” Internet-connected devices. The DSTAC Report pointed to two main reasons for this shift: (1) Software-based applications have made it easier for content providers to tailor their services to run on different hardware, and (2) there are an increasing number of software-based content protection systems that copyright holders are comfortable relying on to protect their content. The Media Bureau released a Public Notice seeking comment on the DSTAC Report on August 30, 2015. The DSTAC Report and comments that we received in response to it underlie and inform our Notice of Proposed Rulemaking.

    The DSTAC Report offered two proposals regarding the non-security elements and two proposals regarding the security elements of a system that could implement section 629. For the non-security elements, the DSTAC Report presented both an MVPD-supported proposal that is based on proprietary applications and would allow MVPDs to retain control of the consumer experience, and a consumer electronics-supported proposal that is based on standard protocols that would let a competing device or application offer a consumer experience other than the one the MVPD offers. With respect to security, the DSTAC Report presented both an MVPD-supported proposal based on digital rights management (similar to what Internet-based video services use to protect their video content), and a consumer electronics-supported proposal based on link protection (similar to how content is protected as it travels from a Blu-ray player to a television set).

    In this Notice of Proposed Rulemaking, we propose rules that are intended to assure a competitive market for equipment, including software, that can access multichannel video programming. A recent news report on this topic summarized the issue succinctly: “some consumer advocates wonder why, if you do want a set-top box, you can't just buy one as easily as you'd buy a cell phone or TV for that matter.” Before MVPDs transitioned to digital service, it was easy for consumers to buy televisions that received cable service without the need for a set-top box. In 1996, Congress recognized that we were on the cusp of a digital world with diverging system architectures. To address this, Congress adopted Section 629, and the Commission implemented that section of the statute by separating the parts of cable system architectures that were not consistent among systems into a module called a CableCARD that cable operators could design to work with their system-specific technology. This module converted system-specific aspects into a standardized interface; this standardized interface allowed a manufacturer to build a single device that could work with cable systems nationwide, despite their divergent technologies. Today, the world is converging again, this time around IP to provide control channel data, in some cases also using IP for content delivery over MVPD systems, and in many cases using IP for content delivery throughout the home. Standards will allow us to develop, and MVPDs to follow, ground rules about compatibility that are technology-neutral: The rules will allow MVPDs to upgrade their networks freely and any changes that a navigation device needs to conform to those changes can be supplied via software download rather than upgrading consumers' hardware. The ground rules we propose in this Notice of Proposed Rulemaking are designed to let MVPD subscribers watch what they pay for wherever they want, however they want, and whenever they want, and pay less money to do so, making it as easy to buy an innovative means of accessing multichannel video programming (such as an app, smart TV, or set-top box) as it is to buy a cell phone or TV.

    As discussed below, our proposed rules are based on three fundamental points. First, the market for navigation devices is not competitive. Second, the few successes that developed in the CableCARD regime demonstrate that competitive navigation—that is, competition in the user interface and complementary features—is essential to achieve the goals of Section 629. Third, entities that build competitive navigation devices, including applications, need to be able to build those devices without seeking permission from MVPDs, because MVPDs offer products that directly compete with navigation devices and therefore have an incentive to withhold permission or constrain innovation, which would frustrate Section 629's goal of assuring a commercial market for navigation devices.

    The Need for Rules. Today, consumers have few alternatives to leasing set-top boxes from their MVPDs, and the vast majority of MVPD subscribers lease boxes from their MVPD. In July 2015, Senators Ed Markey and Richard Blumenthal reported statistics that they gathered from a survey of large MVPDs: “approximately 99 percent of customers rent[ ] their set-top box directly from their pay-TV provider, [and] the set-top box rental market may be worth more than $19.5 billion per year, with the average American household spending more than $231 per year on set-top box rental fees.” There is evidence that increasingly consumers are able to access video service through proprietary MVPD applications as well. According to NCTA, consumers have downloaded MVPD Android and iOS applications more than 56 million times, more than 460 million IP-enabled devices support one or more MVPD applications, and 66 percent of them support applications from all of the top-10 MVPDs. These statistics show, however, that almost all consumers have one source for access to the multichannel video programming to which they subscribe: The leased set-top box, or the MVPD-provided application. Therefore, we tentatively conclude that the market for navigation devices is not competitive, and that we should adopt new regulations to further Section 629. We invite comment on this tentative conclusion.

    Certain MVPD commenters argue that the market for devices is competitive and that we need not adopt any new regulations to achieve Section 629's directive. They argue that the popularity of streaming devices such as Amazon Fire TV, AppleTV, Chromecast, Roku, assorted video game systems, and mobile devices that can access over-the-top services such as Netflix, Amazon Instant Streaming, and Hulu, shows that Congress's goals in section 629 have been met. We disagree. With certain limited exceptions, it appears that those devices are not “used by consumers to access multichannel video programming,” and are even more rarely used as the sole means of accessing MVPDs' programming. We seek comment on this point. Which MVPDs allow their subscribers to use these devices as their sole means of accessing multichannel video programming? We seek specific numbers from MVPDs on the number of and percentage of their subscribers who use such devices as their sole means of accessing multichannel video programming without any MVPD-owned equipment in the subscriber's home. How do these numbers compare to other commercial markets for consumer electronics?

    MVPDs may have several incentives for maintaining control over the user interface through which consumers access their multichannel video programming service, but for the reasons we provide below, we believe that the Act requires competitive navigation that would allow third parties to develop innovative ways to access multichannel video programming. We seek comment on those incentives. For example, how do MVPDs profit from their control of the user interface? Do MVPDs track consumer viewing habits, and if so, do they profit in any way as a result of that tracking (for example, by using the information to sell advertising or selling the information to ratings analytics companies)? What are the profit margins for selling that data? How long does a typical consumer lease a MVPD set-top box before it is replaced? What are MVPDs' profit margins on set-top boxes? Do MVPDs leverage their user interfaces to sell other services offered over multichannel video programming systems, e.g. home security? Do MVPDs offer integrated search across their multichannel video programming and other unaffiliated video services, and if not why not?

    In addition, in today's world a retail navigation device developer must negotiate with MVPDs to get permission to provide access to the MVPD's multichannel video programming, on the MVPD's terms. These business-to-business arrangements are a step in the right direction for consumers because the arrangements have increased the universe of devices they can use to receive service. The arrangements have not assured a competitive retail market for devices from unaffiliated sources as required by section 629 because they do not always provide access to all of the programming that a subscriber pays to access, and may limit features like recording. In other words, these business-to-business arrangements—typically in the form of proprietary apps—do not offer consumers viable substitutes to a full-featured, leased set-top box. Moreover, these relationships are purely at the discretion of the MVPD and, to date, have only provided access to the MVPD's user interface rather than that of the competitive device.

    Some argue that these business-to-business deals are essential to ensure that the few independent, diverse programmers that currently exist can continue to survive because they ensure that those programmers can rely on the channel placement and advertising agreements that they have contracted for with the MVPD. We disagree with this assertion, and believe that competition in interfaces, menus, search functions, and improved over-the-top integration will make it easier for consumers to find and watch minority and special interest programming. In addition, our goal is to preserve the contractual arrangements between programmers and MVPDs, while creating additional opportunities for programmers, who may not have an arrangement with an MVPD, to reach consumers. We seek comment on this analysis.

    We also seek specific comment on the process that an MVPD uses to decide whether to allow such a device to access its services. Have retail navigation device developers asked MVPDs to develop applications for their devices and been denied? Have MVPDs asked navigation device developers to carry their applications and been denied? Do programmers prohibit MVPDs from displaying their programming on certain devices? If so, what are the terms of those prohibitions? Should the Commission ban such terms to assure the commercial availability of devices that can access multichannel video programming, and under what authority? Are “premium features and functions” of devices such as televisions and recording devices limited due to “cable scrambling, encoding, or encryption technologies?” If so, could we adopt the rules we propose below pursuant to our authority under Section 624A of the Act?

    As noted above, it appears that consumers have downloaded proprietary MVPD applications many times; we seek comment on whether consumers actually use those applications to access multichannel video programming. Section 629 directs us to adopt regulations to assure the commercial availability of “equipment used by consumers to access multichannel video programming.” MVPDs argue that their proprietary applications are used by consumers to access multichannel video programming; to better evaluate this argument, we seek further comment on usage rates of those proprietary applications. What percentage of consumers use MVPD applications to view programming one month after downloading an application? How many hours per month, on average, does a consumer use an MVPD application to view programming, compared to consumers' use of leased boxes? How many MVPDs make their full channel lineups available via applications? Do any MVPDs allow consumers to access multichannel video programming, beyond unencrypted signals, without leasing or purchasing some piece of MVPD equipment? How many consumers that lease a set-top box also use an MVPD application? How many consumers view multichannel video programming only via a proprietary MVPD application, without leasing a box? Are proprietary MVPD applications available on all platforms and devices? Or do MVPDs enter into agreements with a limited number of manufacturers or operating system vendors?

    Section 629 and DBS Providers. In the First Plug and Play Report and Order, the Commission exempted DBS providers from our foundational separation of security requirement because “customer ownership of satellite earth stations receivers and signal decoding equipment has been the norm in the DBS field.” This meant that DBS was also exempt from most of the rules that the Commission adopted in the Second Plug and Play Order. Unfortunately, in the intervening years the market did not evolve as we expected; in fact, from a navigation device perspective, it appears that the market for devices that can access DBS multichannel video programming has devolved to one that relies almost exclusively on equipment leased from the DBS provider. Accordingly, to implement the requirements of section 629 fully, we tentatively conclude that any regulations we adopt should apply to DBS. We seek comment on this tentative conclusion. We also seek comment on the availability of DBS equipment at retail. Has the state of the marketplace changed since 1998, when the Commission had observed an “evolving” competitive market for DBS equipment and, if so, to what extent? In addition to our authority under section 629, we seek comment on our authority under section 335 to adopt any of the rules we propose below or any other rules related to competition in the market for devices that can access DBS multichannel video programming, which would serve the public interest. Finally, we recognize the “weirdness of satellite” that the DSTAC emphasized in this context because the DBS systems cannot assume that bidirectional communication is available in all cases, and accordingly we seek comment on differences in DBS delivery or system architecture that should inform our proposed rules set forth below.

    Authority. We tentatively conclude that the Commission has legal authority to implement our proposed rules. Section 629 of the Act, entitled “Competitive Availability of Navigation Devices,” directs the Commission to “adopt regulations to assure the commercial availability . . . of converter boxes, interactive communications equipment, and other equipment used by consumers to access multichannel video programming and other services offered over multichannel video programming systems, from manufacturers, retailers, and other vendors not affiliated with any multichannel video programming distributor.” We propose to interpret the terms “manufacturers, retailers, and other vendors” broadly to include all hardware manufacturers, software developers, application designers, system integrators, and other such entities that are not affiliated with any MVPD and who are involved in the development of navigation devices or whose products enable consumers to access multichannel video programming over any such device. We believe a broad interpretation is necessary to ensure that these third parties are provided the information they need from MVPDs to facilitate the commercial development of competing navigation technologies in order to fulfill the goals of section 629.

    The Act does not define the terms “navigation device” or “interactive communications equipment, and other equipment,” but we believe that Congress intended the terms to be far broader than conventional cable boxes or other hardware alone; Section 629 is plainly written to cover any equipment used by consumers to access multichannel video programming and other services, and software features have long been essential elements of such equipment. Exercising our authority to interpret ambiguous terms in the Communications Act, we tentatively conclude that these terms include both the hardware and software (such as applications) employed in such devices that allow consumers to access multichannel video programming and other services offered over multichannel video programming systems. We believe this interpretation best serves the intent of Congress as reflected in the legislative history, which directs, among other things, that we “should take cognizance of the current state of the marketplace.” In today's marketplace, “navigation devices”—i.e., interactive communications equipment and other equipment—include both hardware and software technologies. Certain functions can be performed interchangeably by either hardware, software, or a combination of both. Congress recognized this in the STELAR, which called for a study of downloadable software approaches to security issues previously performed in hardware. To fully and effectively implement Section 629 as Congress intended, we propose to interpret these terms to cover both the hardware and software aspects of navigation equipment. This is consistent with our interpretation of other sections of the Act that use the term “equipment”, which we have interpreted to include both hardware and software. The Commission derived its definition of the term “navigation devices” in our current rules from the text of section 629, and we propose to interpret that term consistent with both the language and intent of the statute, as described above.

    We interpret the phrase “manufacturers, retailers, and other vendors not affiliated with any multichannel video programming distributor” in section 629 to mean broadly “entities independent of MVPDs,” such that our rules must ensure the availability of Navigation Devices from entities that have no business relationship with any MVPD for purposes of providing the three Information Flows that we discuss below. We believe that this interpretation best aligns with Congressional intent, as reflected in the legislative history of the Telecommunications Act of 1996. Namely, the House Report states that the statute was intended to encourage the availability of equipment from a “variety of sources” and “various distribution sources” to assure that consumers can buy a variety of non-proprietary devices. Moreover, we do not believe that the goals of section 629 would be met if the commercial market consisted solely of Navigation Devices built by developers with a business-to-business relationship with an MVPD, because such an approach would not lead to Navigation Device developers being able to innovate independently of MVPDs. We seek comment on this interpretation. Does it take proper account of the fact that even some Navigation Device developers that rely on the three Information Flows to provide access to MVPD service may have other business relationships with MVPDs unrelated to the provision of navigation devices? Are there other interpretations that can assure a competitive market as Congress intended?

    We seek comment on this statutory analysis. Are there other sources of Commission authority to adopt the proposed rules? For example, we invite commenters to discuss the Commission's authority under Sections 624A and 335 of the Act and any other relevant statutory provisions. Alternatively, should we modify our definition of “navigation devices” to treat software on the device (such as an application) that consumers use to access multichannel video programming and other MVPD services as a “navigation device,” separate and apart from the hardware on which it is running? For example, we seek comment on whether we should add a sentence to our definition of “navigation devices” that states, “This term includes software or hardware performing the functions traditionally performed in hardware navigation devices.” Would such a modification be consistent with our statutory directive under section 629 to “adopt regulations to assure the commercial availability . . . of converter boxes, interactive communications equipment, and other equipment” used by consumers to access multichannel video programming and other services offered over MVPD systems? What implications would modification of our definition of “navigation devices” in this manner have on our current navigation devices rules? Would this definitional change impact Commission rules in other contexts? If so, commenters should identify the specific rule, how the definitional change would impact the rule, and whether further rule changes would be necessary to reflect the rule modification adopted in this proceeding. For example, would such a modification alter the accessibility obligations of device manufacturers and software developers and, if so, in what manner?

    Proposals. As discussed above, we do not believe that the current marketplace provides the “commercial availability” of competitive navigation devices by manufacturers, retailers, and other vendors not affiliated with any MVPD that can access multichannel video programming within the meaning of section 629. Given our experience to date, we believe that Section 629 cannot be satisfied—that is, we cannot assure a commercial market for devices that can access multichannel video programming—unless companies unaffiliated with an MVPD are able to offer innovative user interfaces and functionality to consumers wishing to access that multichannel video programming. This interpretation is in line with our current rules, which led to the creativity and consumer benefits of the CableCARD regime. We also believe that the goals of section 629 will not be met absent Commission action, given MVPDs' incentive to limit competition. As we begin to craft rules that will meet our 629 obligations, there are seven objectives that seem paramount to our effort.

    First, consumers should be able to choose how they access the multichannel video programming to which they subscribe (e.g., through the MVPD-provided user interface on an MVPD-provided set-top box or app, through a set-top box offered by an unaffiliated vendor, or through an application or search interface offered by an unaffiliated vendor on a device such as a tablet or smart TV). We propose a rule to define these “Navigable Services” as an MVPD's multichannel video programming (including both linear and on-demand programming), every format and resolution of that programming that the MVPD sends to its own devices and applications, and Emergency Alert System (EAS) messages, because we tentatively conclude that these elements are what comprise “multichannel video programming” as that term appears in section 629. We seek comment on this definition and whether there is information beyond the multichannel video programming and EAS messages that are essential parts of “multichannel video programming and other services offered over multichannel video programming systems” that a navigation system needs to access and that we should include in the definition. For example, if an MVPD offers a “cloud recording” service that allows consumers to record programs and store them remotely, should that cloud recording service be a “Navigable Service”? We seek comment on how to define “MVPD service.”

    Second, we recognize that the few successful CableCARD devices all have something in common: They provide user interfaces that compete with the user interfaces MVPD-provided set-top boxes render. Therefore, MVPDs and unaffiliated vendors must be able to differentiate themselves in order to effectively compete based on the user interface and complementary features they offer users (e.g., integrated search across MVPD content and over-the-top content, suggested content, integration with home entertainment systems, caller ID, and future innovations).

    Third, unaffiliated vendors must be able to build competitive navigation devices, including applications, without first obtaining approval from MVPDs or organizations they control. Senators Markey and Blumenthal found that MVPDs take in approximately $19.5 billion per year in set-top box lease fees, so MVPDs have a strong financial incentive to use an approval process to prevent development of a competitive commercial market and continue to require almost all of their subscribers to lease set-top boxes.

    Fourth, unaffiliated vendors must implement content protection to ensure that the security of MVPD services is not jeopardized, and must respect licensing terms regarding copyright, entitlement, and robustness. This will ensure parity between MVPD-provided and competitive navigation devices.

    Fifth, our rules should be technology neutral, permitting both software (e.g., cloud delivery) and hardware solutions, and not impede innovation. This will ensure that consumers will not be forced to use outdated, power-hungry hardware to receive multichannel video programming services.

    Sixth, our rules should allow consumers to use the same device with different MVPDs throughout the country. Device portability will encourage MVPD competition because consumers will be able to change their video service providers without purchasing new equipment.

    Finally, our rules should not prescribe a particular solution that may impede the MVPD industry's technological progress. We seek comment on these seven objectives, their appropriateness, and in particular their relative importance.

    Based on our tentative conclusion that the market for navigation devices is not competitive, with the above objectives in mind, we propose rules that will assure a competitive market for devices that can access multichannel video programming without jeopardizing security of the programming or an MVPD's ability to prevent theft of service, as section 629 requires. Like the authors of the DSTAC Report, we split our discussion of these proposals into sections regarding the non-security and security elements of multichannel video programming services.

    The rules we propose are intended to address a fundamental feature of the current market for multichannel video programming services, namely the “wide diversity in delivery networks, conditional access systems, bi-directional communication paths, and other technology choices across MVPDs (and even within MVPDs of a similar type).” In 1998, the Commission concluded that it could address this technological diversity in one of two ways, either via complex devices, or via translation of those diverse network technologies into a standardized format. This analysis stands seventeen years after it was adopted. We do not wish to impose a single, rigid, government-imposed technical standard on the parties, but we understand that it would be impossible to build widely used equipment without some standardization. Therefore, as explained further below, we propose to allow MVPDs to choose the specific standards they wish to use to make their services available via competitive navigation devices or solutions, so long as those standards are in a published, transparent format that conforms to specifications set by an open standards body. We also tentatively conclude that we should require MVPDs to comply with the rules we propose two years after adoption. We seek comment on this tentative conclusion.

    Non-Security Elements: Service Discovery, Entitlement, and Content Delivery. We propose an approach to non-security elements that balances the interests expressed by the members of the DSTAC and commenters who filed in response to the DSTAC Report. Under this approach, we will require MVPDs to provide Service Discovery, Entitlement, and Content Delivery information (the “Information Flows”) in standardized formats that the MVPD chooses. Our proposal is based on the tentative conclusion that the Information Flows are necessary to ensure that developers that are not affiliated with an MVPD can develop navigation devices, including software, that can access multichannel video programming in a way that will assure a commercial market. We believe that this proposed requirement is the least burdensome way to assure commercial availability of navigation devices (the specifications necessary to provide these Information Flows appear to exist today) and is consistent with our prior rules. Moreover, this approach is technology neutral—the Commission would not dictate the MVPD's decision whether to rely on hardware or software to make the Information Flows available. Therefore, the proposed approach would provide each MVPD with flexibility to choose the standard that best aligns with its system architecture. It would also give unaffiliated entities access to the Information Flows in a published, transparent, and standardized format so that those entities would understand what information is available to them. We believe that this is the best approach because the proposal does not require the Commission to prescribe or even approve the standards so long as the Information Flows are available. A benefit of this approach is that affected industries will be able to evolve as technology improves.

    Under our proposed rule, we would require each MVPD to provide Service Discovery Data, Entitlement Data, and Content Delivery Data for its “Navigable Services” in published, transparent formats that conform to specifications set by open standards bodies. Under this proposal, we would require MVPDs to provide these Information Flows in a manner that does not restrict competitive user interfaces and features. We seek comment below on this proposed rule and on our proposed definitions of the terms (1) Service Discovery Data, (2) Entitlement Data, (3) Content Delivery Data, and (4) Open Standards Body.

    We base these proposed rules on three main points from the DSTAC Report related to non-security elements that we find compelling. First, we agree with the Competitive Navigation advocates that developers need the Information Flows in a standardized format to encourage development of competitive, technology-neutral solutions for competitive navigation. We also agree with the Proprietary Applications advocates, however, that providing MVPDs with flexibility, where it will not impair the competitive market, will encourage and support innovation. Significantly, consistent with a major point of agreement in the DSTAC Report, these proposed rules do not require MVPDs to “commonly rely” on the Information Flows for their own navigation devices, so they will not need to replace the devices that they currently provide their subscribers. We seek comment below on our proposed definitions of these three Information Flows. In particular, we seek comment on how detailed our definitions should be; that is, will standards-setting bodies define the details of what information should be in the Information Flows, sufficient to assure a commercial market for navigation systems and meet our regulatory goals? Should we define this with the same amount of detail proposed in the DSTAC Report? Are the definitions we propose appropriate for all MVPDs, or does the diversity in network architectures justify different definitions for traditional cable, satellite, and IP-based services?

    We propose to define Service Discovery Data as information about available Navigable Services and any instructions necessary to request a Navigable Service. We tentatively conclude that the Service Discovery Data must include, at a minimum, channel information (if any), program title, rating/parental control information, program start and stop times (or program length, for on-demand programming), and an “Entertainment Identifier Register ID” so that competitive navigation devices can accurately convey to consumers the programming that is available. We seek comment on whether this is the minimum amount of information that would allow a competitive navigation device developer to build a competitive system. Should this data also include information about the resolution of the program, PSIP data, and whether the program has accessibility features such as closed captions and video description? Should this data include the program description information that the MVPD sends to its own navigation devices? For example, is it necessary for the data to include descriptive information about the advertising embedded within the program? Our tentative view is that this level is detail is not necessary. Should it include capabilities of the MVPD's Navigable Services? For instance, the DSTAC Report refers to “stream management” as important information that conveys the number of video streams that a particular system can handle based on system bandwidth, tuner resources, or fraud prevention. One approach is that the MVPD could provide unaffiliated devices with information about the maximum number of simultaneous video streams that can be watched or recorded via the Service Discovery Data flow. We seek comment on this approach.

    We propose to define Entitlement Data as information about (1) which Navigable Services a subscriber has the rights to access and (2) the rights the subscriber has to use those Navigable Services. This reflects our assumption that Entitlement Data will include, at a minimum, (1) copy control information and (2) whether the content may be passed through outputs, and if so, any information pertaining to passing through outputs such as further content protection and resolution, (3) information about rights to stream the content out-of-home, (4) the resolutions that are available on various devices, and (5) recording expiration date information, if any. What additional rights information should be included in Entitlement Data? We also propose to require that this data reflect identical rights that a consumer has on Navigation Devices that the MVPD sells or leases to its subscribers. Consumers must be able to receive and use all of content that they pay for no matter the device or application they choose, so long as that device or application protects content sufficiently. We seek comment on whether our proposed definition is flexible enough to adequately address future business models. Will consumers' rights to “access” content vary from their rights to “use” the content? For example, what if a consumer subscribes to a 4K feed of a particular channel, but the device only has content protection that is approved by the content owner to protect the high-definition feed? Will our proposed definition address that situation? How should we treat Navigable Services that can be recorded and stored remotely (i.e., “cloud recording” services)? Would our requirement that Entitlement Data be identical for competitive navigation devices and MVPD-provided navigation devices ensure that a subscriber could record content on a competitive navigation device if the MVPD allows subscribers to record and store that content remotely?

    We propose to define Content Delivery Data as data that contains the Navigable Service and any information necessary to make the Navigable Service accessible to persons with disabilities under our rules. We seek comment on this definition. Does content delivery include services other than multichannel video programming and accessibility information? For example, the DSTAC Report stated that some MVPDs provide applications that include news headlines, weather information, sports scores, and social networking. We tentatively conclude that such information is unnecessary to include in the definition of Content Delivery Data because that information is freely available from other sources on a variety of devices, whereas multichannel video programming is not. The provision of such applications may allow MVPDs and unaffiliated companies to distinguish themselves in a competitive market. In addition to the applications listed in the DSTAC Report, NCTA states that MVPDs offer services that allow subscribers “to switch between multiple sports games or events or camera angles, view[] video-on-demand with full interactive `extras,' shopping by remote, or see[] the last channels they tuned.” Is there anything in our proposed definition that would foreclose the possibility that a competitive navigation device could offer these services? We seek comment on this tentative conclusion.

    As discussed above, we propose to require MVPDs to provide the Information Flows in published, transparent formats that conform to specifications set by “Open Standards Bodies.” We seek comment on our proposed definition of Open Standards Body: A standards body (1) whose membership is open to consumer electronics, multichannel video programming distributors, content companies, application developers, and consumer interest organizations, (2) that has a fair balance of interested members, (3) that has a published set of procedures to assure due process, (4) that has a published appeals process, and (5) that strives to set consensus standards. We seek comment on whether these are the appropriate characteristics. Are there others we should consider? We believe that there is at least one body that meets this definition but invite commenters to provide examples of such bodies. We also believe that the characteristics listed in the definition would arm the Commission with an established test to judge whether an MVPD's method of delivering the three Information Flows is sufficient (in combination with the other elements of the proposal discussed in this item) to assure a retail market. The five characteristics that define an Open Standards Body would ensure that navigation system developers have input into the standards-setting process, give them confidence that their devices will be able to access multichannel video programming, and prevent them from needing to build a glut of “capacities to function with a variety of types of different systems with disparate characteristics.” We seek comment on this proposed approach.

    We seek comment on whether our proposal addresses the critiques of the Competitive Navigation approach that are set forth in the DSTAC Report, comments filed in response to that report, and recent ex partes. A consistent argument against the Competitive Navigation approach has been its emphasis on a required set of standards. The Commission has also been wary of stifling “growth, innovation, and technical developments” through regulations to implement section 629. We therefore seek comment on whether our proposed approach, which does not mandate specific standards, balances these critiques against the need for some standardization. Would this appropriately implement Congress's clear direction in section 629 to “adopt regulations to assure the commercial availability” of navigation devices “in consultation with appropriate industry standard-setting organizations”? If not, how can we achieve that Congressional directive?

    NCTA claims that the Competitive Navigation approach would take years of lengthy standards development to implement. Competitive Navigation advocates, however, filed a set of specifications for Service Discovery Data, Entitlement Data, and Content Delivery Data, largely based on DLNA VidiPath, that they claim could achieve the Competitive Navigation proposal today. They also claim that “any necessary standardization, if pursued in good faith, should take no more than a single year.” We seek comment on these views. The Competitive Navigation advocates submitted evidence that DLNA has a toolkit of specifications available. Given this evidence, we propose to require MVPDs to comply with the rules two years after adoption. We seek comment on whether the standards-setting process, if pursued in good faith, could allow MVPDs to meet that proposed implementation deadline. We seek specificity on what more work needs to be done for an Open Standards Body to develop standards for Service Discovery Data, Entitlement Data, and Content Delivery Data. Given the current toolkits of specifications for Service Discovery Data, Entitlement Data, and Content Delivery Data, is it possible for us to adopt a “fallback” or “safe harbor” set of specifications? If so, should they be those proposed by the Competitive Navigation advocates, or others? We also seek comment on any other mechanisms we can adopt to ensure that MVPDs and other interested parties cooperate in prompt development of standards.

    The DSTAC Report includes an “Implementation Analysis” prepared by opponents of the Competitive Navigation approach, arguing that it does not fully establish a method for replicating, in a competitive navigation device, all of the services that an MVPD might offer. Our proposal's grant of flexibility to MVPDs gives them the opportunity to seek and adopt standards in Open Standards Bodies that will allow such replication. We seek comment on this issue.

    Some commenters argue that the proposal constitutes compelled speech, or interference with the manner of speech of MVPDs, and thus imperils the First Amendment rights of these speakers. The Commission does not believe that the proposed rules infringe MVPDs' First Amendment rights. The proposal to require MVPDs to provide Content Delivery Data would simply require MVPDs to provide content of their own choosing to subscribers to whom they have voluntarily agreed to provide such content. The rules would not interfere in any way with the MVPD's choice of content or require MVPDs to provide such content to anyone to whom they have not voluntarily entered into a subscription agreement. Rather, the rules would simply allow the subscriber to access the programming that the MVPD has agreed to provide to it on any compliant Navigation Device. Thus, it does not seem that this aspect of the proposed rules infringes MVPDs' First Amendment rights. The proposal to require MVPDs to provide Service Discovery Data and Entitlement Data would require MVPDs to disclose accurate factual information concerning the Navigable Service and subscribers' rights to access it. Service Discovery Data is simply information about the Navigable Service, while Entitlement Data is information about the subscriber's rights to use the Navigable Service, designed to protect the service from unauthorized access. We believe that these proposed disclosure requirements would withstand scrutiny under the First Amendment. In general, government regulation of commercial speech will be found compatible with the First Amendment if it meets the criteria laid out in Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557, 566 (1980): (1) There is a substantial government interest; (2) the regulation directly advances the substantial government interest; and (3) the proposed regulation is not more extensive than necessary to serve that interest. In Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 651 (1985), the Supreme Court adopted a more relaxed standard to evaluate compelled disclosure of “purely factual and uncontroversial” information. Under the standard set forth in Zauderer, compelled disclosure of “purely factual and uncontroversial” information is permissible if “reasonably related to the State's interest in preventing deception of consumers.” The District of Columbia Circuit recently held in American Meat Institute v. U.S. Department of Agriculture, 760 F.3d 18 (D.C. Cir. 2014) (en banc), that government interests other than correcting deception can be invoked to sustain a disclosure requirement under Zauderer. Here, the proposed rules would require the disclosure of purely factual and uncontroversial information concerning the MVPD's service, which we believe would be sustained under the Zauderer and Circuit Court precedents because the disclosures are reasonably related to advancing the government interest in fostering competition in the market for devices used by consumers to access video programming. We have tentatively concluded that disclosure of this information is necessary to ensure that developers who are not affiliated with an MVPD can develop navigation devices that can access multichannel video programming services, so as to foster the commercial market in such devices envisioned by Congress. This is a policy that Congress directed the Commission to advance through the adoption of rules, and we propose to fulfill that statutory obligation in a manner that does not impermissibly infringe on MVPDs' First Amendment rights. We seek comment on this analysis.

    Finally, some commenters argue that the Competitive Navigation approach would require MVPDs to deploy “a New Operator-Supplied Box” to their subscribers. Other commenters disagree with this assertion, and state that the solution could be implemented in the cloud at the MVPD's discretion, thereby avoiding the need for new or additional equipment. We believe that our proposal does not require most MVPDs to develop or deploy new equipment, nor would it require subscribers to obtain additional or new equipment. In fact, our proposal may make it easier for MVPDs to offer cloud-based services because it gives each MVPD the flexibility to choose the standards that best achieve its goals. We seek comment on this belief. Would our proposal necessitate any changes to the MVPD's network, or would it give the MVPD the discretion to decide whether to modify its system architecture, as we intend?

    Proprietary Applications. The DSTAC's Proprietary Applications approach proposed six different methods to deliver MVPD services that would require consumers to use the MVPD's proprietary user interface. As discussed above, we have significant doubt that such an approach could assure a commercial market for navigation devices as Section 629 requires. However, we seek comment on the DSTAC's Proprietary Applications approach and whether the Proprietary Applications approach could satisfy section 629.

    We also seek comment on whether our proposed rules could achieve the benefits that the DSTAC Report's Proprietary Applications approach endeavors to achieve. One of the purported benefits of the Proprietary Applications approach is that it would provide MVPDs “diversity and flexibility.” Our proposal attempts to give MVPDs a diversity of choices and flexibility in making their Navigable Services available through competitive navigation devices, by allowing them to choose from any standard to offer the Information Flows, so long as the Information Flows are provided in a published, transparent format developed by Open Standards Bodies. Does this provide flexibility to MVPDs, while still sufficiently limiting the universe of standards such that a device could be built for a nationwide market? We seek comment on how much it would cost to build a single device that is compatible with all of the approaches listed by the Proprietary Applications advocates in the DSTAC Report. If a device were compatible with all of these Proprietary Applications approaches, would it be compatible with and able to receive all multichannel video programming services? How would this square with our statutory mandates under Sections 624A (with respect to cable operators) and 629 of the Act?

    Section 629 directs us to adopt regulations to assure a market for devices “from manufacturers, retailers, and other vendors not affiliated with any multichannel video programming distributor.” If device compatibility relies on MVPDs developing “device specific apps,” how could we assure entities that are not affiliated with the MVPD that their devices will be able to access multichannel video programming services? How would device manufacturers and consumers ensure that support for the application is not withdrawn by the MVPD without consultation with the device manufacturer and consumers? Do proprietary applications impose costs or certification processes that could, if left unchecked, thwart the mandates of Section 629? As an alternative to our proposal, could and should we require MVPDs to develop applications within a specific timeframe for each device manufacturer that requests such an application, and to support that application indefinitely? Section 629 also directs the Commission to adopt regulations “in consultation with appropriate industry standard-setting organizations.” Does this suggest that the Proprietary Applications approach proposed in the DSTAC Report, which is not entirely standards-based, is not what Congress had in mind? Are applications, as they have been deployed, ancillary to leased devices, and therefore unlikely lead to retail competition with leased devices? Are the DLNA VidiPath, RVU, DISH Virtual Joey, and Sling Media Technology Client applications “two-device” solutions that would require consumers to attach MVPD-provided equipment to a separate piece of consumer-owned hardware? What standards, protocols, or specifications exist that would allow MVPDs to offer those services without any MVPD-specific equipment inside a consumer's home, or from the cloud? Could MVPDs use those standards, protocols, or specifications if we adopt our proposal? We also seek comment on any other element of the Proprietary Applications approach.

    Proposal Regarding Security Elements. We propose that MVPDs be required to support a content protection system that is licensable on reasonable and nondiscriminatory terms, and has a “Trust Authority” that is not substantially controlled by an MVPD or by the MVPD industry. We believe this approach best balances the benefits of flexibility in content protection choices by MVPDs with the need of manufacturers to choose from a limited universe of independently controlled content protection systems. Below we describe the two alternative proposals set forth by DSTAC Working Group 3, and detail the concerns raised about each by commenters. We then discuss why we believe neither approach on its own would be sufficient to meet the Commission's goals in this proceeding, and propose a “via media” that could allow for a competitive market for innovative retail navigation devices while also affording MVPDs significant flexibility.

    DSTAC Proposals. The DSTAC's Working Group 3, which focused on security, had significant points of agreement. Most fundamentally, the group agreed that downloaded security components need to remain in the control of the MVPD, but that consumer devices could not be built to simultaneously support every proprietary content protection system. Just as in the non-security context, however, DSTAC Working Group 3 had fundamental disagreements. As summarized in the DSTAC Report, Working Group 3 proposed two alternative approaches. The first is the “HTML5” approach, sometimes described as the “DRM” approach, which “consists of MVPD/OVDs supplying media streams over HTTPS [the secure version of the protocol used to transfer data between a browser and Web site] and CE/CPE devices accessing and decrypting those media streams by supplying devices that implement the HTML5, EME, MSE and Web Crypto APIs [software permitting secure handling of the media streams by the devices].” The most vocal advocates of the HTML5 approach are MVPDs and content providers. The second approach is the “Media Server,” in which “[n]etwork security and conditional access are performed in the cloud, and the security between the cloud and retail navigation devices is a well-defined, widely used link protection mechanism such as DTCP.” The strongest advocates of the Media Server approach are consumer electronics manufacturers and consumer-facing online service providers, as well as consumer advocates. Content protection approaches similar to both proposals are in widespread use today, in other content delivery contexts. Although there are differences in how they currently manifest, the key distinction is the way in which they allow MVPDs to control access to content—their “conditional access” systems.

    The HTML5 approach allows an MVPD to rely on any digital rights management (DRM) system that it chooses to manage its content. DRM, in this context, refers to a system of content protection that is based on permissions granted from a centralized server that the content provider (in this case, the MVPD) controls. DRM prevents subscribers from using the programming they are entitled to access in unauthorized ways. If a subscriber wishes to watch a particular program, the consumer's device contacts the rights server. If the subscriber is entitled to view, record, or otherwise utilize the content, then the rights server sends a message of approval, and the device displays the content. If the subscriber is not entitled to perform that task with the content, then the rights server sends a message of disapproval, and the device does not perform the task. Traditionally, rights servers for video are not located in consumers' homes, so they do not require additional equipment in the home. Devices like smart TVs and streaming devices that are able to play programming protected by DRM must be built to conform to each DRM, however, so not every device is equipped to handle each type of DRM employed by MVPDs and other video distributors today.

    Under the Media Server approach, conditional access is managed before programming enters consumer devices, and the programming is protected when moving to consumer devices by a standardized link protection system. Link protection, in this context, is an encrypted connection between a source and a receiver. The system is built on the assumption that any device that has a certificate that deems it trustworthy, granted by a trusted authority at the time of manufacture and not subsequently revoked by the Trust Authority, will treat content as instructed by copy control information embedded in data that is transmitted with content. Like DRM, link protection prevents subscribers from using the programming to which they subscribe in unauthorized ways. This technology is how a Blu-ray player sends video to a television set when physically connected—there is no additional verification step necessary, because the television has a certificate that the Blu-ray player trusts, and the television has that certificate because it was tested by the organization that controls the bestowal of certificates at manufacture to make sure that it is a secure device. The Digital Transmission Licensing Administrator (DTLA), which was founded by Intel Corporation, Hitachi, Ltd., Panasonic Corporation, Sony Corporation, and Toshiba Corporation, is an example of an organization that hands out those certificates. All of the five major Hollywood studios have approved DTLA's link-protection technology (DTCP) for protecting content as it travels from source to receiver. Traditionally, link protection has been designed to protect content within the home as it travels from one device (for example, a Blu-ray player) to another (for example, a TV set).

    Criticism of the DSTAC Proposals. Since publication of the DSTAC Report, commenters have raised significant and compelling concerns about universally imposing either approach in the way described by its advocates. Criticism of the HTML5 approach has come from a spectrum of commenters outside the MVPD community, but has centered on concern that MVPDs could abuse their ability to fully control the conditional access system necessary to access their content. For example, the Consumer Video Choice Coalition argues that this approach would keep control in the hands of MVPDs that “have a history” of using their leverage over existing application deployment to prevent “consumers from viewing content they have paid for on the device of their choice.” The DRM licensor could be the MVPD itself, if it chose to offer only a proprietary DRM solution, obviously posing a challenge to any device manufacturer attempting to compete.

    Critics of the Media Server approach have emphasized the security difficulties potentially posed by a standardized link protection system. For example, some commenters have stated that the current version of DTCP, the industry standard, is inadequate to protect 4K and ultra-high definition content. Commenters have also argued that the technical limitations on the current version of DTCP would require MVPD-provided equipment be in the home. DTLA has filed comments responding to both of these criticisms, stating that the soon-to-be-finalized version of DTCP will be secure enough to protect the highest value content, and flexible enough to protect content delivered from the cloud. NCTA, Adobe, and ARRIS argue that, however good the link protection system, if it were industry-wide it would be a single, static point of attack that hackers could exploit, and it would be insufficiently flexible to respond to threats as they develop. NCTA argues that “[t]oday, device manufacturers and video services can choose from a competitive marketplace of content protection technologies to stay ahead of security threats.” In contrast, they claim, the Media Server proposal (specifically, as described in filings after the issuance of the DSTAC Report) would “lock[] out the whole competitive market for DRM and content protection.”

    The record reflects significant consensus about the importance of flexibility, though clear disagreements exist about what that should look like. Some of the strongest critiques are those that could apply equally to any approach imposed on all MVPDs and competitive navigation device manufacturers. The Commission has often been wary of mandating the adoption of specific technologies, rather than functional goals. Indeed, a number of commenters specifically warn against “tech mandates” in this space. Although that particular phrasing is more often heard from supporters of the HTML5 proposal, the warnings reflect a broader concern about the importance of flexibility. Public Knowledge argues that the Media Server proposal is superior because it is “versatile and flexible,” compared to the HTML5 proposal, which is “too rigid technologically.” Amazon asks us to “approach this issue from the standpoint of giving service providers technological flexibility.” Some commenters argue that the Commission should take no action given the lack of consensus on this issue. A stance of total inaction, however, would be an abdication of our responsibility under section 629. Without clear guidance from the Commission on the question of content protection, a truly competitive retail market for alternatives to MVPD set-top boxes is unlikely to develop.

    We are persuaded that the HTML5 proposal is not consistent with our goals in this proceeding. By leaving total control of security decisions to MVPDs, we would perpetuate a market in which competitors are compelled to seek permission from an MVPD in order to build devices that will work on its system. So long as MVPDs are themselves providing and profiting from navigation equipment and services, retail devices will be available only when they benefit an MVPD, not when they benefit consumers, and a truly competitive market will remain out of reach. Section 629, however, requires us to ensure that our rules do not imperil the security of the content MVPDs are carrying. At the same time, we also are not persuaded that we should require the Media Server proposal. Mandating a single shared content protection standard for every piece of MVPD content, as the Media Server proponents suggest, would create too much potential for vulnerability. It would impose no requirement (and thus, provide no guarantee) that the developer of that single shared standard develop a new, more robust version in the event of a hack.

    Security Proposal. Based on the record, we believe there is a middle path on the issue of content protection that can allow for a competitive market for innovative retail navigation devices, including software, that also affords MVPDs significant flexibility to protect their content, evolve their content protection, and respond to security concerns. Verimatrix asked the Commission not to “mandate either or even both [DSTAC proposals] as `the' standard solution.” They argued that both should be available as part of a “toolkit” of approaches available to MVPDs, a toolkit that could in fact include other approaches with the passage of time. We agree. We therefore propose that MVPDs retain the freedom to choose the content protection systems they support to secure their programming, so long as they enable competitive Navigation Devices. In order to do so, at least one content protection system they deploy, and to which they make available the three Information Flows in their entirety, must be “Compliant”—licensable on reasonable and non-discriminatory terms, and must not be controlled by MVPDs.

    We believe this approach will give MVPDs the flexibility they need to avoid creating a “single point of attack” for hackers, and the freedom to set their own pace on eliminating system-specific content security equipment in subscribers' homes, in response to the demands of the market. At the same time, we believe it will assure competitors and those considering entering the market that they can build to what is likely to be a limited number of content protection standards licensable on reasonable, non-discriminatory terms, and expect their navigation devices to work across MVPDs. They will not need to seek approval, review, or testing from the MVPDs themselves, who may have an incentive to delay or impede retail navigation devices' market entry because their leased navigation devices will remain in direct competition with the retail market for the foreseeable future. We seek comment on these assumptions.

    Accordingly, we propose that MVPDs must support at least one “compliant” conditional access system or link protection technology, although they may use others at the same time. A Compliant Security System must be licensable on reasonable, nondiscriminatory terms, and have a Trust Authority that is not substantially controlled by any MVPD or group of MVPDs. An MVPD must make available the three Information Flows in their entirety to devices using one of the Compliant Security Systems chosen by the MVPD. Such a system might include, for example, future iterations of DTCP or certain DRM systems. Commenters state that these conditional access systems could be refined to permit the full range of activity contemplated by the DSTAC, and cloud-based link protection that would minimize or eliminate the need for MVPD-provided equipment on the customer's premises. We seek comment on this proposal, including whether we need to modify our existing definition of “conditional access” in any way.

    We invite comment on some specific questions surrounding our proposal. As noted above, DTLA has stated that a pending DTCP update could fully satisfy the requirements of this proposal and the needs of MVPDs. Are there other content protection systems, particularly specific DRMs currently on the market, that are likely to be able to comply with the requirements of this approach? We recognize that this approach is likely to result in the need for competitors to support more than one Compliant Security System in their navigation devices. We believe the resulting number of Compliant Security Systems would still allow Navigation Device developers to offer competitive options, but we seek comment on this understanding. Is the term “Trust Authority” and our definition—“[an] entity that issues certificates and keys used by a Navigation Device to access Navigable Services that are secured by a given Compliant Security System”—sufficiently clear? Are there more accurate or descriptive terms? Should the entity that issues certificates be the same as the one that issues keys? Should the entity that licenses the Compliant Security System also be the Trust Authority for that system? Are the proposed restrictions on the Trust Authority of a conditional access system enough to ensure its independence from MVPDs? What criteria shall we use to determine whether a Trust Authority is not “substantially controlled” by an MVPD or by the MVPD industry?

    Are there any other critical elements necessary for this proposal to both protect MVPD content and ensure a market for competitors? Will the lack of uniformity that may result from this proposal create an undue burden on competitive entities? Could an MVPD support at least one Compliant Security System but use a non-compliant content protection system on their own Navigation Devices in a manner that favors their own Navigation Devices (e.g., by selecting a Compliant Security System that is computationally burdensome for competitive devices)? Should our rules take into account differences in device, viewing location (in-home and out-of-home), and picture quality, or will our proposed “parity” requirement, discussed below, resolve any issues in these areas? We also seek comment on whether we should instead adopt one of the DSTAC proposals, or another alternative, as the universal standard, and how such a standard could achieve our goals of secure openness in this proceeding. If another alternative is proposed, the proponent should provide sufficient detail to compare it to the proposals set out here. We also seek comment on any other aspect of security relevant to our goals in this proceeding that we should take under consideration.

    Parity. We propose to require that, in implementing the security and non-security elements discussed above, MVPDs provide parity of access to content to all Navigation Devices. This will ensure that competitors have the same flexibility as MVPDs when developing and deploying devices, including applications, without restricting the ability of MVPDs to provide different subsets of content in different ways to devices in different situations. Parity will also ensure that consumers maintain full access to content they subscribe to consistent with the access prescribed in the licensing agreements between MVPDs and programmers. In order to achieve parity, we propose three requirements. First, if an MVPD makes its programming available without requiring its own equipment, such as to a tablet or smart TV application, it must make the three Information Flows available to competitive Navigation Devices without the need for MVPD-specific equipment. Second, at least one Compliant Security System chosen by the MVPD must enable access to all the programming, with all the same Entitlement Data that it carries on its equipment, and the Entitlement Data must not discriminate on the basis of the affiliation of the Navigation Device. Third, on any device on which an MVPD makes available an application to access its programming, it must support at least one Compliant Security System that offers access to the same Navigable Services with the same rights to use those Navigable Services as the MVPD affords to its own application. We discuss these proposals below.

    The first proposed requirement is that, if an MVPD makes available an application that allows access to its programming without the technological need for additional MVPD-specific equipment, then it shall make Service Discovery Data, Entitlement Data, and Content Delivery Data available to competitive Navigation Devices without the need for MVPD-specific equipment. For example, if an MVPD makes available an iOS or Android application that allows access to its programming, it must provide the three Information Flows to all competitive Navigation Devices without requiring the use of additional MVPD-specific equipment. The ability of competitive Navigation Devices to access content without additional equipment is a concern that has been raised repeatedly in the DSTAC proceeding. We believe that our regulations would not assure a commercial market for Navigation Devices if unaffiliated manufacturers, retailers, and other vendors need to rely on MVPD-provided equipment to receive multichannel video programming and affiliated entities do not. We seek comment on that assumption. We base this proposal on the presumption that if an MVPD can securely provide the information necessary for its proprietary application to access its programming without any additional equipment, then the MVPD should be able to provide that information to non-affiliated Navigation Devices similarly without additional equipment. We seek comment on this presumption. This proposal complements the next, in that while the entirety of the Information Flows must be available to all competitive Navigation Devices in this scenario, the specifics of how each device may use the Navigable Services depend on the relevant Entitlement Data.

    We recognize that DBS providers specifically will be required to have equipment of some kind in the home to deliver the three Information Flows over their one-way network, even if they also provide programming to devices connected to the Internet via other networks. How should this fact be addressed by any rule that we adopt? Are there content protection issues that are unique to DBS providers? Are there technical issues that a Navigation Device developer would need to address when developing a solution for a DBS system? We seek comment on whether we need to create a DBS exception to our proposed rule regarding proprietary applications that deliver MVPD content without the use of additional MVPD-specific equipment. We intend for this proposal to result in MVPDs serving the vast majority of non-DBS subscribers providing the Information Flows without the presence of additional MVPD-specific equipment. What technology or standards available now or in the near future will allow this “boxless” provision? What impact will this have on MVPD systems? Will this approach require any changes for current subscribers who do not choose to seek out a competitive Navigation Device? Given the importance of flexibility to the creation of a retail market, is this proposal correctly tailored? Would it be possible to ensure nondiscriminatory provision of the Information Flows, without requiring additional MVPD-specific equipment in the home, in another way? We seek comment on this proposal.

    The second proposed requirement limits an MVPD's ability to discriminate in providing the Navigable Services to competitive Navigation Devices. We propose that at least one Compliant Security System chosen by the MVPD enables access to all resolutions and formats of its Navigable Services with the same Entitlement Data to use those Navigable Services as the MVPD affords Navigation Devices that it leases, sells, or otherwise provides to its subscribers. In addition, we propose that Entitlement Data does not discriminate on the basis of the affiliation of the Navigation Device. Our proposed rule requires MVPDs to make the Information Flows fully available to any Navigation Device using the Compliant Security System they have chosen to support. Even today, however, MVPDs that provide their service to subscribers via proprietary applications on certain equipment such as mobile devices often provide only a subset of their multichannel video programming, reserving the full service for set-top boxes or other in-home viewing options. We understand that these business decisions are made for a variety of reasons, including security and contracts with content providers. We do not believe that this practice poses a threat to the competitive market for Navigation Devices so long as it is applied in a nondiscriminatory fashion and does not interfere with the ability of competitive Navigation Device makers to develop competitive user interfaces and features. We seek comment on this view.

    Our intent is that each MVPD make available complete access to all purchased programming, on all channels, at all resolutions, on at least one Compliant Security System that it chooses to support. Thus, Navigation Devices accessing the three Information Flows via that Compliant Security System would have the same complete access as an MVPD's leased or provided set-top box in the home. As noted above, though, we recognize that MVPDs may make distinctions regarding the content delivered based on the use case of a device. We understand that use cases are generally differentiated based on screen size and in- or out-of-home viewing, and strength of content protection used. We seek comment on whether there are any other meaningful distinctions among use cases. We further understand that Entitlement Data enforces these distinctions in programming today, and we propose to permit MVPDs to continue to rely on Entitlement Data to draw those distinctions, so long as competitive Navigation Devices are subject to only the same restrictions as MVPD Navigation Devices. We seek comment on this proposed requirement. Does a prohibition on discrimination based on whether the Navigation Device developed is affiliated with the MVPD assure equitable treatment for similarly situated Navigation Devices? That is, will our proposed rule ensure that a competitive Navigation Device is able to access the same content with the same usage rights as a Navigation Device that the MVPD provides?

    The final proposed parity requirement is that, on any device on which an MVPD makes available an application to access its programming, it must support at least one Compliant Security System that offers access to the same Navigable Services with the same rights to use those Navigable Services as the MVPD affords to its own application. Our intent here is to ensure parity of access for competitive Navigation Device developers. Our proposed rules do not require MVPDs to choose Compliant Security Systems that would allow access from any device; they instead must choose one or more Compliant Security Systems to which devices can be built. It may be possible for an MVPD to abuse this flexibility, however, and choose only Compliant Security Systems that are not available on a device on which the MVPD makes available its own application to access its programming, thereby eliminating competition for access to MVPD programming via that device. The proposed rule will ensure that a competitive application can access MVPD programming on devices on which an MVPD makes available its own application, thus further ensuring a competitive market for devices including applications. We seek comment on this proposal.

    We seek comment on whether the three parity requirements described above, in conjunction with the other features of our proposal, will achieve the goal of ensuring a competitive retail market for Navigation Devices as contemplated by section 629. We particularly invite commenters to weigh in on the expected efficacy of these proposals, and their necessity in meeting the mandate of section 629. We are not proposing to impose a common reliance requirement; rather, we are striving to ensure equitable provision of content to competitive Navigation Devices, to the extent necessary to achieve a competitive retail market. We seek comment on this approach.

    Licensing and Certification. We believe that licensing and certification will play important roles under our proposed approach. MVPDs, MPAA, and companies that supply equipment to MVPDs argue that the Competitive Navigation approach could violate licensing agreements between MVPDs, content companies, and channel guide information providers. Based on our review of the DSTAC Report, the record, and the contract that CableLabs uses to license technology necessary to build a CableCARD device (DFAST), we have identified three major subject matters that pertain to licensing and certification. As set forth below, we seek comment on how licensing and certification can address (1) robustness and compliance, which ensure that content is protected as intended, (2) prevention of theft of service and harm to MVPD networks, which ensures that devices do not allow the theft of MVPD service or physically or electronically harm networks, and (3) important consumer protections in the Act and the Commission's rules. We then invite comment on alternative approaches we could take to address these issues.

    Compliance and Robustness. We seek comment on whether licensing can ensure adherence to copy control and other rights information (“compliance”) and adequate content protection (“robustness”). Section 629(b) states that “[t]he Commission shall not prescribe regulations under subsection (a) of this section which would jeopardize security of multichannel video programming and other services offered over multichannel video programming systems, or impede the legal rights of a provider of such services to prevent theft of service.” We interpret this section of the Act to require that we ensure that our regulations do not impede robustness and compliance. To achieve this statutory mandate, our regulations must ensure that Navigation Devices (1) have content protection that protects content from theft, piracy, and hacking, (2) cannot technically disrupt, impede or impair the delivery of services to an MVPD subscriber, both of which we consider to be under the umbrella of robustness (i.e., that they will adhere to robustness rules), and (3) honors the limits on the rights (including copy control limits) the subscriber has to use Navigable Services communicated in the Entitlement Information Flow (i.e., that they adhere to compliance rules). Through robustness and compliance terms, we seek to ensure that negotiated licensing terms imposed by content providers on MVPDs are passed through to Navigation Devices. Accordingly, our proposal requires MVPDs to choose Compliant Security Systems that validate only Navigation Devices that are sufficiently robust to protect content and honor the Entitlement Data that the MVPD sends to the Navigation Device. This is consistent with our understanding based on the DSTAC Report that, in other contexts, downloadable security systems usually include robustness and compliance terms as part of design audits, self-verification, or legal agreements, and that an untrustworthy actor will not be able to receive a certificate for its Navigation Devices to verify compliance. We seek comment on this proposed approach to address compliance and robustness. We also seek comment on whether we need to define the term “robustness and compliance rules” in our proposed definition of Compliant Security System, or if that term has a common, understood meaning, as reflected in the DSTAC Report. Should these terms include, at a minimum, what is described in the DFAST license? Should these terms contemplate protection of licensing terms between user guide information providers and MVPDs, and thus require unaffiliated Navigation Device developers to purchase their own detailed program guide information? Are there alternatives to our proposed approach that would ensure robustness and compliance? Are there other terms from the DFAST license that we should cover in this regard? In addition to section 629, are there other sources of statutory authority for imposing these compliance and robustness requirements, such as sections 335(a) and 624A of the Act? What impact, if any, does the D.C. Circuit's decision in EchoStar Satellite L.L.C. v. FCC have on the Commission's ability to adopt compliance and robustness requirements?

    Protection of MVPD Networks from Harm and Theft. We also believe that a device testing and certification process is important to protect MVPDs' networks from physical or electronic harm and the potential for theft of service from devices that attach directly to the networks. We seek comment on the extent to which unaffiliated devices will attach directly to MVPD networks. If devices will connect directly to the MVPD network, is our existing rule 76.1203 sufficient to assure that those devices do not cause physical or electronic harm to the network? We do not believe that each MVPD should have its own testing and certification processes. Under the CableCARD regime, devices our rules allowed testing to be performed by a qualified test facility, which is defined as “a testing laboratory representing cable television system operators serving a majority of the cable television subscribers in the United States or an appropriately qualified independent laboratory with adequate equipment and competent personnel knowledgeable with respect to the” CableCARD standards. We seek comment on whether that approach protected cable networks from physical and electronic harm and from theft of service, and whether it had any effect on the commercial availability of CableCARD devices. We also seek comment on which entities have or may develop testing and certification processes. What kind of testing should be required? We note, for example, there is a seven-step certification process to ensure that DLNA-certified devices do not have defects that would harm networks. Is this type of testing sufficient? We seek comment on this proposal and any alternative approaches, such as self-certification.

    Consumer Protection. It is essential that any rules we adopt to meet the goals of section 629 do not undermine other important public policy goals underlying the Communications Act, which are achieved by means of requirements imposed on MVPDs. Specifically, certain commenters highlighted concerns that competitive Navigation Device developers (i) would not keep subscribers' viewing habits private, as MVPDs are required to do, (ii) would violate advertising limits during programming for children, and (iii) would build devices that do not display emergency alerts or closed captioning or enable parental controls as MVPDs are required to do. We are encouraged by the fact that retail navigation devices, such as TiVos, have been deployed in the market for over a decade without allegations of a loss of consumer privacy, violations of advertising limits during programming for children, or problems with emergency alerts and accessibility. Nonetheless, because these consumer protections are so important, we propose to require that MVPDs authenticate and provide the three Information Flows only to Navigation Devices that have been certified by the developer to meet certain public interest requirements. We tentatively conclude that this certification must state that the developer will adhere to privacy protections, pass through EAS messages, and adhere to children's programming advertising limits. This proposal would mean that MVPDs are not required to enable the Information Flows unless they receive this certification, and also that they are prohibited from providing the Navigable Services to a Navigation Device that does not have such a certification. MVPDs cannot withhold the three Information Flows if they have received such certification and do not have a good faith reason to doubt its validity. This will ensure that the public policy goals underlying these requirements are met regardless of which device a consumer chooses to access multichannel video programming. We seek comment on this proposal and invite alternative proposals within our jurisdiction that would ensure that these important consumer protections remain in effect while we promote a competitive navigation market. Should the proposed certification address any other issues, including compliance with the Commission's accessibility rules and parental controls, or should we leave these matters to the market? We also seek comment on whether the retail market will be competitive enough to make any such regulation unnecessary (that is, the competitive market will assure that the protections that consumers desire are adequately protected).

    We seek comment on the best way to implement such a certification process. Should this be a self-certification process, or are there viable alternatives to self-certification? For example, should there be an independent entity that validates the competitor's certification? Should we develop a standardized form? Who would be responsible for maintaining a record of the certification? Could Open Standards Bodies or some other third-party entity require certification as part of their regimes and maintain those records? Alternatively, should the Commission maintain a repository of certifications? In addition, if there are lapses in compliance with any certification, what would be the appropriate enforcement mechanism?

    With respect to all MVPDs, we believe that Section 629 of the Act provides authority to impose these restrictions, because consumers may be dissuaded from opting for a competitive navigation solution if they are not confident that their interests will be protected to the same extent as in an MVPD-provided solution. With respect to DBS operators, we also believe section 335(a)—which directs the Commission to “impose, on providers of direct broadcast satellite service, public interest or other requirements for providing video programming”—grants us authority to ensure that these goals are met regardless of whether the DBS multichannel video programming is accessed by means of a DBS-provided device. We also seek comment on whether the sources of statutory authority for imposing on MVPDs privacy requirements, advertising limits on children's programming, emergency alerting requirements, closed captioning requirements, video description requirements, parental control requirements, or other consumer protection requirements also authorize the Commission to require that MVPDs provide the three Information Flows only to Navigation Devices that have been certified by the developer to meet certain public interest requirements. This will ensure that the new Navigation Device rules will not undercut our rules imposing those public interest requirements. We seek comment on these views and invite commenters to suggest any other sources of authority.

    We seek comment on how MVPDs could ensure that they do not provide the Information Flows to uncertified devices. Could the MVPD use device authentication to ensure that they do not send the three Information Flows to uncertified Navigation Devices? Could the Entitlement Data direct a device not to display the Content Data unless the Navigation Device was built by a developer who is certified? Are there other methods MVPDs could use to ensure that they send the Information Flows only to Navigation Devices that will honor these important consumer protection obligations? Similarly, how can MVPDs ensure, as both a technical and practical matter, that the Information Flows are no longer provided if there are any lapses in a competitor's compliance with these obligations?

    We seek comment on how this requirement will affect Navigation Device developers. We do not expect it will be difficult for developers to certify to these consumer protections. For example, such content as EAS alerts will be included in the Information Flows that MVPDs make available, and we do not expect enabling receipt of this content to be burdensome. Similarly, as to ensuring the privacy of subscriber information, given the national market for consumer technology, they must already ensure that their products and services meet the privacy standards of the strictest state regulatory regime. Moreover, the global economy means that many developers must comply with the European Union privacy regulations, which are much more stringent that the requirements placed on MVPDs under sections 631 and 338 of the Communications Act.

    Although we propose that competitive device manufacturers certify compliance with sections 631 and 338, we seek comment on the extent to which those manufacturers that collect personally identifiable information from consumers using their devices are currently subject to state privacy laws and the scope of any such laws. We note, for example, that California's Online Privacy Protection Act applies to an entity that owns an online service that collects and maintains personally identifiable information from consumers residing in California who use the online service if the online service is used for commercial purposes. Would this statute apply to competitive device manufacturers to the extent that they use the Internet to provide programming guide, scheduling, and recording information to consumers? Are there similar state privacy laws covering consumers residing in each of the other states? To what extent do state privacy laws require that manufacturers have privacy policies? MVPDs are obligated to provide privacy protections under sections 631 and 338 of the Act. Do state privacy laws require manufacturers to provide a comparable level of consumer protection? For example, the privacy protections established by sections 631 and 338 are enforceable by both the Commission and by private rights of action. Do any state laws provide for both administrative and private rights of action and/or damages in the event of a privacy violation? TiVo asserts that it is subject to enforcement by the FTC and state regulators for any failures to abide by its comprehensive privacy policy. We note that the FTC has taken legal action under its broad Section 5 “unfair and deceptive acts” authority against companies that violate their posted consumer privacy policies. We seek comment on whether state laws governing unfair and deceptive acts have similarly been used against companies that violate their consumer privacy policies and whether these laws are applicable to competitive device manufacturers. Furthermore, the Video Privacy Protection Act, with limited exceptions, generally prohibits companies that provide video online from disclosing the viewing history and other personally identifiable information of a consumer without the consumer's prior written consent. Does this statute impose any obligations on competitive device manufacturers to protect personally identifiable information collected from consumers? Are there any other state or federal laws that would help to ensure that competitive device manufacturers protect consumer privacy?

    Licensing Alternatives. As an alternative to the licensing and certification approaches we lay out above, should we instead require industry parties to develop a standardized license and certification regime, similar to the DFAST license, which has appeared to work at balancing consumer protection issues and allowing retail Navigation Device developers to innovate? Who would be responsible for managing that licensing system? Should our Navigation Device rules instead impose these terms by regulation, either initially or if industry parties cannot reach agreement? Does the Commission have authority to impose such terms via regulation? Has competitive navigation under the CableCARD regime led to any license agreement violations, privacy violations, or other violations of consumer protection laws? If so, what were the specifics of those violations, and how were they resolved?

    We do not currently have evidence that regulations are needed to address concerns raised by MVPDs and content providers that competitive navigation solutions will disrupt elements of service presentation (such as agreed-upon channel lineups and neighborhoods), replace or alter advertising, or improperly manipulate content. We have not seen evidence of any such problems in the CableCARD regime, and do not expect that the new approach we propose above will allow such behavior. Accordingly, we believe these concerns are speculative, and while we believe at this time it is unnecessary for us to propose any rules to address these issues, we seek comment on this view. We also seek comment on the extent to which copyright law may protect against these concerns, and note that nothing in our proposal will change or affect content creators' rights or remedies under copyright law. In the event that commenters submit evidence indicating that regulations are needed, we seek comment on whether we have the authority and enforcement mechanisms to address such concerns.

    Small MVPDs. We seek comment on how any rules that we adopt could affect small MVPDs, and whether we should impose different rules or implementation deadlines for small MVPDs. We tentatively conclude that all analog cable systems should be exempt from the rules we propose today, just as they were exempt from the original separation of security rules. We also seek specific comment on the American Cable Association's proposal to exempt MVPDs serving one million or fewer subscribers from any rules we adopt. Is there a size-neutral way that we could ensure that our rules are not overly burdensome to MVPDs? The American Cable Association also asserts that many of its members are not prepared to transition soon to delivery of their services in Internet Protocol, but we note that our proposed rules do not require MVPDs to use Internet Protocol to deliver the three Information Flows or Compliant Security System. For example, although we do not advocate reliance on CableCARD as a long-term solution, we note that the CableCARD standard largely appears to align with our proposed rules. Could the CableCARD regime remain a viable option for achieving the goals of Section 629 for those systems that continue to use QAM technology? Are there any changes to the CableCARD rules that should be made in light of more than a decade of experience with the regime or to accommodate changes in the MVPD industry since the rules were adopted? Do MVPDs who have not transitioned to IP delivery of control channel information nonetheless provide IP-based applications to their customers or use IP to send content to devices throughout a home network? If so, should such MVPDs be required to comply with the rules requiring parity for other Navigation Device developers via the Information Flows?

    Billing Transparency. We seek comment on how best to align our existing rule on separate billing and subsidies for devices with the text of the Act, the current state of the marketplace, and our goal of facilitating a competitive marketplace for navigation devices. Section 629 states that our regulations “shall not prohibit [MVPDs] from also offering [navigation devices] to consumers, if the system operator's charges to consumers for such devices and equipment are separately stated and not subsidized by charges for any such service.” We note that, although Section 629(a) of the Act states that the Commission “shall not prohibit” any MVPD from offering navigation devices to consumers if the equipment charges are separately stated and not subsidized by service charges, it does not appear to affirmatively require the Commission to require separate statement or to prohibit cross-subsidies. In the Commission's 1998 Report and Order, which implemented section 629, the Commission rejected the argument that section 629's requirements are “absolute” and that the section “expressly prevents all MVPDs from subsidizing equipment cost with service charges.” The Commission found that in a competitive market “there is minimal concern with below cost pricing because revenues do not emanate from monopoly profits. The subsidy provides a means to expand products and services, and the market provides a self- correcting resolution of the subsidy.” The Commission thus concluded that “[e]xisting equipment rate rules applicable to cable television systems not facing effective competition address Section 629(a)'s requirement that charges to consumers for such devices and equipment are separately stated and not subsidized by charges for any other service.” Accordingly, the Commission applied the separate billing and anti-subsidy requirements set forth in Section 76.1206 of our rules only to rate-regulated cable operators. In 2010, the Commission adopted “CableCARD support” rules, which included pricing transparency requirements and required uniform pricing for CableCARDs “regardless of whether the CableCARD is used in a leased set-top box or a navigation device purchased at retail.”

    Developments since the 1998 Report and Order raise a question whether the applicability of the Act's rate regulation provisions should continue to determine the applicability of our separate billing and anti-subsidy rules. At the time of that order, only a small minority of cable systems had been determined to be subject to “effective competition” as defined in the rate regulation provisions of the Act and thus exempted from rate regulation. Since that time, the Commission has made many findings that the statutory test for effective competition was met and updated its effective competition rules to reflect the current MVPD marketplace. We are no longer convinced that the statutory test for the applicability of rate regulation properly addresses our objective of promoting a competitive market for navigation devices as directed by Section 629. We base this proposed change in policy on our belief that customers may likely consider the costs of lease against purchase when considering whether to purchase a competitively provided device, and must know what it costs to lease a device in order to make an informed decision. Accordingly, we seek comment on whether we should modify our billing and/or anti-subsidy requirements set forth in section 76.1206.

    In particular, under the circumstances that exist today, should we revise our rules to require all MVPDs to state separately a charge for leased navigation devices and to reduce their charges by that amount to customers who provide their own devices, regardless of whether the statutory test for the applicability of rate regulation is met? Is such a requirement a necessary or appropriate complement to the rules we propose today to facilitate the offering of competitive navigation devices? We tentatively conclude that we should adopt such a requirement with respect to all navigation devices, including modems, routers, and set top boxes, and we invite comment on that tentative conclusion.

    If we adopt a requirement that all MVPDs state separately a charge for leased navigation devices, we invite comment on whether we should also impose a prohibition on cross-subsidization of device charges with service fees. Section 629 discusses separate statement and prohibition of cross-subsidy in the same sentence; but we read the statute to permit us to make an individual determination whether to impose one requirement or the other, or both (or neither). Do present market circumstances warrant adoption of an anti-subsidization rule? Observers often suggest that the charges currently imposed for leased devices are typically excessive, rather than cross-subsidized. A requirement of separate statement, by itself, should help to enable competition in the marketplace to ameliorate excessive pricing of leased devices. Is it therefore unnecessary at this time for us to adopt an expanded rule against cross-subsidization? Or would such a rule provide a useful prophylactic against future attempts to cross-subsidize? Would it suffice to require that a nonzero price be identified for any leased device? We seek comment on these issues. Commenters supporting adoption of an expanded anti-cross-subsidization rule should address the Commission's previous determination that “[a]pplying the subsidy prohibition to all MVPDs would lead to distortions in the market, stifling innovation and undermining consumer choice.”

    If we decide to adopt an updated anti-subsidy rule, how should we determine whether a device fee is cross-subsidized? For example, would the factors set forth in section 76.1205(b)(5) for determining the price that is “reasonably allocable” to a device lease fee be applicable for this purpose? How should we consider the possibility that an MVPD would ascribe a zero or near-zero price to a navigation device, and what implications might there be for further Commission responsibilities and actions? Are there other ways in which we can promote a competitive marketplace through requirements applicable to equipment that MVPDs lease, sell, or otherwise provide to their subscribers? For example, Anne Arundel and Montgomery Counties, Maryland in their reply comments propose that our rules (1) prohibit service charges for viewing on more than one device, (2) prohibit service charge penalties for consumer-owned devices, (3) prohibit multi-year contracts based on the use of a consumer-owned device, (4) ban “additional outlet” fees, (5) prohibit requirements that consumers lease equipment, and (6) give consumers the ability to purchase equipment outright. Commenters should include a discussion of the Commission's authority to adopt any regulations proposed.

    CableCARD Support and Reporting. In this section, we seek comment on whether the CableCARD consumer support rules set forth in section 76.1205(b) of the Commission's rules continue to serve a useful purpose and should be retained following the D.C. Circuit's 2013 decision in EchoStar Satellite L.L.C. v. FCC, which vacated two 2003 Commission Orders adopting the CableCARD standard as the method that must be used by digital cable operators in implementing the separation of security requirement for navigation devices. We tentatively conclude that these rules continue to serve a useful purpose and propose to retain them in our rules. We seek comment on this tentative conclusion. Alternatively, if commenters contend that the CableCARD consumer support rules should be eliminated or modified in light of EchoStar, commenters should explain the basis for their contention. To the extent that we conclude that the CableCARD consumer support rules continue to serve a useful purpose, we seek comment on whether to eliminate the requirement that the six largest cable operators submit status reports to the Commission every 90 days on CableCARD deployment and support.

    In 2005, the Commission adopted a requirement that the six largest cable operators submit status reports to the Commission every 90 days on CableCARD deployment and support. The Commission adopted this reporting requirement to ensure that cable operators meet their obligations to deploy and support CableCARDs. In an effort to “improve consumers' experience with retail navigation devices,” the Commission in 2010 imposed specific CableCARD consumer support requirements on cable operators. Specifically, these CableCARD consumer support rules: (1) Require cable operators to support the reception of switched digital video services on retail devices to ensure that subscribers are able to access the services for which they pay regardless of whether they lease or purchase their devices; (2) prohibit price discrimination against retail devices to support a competitive marketplace for retail devices; (3) require cable operators to allow self-installation of CableCARDs where device manufacturers offer device-specific installation instructions to make the installation experience for retail devices comparable to the experience for leased devices; (4) require cable operators to provide multi-stream CableCARDs by default to ensure that cable operators are providing their subscribers with current CableCARD technology; and (5) clarify that CableCARD device certification rules are limited to certain technical features to make it easier for device manufacturers to get their products to market.

    In 2013, the D.C. Circuit in EchoStar vacated the two 2003 Orders adopting the CableCARD standard as the method that must be used by all MVPDs in implementing the separation of security requirement for navigation devices. The D.C. Circuit concluded that the Commission lacked the authority under section 629 to impose encoding rules, which put a ceiling on the copy protections that MVPDs can impose, on satellite carriers. The Commission argued that those rules were not severable from the rest of the rules adopted in the 2003 Orders (including the rule that imposes the CableCARD standard), and therefore the D.C. Circuit vacated both of the orders. Subsequently, questions have been raised as to what effect, if any, the EchoStar decision has on the continued validity of the CableCARD consumer support requirements in Section 76.1205(b) of the Commission's rules.

    We seek comment on whether the CableCARD consumer support rules set forth in Section 76.1205(b) continue to serve a useful purpose after the D.C. Circuit's 2013 decision in EchoStar. As discussed above, the EchoStar decision vacated the two 2003 Orders that adopted rules mandating that MVPDs use the CableCARD standard to support the separation of security requirement. The EchoStar decision did not, however, vacate or even address the consumer support rules for cable operators that choose to continue to rely on the CableCARD standard in order to comply with the separated security requirement, which remains in effect. Accordingly, we believe that the consumer support rules set forth in section 76.1205(b) continue to serve a useful purpose and should be retained. We seek comment on this belief. Are the consumer support rules still necessary to support a competitive market for retail navigation devices?

    Additionally, we seek comment on whether to eliminate the CableCARD reporting requirement applicable to the six largest cable operators. Specifically, we seek comment on whether the reporting requirement is still necessary in light of the CableCARD consumer support requirements, as well as the recent repeal of the integration ban. As explained above, the reporting requirement was intended to ensure that cable operators satisfy their obligations to deploy and support CableCARDs. Are the consumer support requirements sufficient to ensure that cable operators meet these obligations? If so, is there any reason to retain the reporting requirement or should it be eliminated?

    Initial Regulatory Flexibility Act Analysis. As required by the Regulatory Flexibility Act of 1980, as amended (“RFA”) the Commission has prepared this present Initial Regulatory Flexibility Analysis (“IRFA”) concerning the possible significant economic impact on small entities by the policies and rules proposed in this Notice of Proposed Rulemaking (Notice). Written public comments are requested on this IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadlines for comments indicated on the first page of the Notice. The Commission will send a copy of the Notice, including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration (SBA). In addition, the Notice and IRFA (or summaries thereof) will be published in the Federal Register.

    Need for and Objectives of the Proposed Rules. In the Notice, the Commission seeks comment on proposed rules relating to the Commission's obligation under Section 629 of the Communications Act to assure a commercial market for equipment that can access multichannel video programming and other services offered over multichannel video programming systems. The NPRM tentatively concludes that new rules about multichannel video programming distributor's (MVPD's) provision of content are needed to further the goals of Section 629. It proposes such new rules, relating to the information that MVPDs must provide to allow competitive user interfaces, the security flexibility necessary to protect content, and the parity requirements necessary to ensure a level playing field between MVPD-leased equipment and competitive methods that consumers might use to access MVPD service instead of leasing MVPD equipment. The Notice also asks about MVPD fees for devices and the current status of the Commission's CableCARD rules, the existing rules arising from Section 629.

    Legal Basis. The authority for the action proposed in this rulemaking is contained in sections 1, 4, 303, 303A, 335, 403, 624, 624A, 629, 631, 706, and 713 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154, 303, 303a, 335, 403, 544, 544a, 549, 551, 606, and 613.

    Description and Estimate of the Number of Small Entities to Which the Proposed Rules Will Apply. The RFA directs the Commission to provide a description of and, where feasible, an estimate of the number of small entities that will 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 government 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.

    Wired Telecommunications Carriers. The North American Industry Classification System (“NAICS”) defines “Wired Telecommunications Carriers” as follows: “This industry comprises establishments primarily engaged in operating and/or providing access to transmission facilities and infrastructure that they own and/or lease for the transmission of voice, data, text, sound, and video using wired telecommunications networks. Transmission facilities may be based on a single technology or a combination of technologies. Establishments in this industry use the wired telecommunications network facilities that they operate to provide a variety of services, such as wired telephony services, including VoIP services; wired (cable) audio and video programming distribution; and wired broadband Internet services. By exception, establishments providing satellite television distribution services using facilities and infrastructure that they operate are included in this industry.” The SBA has developed a small business size standard for wireline firms for the broad economic census category of “Wired Telecommunications Carriers.” Under this category, a wireline business is small if it has 1,500 or fewer employees. Census data for 2007 shows that there were 3,188 firms that operated for the entire year. Of this total, 3,144 firms had fewer than 1,000 employees, and 44 firms had 1,000 or more employees. Therefore, under this size standard, we estimate that the majority of businesses can be considered small entities.

    Cable Television Distribution Services. Since 2007, these services have been defined within the broad economic census category of Wired Telecommunications Carriers, which category is defined above. The SBA has developed a small business size standard for this category, which is: All such businesses having 1,500 or fewer employees. Census data for 2007 shows that there were 3,188 firms that operated for the entire year. Of this total, 3,144 firms had fewer than 1,000 employees, and 44 firms had 1,000 or more employees. Therefore, under this size standard, we estimate that the majority of businesses can be considered small entities.

    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 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.

    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.

    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.

    Description of Projected Reporting, Recordkeeping and Other Compliance Requirements. The Notice proposes the following new or revised reporting or recordkeeping requirements. It proposes that MVPDs offer three flows of information using any published, transparent format that conforms to specifications set by open standards bodies, to permit the development of competitive navigation devices with competitive user interfaces. It proposes that the flows of information not be made available to a device absent verification that the device will honor copying and recording limits, privacy, Emergency Alert System messages, the Accessibility Rules in Part 79 of the Commission's Rules, parental control information, and children's programming advertising limits.

    It further proposes that each MVPD use at least one content protection system that is licensed on a reasonable and non-discriminatory basis by an organization that is not affiliated with MVPDs; that at least one such content protection system make available the entirety of the MVPD's service; and that the MVPD ensure that, on any device for which it provides an application, such a content protection system is available to competitors wishing to provide the same level of service. It also proposes a bar on Entitlement data discrimination because of the affiliation of otherwise proper devices. The Notice proposes to require each MVPD that offers its own application on unaffiliated devices without the need for MVPD-specific equipment to also offer the three information flows to unaffiliated applications without the need for MVPD-specific equipment.

    Finally, the Notice proposes to require MVPDs to separately state the fees charged to lease devices on consumers' bills, and, in a possible reduction of reporting requirements, seeks comment on discontinuing a requirement that the six largest cable operators report to the Commission about their support for CableCARD.

    Steps Taken To Minimize Significant Impact on Small Entities, and Significant Alternatives Considered. 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.

    The Notice proposes rules intended to assure a commercial market for competitive Navigation Devices. The Commission's has a statutory obligation to do so, and has concluded that it cannot do so if competitive Navigation Devices are tied to specific MVPDs. As a result, the compliance requirements must be the same for all MVPDs, large and small. The rules have been proposed in terms to minimize economic impact on small entities. The proposed rules allow flexibility for MVPDs while still assuring device manufacturers they can build to a manageable number of standards, and assuring consumers that they only need a single device. That flexibility arises from the fact that the proposed rules establish performance standards, not design standards. Although the compliance requirements must be the same in order to comply with our statutory mandate, the requirements themselves are clear and simple. Because they would be able, under the proposed rules, to rely on open standards for information flows and RAND licensable security, small MVPDs would not have to engage in complex compliance efforts. The only reporting requirements are related to fees for device leases, which cannot be further simplified for small entities. Finally, although the rules do not contemplate exemptions for small entities, the proposed rule requiring “boxless' provision of the three information flows applies only to MVPDs with the technological sophistication to offer “boxless” programming to their own devices. Thus, smaller MVPDs that are not providing this service will not be required to implement “boxless” information flows by operation of the proposed rule.

    Federal Rules Which Duplicate, Overlap, or Conflict With the Commission's Proposals. None.

    Authority. This Notice of Proposed Rulemaking is issued pursuant to authority contained in Sections 4(i), 4(j), 303(r), 325, 403, 616, 628, 629, 634 and 713 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 154(j), 303(r), 325, 403, 536, 548, 549, 554, and 613.

    Ex Parte Rules. The proceeding initiated by this Notice of Proposed Rulemaking shall be treated as “permit-but-disclose” proceedings in accordance with the Commission's ex parte rules. Persons making ex parte presentations must file a copy of any written presentation or a memorandum summarizing any oral presentation within two business days after the presentation (unless a different deadline applicable to the Sunshine period applies). Persons making oral ex parte presentations are reminded that memoranda summarizing the presentation must: (1) List all persons attending or otherwise participating in the meeting at which the ex parte presentation was made; and (2) summarize all data presented and arguments made during the presentation. If the presentation consisted in whole or in part of the presentation of data or arguments already reflected in the presenter's written comments, memoranda, or other filings in the proceeding, the presenter may provide citations to such data or arguments in his or her prior comments, memoranda, or other filings (specifying the relevant page and/or paragraph numbers where such data or arguments can be found) in lieu of summarizing them in the memorandum. Documents shown or given to Commission staff during ex parte meetings are deemed to be written ex parte presentations and must be filed consistent with rule 1.1206(b). In proceedings governed by rule 1.49(f) or for which the Commission has made available a method of electronic filing, written ex parte presentations and memoranda summarizing oral ex parte presentations, and all attachments thereto, must be filed through the electronic comment filing system available for that proceeding, and must be filed in their native format (e.g., .doc, .xml, .ppt, searchable .pdf). Participants in this proceeding should familiarize themselves with the Commission's ex parte rules.

    Filing Requirements. Pursuant to sections 1.415 and 1.419 of the Commission's rules,1 interested parties may file comments and reply comments on or before the dates indicated on the first page of this document. Comments may be filed using the Commission's Electronic Comment Filing System (“ECFS”).2

    1See id. §§ 1.415, 1.419.

    2See Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121 (1998).

    Electronic Filers: Comments may be filed electronically using the Internet by accessing the ECFS: http://fjallfoss.fcc.gov/ecfs2/.

    Paper Filers: Parties who choose to file by paper must file an original and one copy of each filing. If more than one docket or rulemaking number appears in the caption of this proceeding, filers must submit two additional copies for each additional docket or rulemaking number.

    Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.

    All hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to FCC Headquarters at 445 12th St. SW., Room TW-A325, Washington, DC 20554. The filing hours are 8:00 a.m. to 7:00 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes and boxes must be disposed of before entering the building.

    Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743.

    U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street SW., Washington, DC 20554.

    Availability of Documents. Comments and reply comments will be available for public inspection during regular business hours in the FCC Reference Center, Federal Communications Commission, 445 12th Street SW., CY-A257, Washington, DC 20554. These documents will also be available via ECFS. Documents will be available electronically in ASCII, Microsoft Word, and/or Adobe Acrobat.

    People with Disabilities. To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an email to [email protected] or call the FCC's Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).

    Additional Information. For additional information on this proceeding, contact Brendan Murray of the Media Bureau, Policy Division, (202) 418-1573 or Lyle Elder of the Media Bureau, Policy Division, (202) 418-2365.

    Regulatory Flexibility Analysis. As required by the Regulatory Flexibility Act of 1980, see 5 U.S.C. 604, the Commission has prepared an Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on small entities of the policies and rules addressed in this document. The IRFA is set forth in Appendix B. Written public comments are requested in the IRFA. These comments must be filed in accordance with the same filing deadlines as comments filed in response to this Notice of Proposed Rulemaking as set forth on the first page of this document, and have a separate and distinct heading designating them as responses to the IRFA.

    Initial Paperwork Reduction Act Analysis. This Notice of Proposed Rulemaking seeks comment on a potential new or revised information collection requirement. If the Commission adopts any new or revised information collection requirement, the Commission will publish a separate notice in the Federal Register inviting the public to comment on the requirement, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3501-3520). In addition, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, 44 U.S.C. 3506(c)(4), the Commission seeks specific comment on how it might “further reduce the information collection burden for small business concerns with fewer than 25 employees.”

    Ordering Clauses. Accordingly, it is ordered, pursuant to the authority contained in Sections 4(i), 4(j), 303, 303A, 335, 403, 624, 624A, 629, 631, 706, and 713 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 154(j), 303, 303a, 335, 403, 544, 544a, 549, 551, 606, and 613, that this Notice of Proposed Rulemaking and Memorandum Opinion and Order is adopted.

    It is further ordered that the Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of this Notice of Proposed Rulemaking and Memorandum Opinion and Order including the Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

    List of Subjects in 47 CFR Part 76

    Administrative practice and procedure; Cable television; Equal employment opportunity; Political candidates; Reporting and recordkeeping requirements.

    Federal Communications Commission. Marlene H. Dortch, Secretary. Proposed Rules

    For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR part 76 as follows:

    PART 76—MULTICHANNEL VIDEO AND CABLE TELEVISION SERVICE 1. 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, 338, 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.

    2. Amend § 76.1200 by revising paragraphs (a) through (e) and adding new paragraphs (f) through (m)to read as follows:
    § 76.1200 Definitions.

    (a) Affiliate. A person or entity that (directly or indirectly) owns or controls, is owned or controlled by, or is under common ownership or control with, another person, as defined in the notes accompanying § 76.501.

    (b) Certificate. A document that certifies that a Navigation Device will honor privacy, Emergency Alert System messages, the Accessibility Rules in part 79 of this Chapter, parental control information, and children's programming advertising limits.

    (c) Compliant Security System. A conditional access system or link protection technology that: (1) Is licensable on reasonable and nondiscriminatory terms; (2) relies on a Trust Authority not substantially controlled by any multichannel video programming distributor or group of multichannel video programming distributors; and (3) is licensable on terms that require licensees to comply with robustness and compliance rules.

    (d) Conditional access. The mechanisms that provide for selective access and denial of specific services and make use of signal security that can prevent a signal from being received except by authorized users.

    (e) Content Delivery Data. Data that contains the Navigable Service and any information necessary to make the Navigable Service accessible to persons with disabilities under part 79 of this Title.

    (f) Entitlement Data. Information about (1) which Navigable Services a subscriber has the rights to access and (2) the rights the subscriber has to use those Navigable Services. Entitlement data shall reflect identical rights that a consumer has on Navigation Devices that the multichannel video programming distributor sells or leases to its subscribers.

    (g) Multichannel video programming distributor. A person such as, but not limited to, a cable operator, a BRS/EBS provider, a direct broadcast satellite service, or a television receive-only satellite program distributor, who owns or operates a multichannel video programming system.

    (h) Multichannel video programming system. A distribution system that makes available for purchase, by customers or subscribers, multiple channels of video programming other than an open video system as defined by § 76.1500(a). Such systems include, but are not limited to, cable television systems, BRS/EBS systems, direct broadcast satellite systems, other systems for providing direct-to-home multichannel video programming via satellite, and satellite master antenna systems.

    (i) Navigable Service. A multichannel video programmer's video programming and Emergency Alert System messages (see 47 CFR part 11).

    (j) Navigation Devices. Devices such as converter boxes, interactive communications equipment, and other equipment used by consumers to access multichannel video programming and other services offered over multichannel video programming systems.

    (k) Open Standards Body. A standards body (1) whose membership is open to consumer electronics, multichannel video programming distributors, content companies, application developers, and consumer interest organizations, (2) that has a fair balance of interested members, (3) that has a published set of procedures to assure due process, (4) that has a published appeals process, and (5) that strives to set consensus standards.

    (l) Service Discovery Data. Information about available Navigable Services and any instructions necessary to request a Navigable Service.

    (m) Trust Authority. An entity that issues certificates and keys used by a Navigation Device to access Navigable Services that are secured by a given Compliant Security System.

    3. Revise § 76.1206 to read as follows:
    § 76.1206. Equipment sale or lease charge subsidy prohibition.

    After January 1, 2017, multichannel video programming distributors shall state the price for Navigation Devices separately on consumer bills.

    4. Add § 76.1211 to read as follows:
    § 76.1211. Information Necessary to Assure a Commercial Market for Navigation Devices.

    (a) Each multichannel video programming distributor shall make available to each Navigation Device that has a Certificate the Service Discovery Data, Entitlement Data, and Content Delivery Data for all Navigable Services in published, transparent formats that conform to specifications set by Open Standards Bodies in a manner that does not restrict competitive user interfaces and features.

    (b) If a multichannel video programming distributor makes available an application that allows access to multichannel video programming without the technological need for additional multichannel video programming distributor-specific equipment, then it shall make Service Discovery Data, Entitlement Data, and Content Delivery Data available to competitive Navigation Devices without the need for multichannel video programming distributor-specific equipment.

    (c) Each multichannel video programming distributor shall support at least one Compliant Security System.

    (1) At least one supported Compliant Security System shall enable access to all resolutions and formats of the multichannel video programming distributor's Navigable Services with the same Entitlement Data to use those Navigable Services as the multichannel video programming distributor affords Navigation Devices that it leases, sells, or otherwise provides to its subscribers.

    (2) Entitlement Data shall not discriminate on the basis of the affiliation of the Navigation Device.

    (d) On any device on which a multichannel video programming distributor makes available an application to access multichannel video programming, the multichannel video programming distributor must support at least one Compliant Security System that offers access to the same Navigable Services with the same rights to use those Navigable Services as the multichannel video programming distributor affords to its own application.

    [FR Doc. 2016-05763 Filed 3-15-16; 8:45 am] BILLING CODE 6712-01-P
    DEPARTMENT OF TRANSPORTATION Federal Motor Carrier Safety Administration 49 CFR Parts 383 and 384 [Docket No. FMCSA-2016-0051] RIN 2126-AB68 Commercial Driver's License Requirements of the Moving Ahead for Progress in the 21st Century Act and the Military Commercial Driver's License Act of 2012 AGENCY:

    Federal Motor Carrier Safety Administration (FMCSA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM), request for comments.

    SUMMARY:

    FMCSA proposes amendments to its Commercial Driver's License (CDL) regulations that would ease the transition of military personnel into civilian careers in the truck and bus industry by simplifying the process of getting a commercial learner's permit (CLP) or CDL. This rulemaking would extend the time period for applying for a skills test waiver from 90 days to 1 year after leaving a military position requiring the operation of a commercial motor vehicle (CMV). This rulemaking also would allow States to accept applications and administer the written and skills tests for a CLP or CDL from active duty military personnel who are stationed in that State. States that choose to accept such applications would be required to transmit the test results electronically to the State of domicile of the military personnel. The State of domicile would be required to issue the CDL or CLP on the basis of those results.

    DATES:

    Comments on this notice must be received on or before May 16, 2016.

    ADDRESSES:

    You may submit comments identified by Docket Number FMCSA-2016-0051 using any of the following methods:

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

    Mail: Docket Management Facility, U.S. Department of Transportation, 1200 New Jersey Avenue SE., West Building, Ground Floor, Room W12-140, Washington, DC 20590-0001.

    Hand Delivery or Courier: West Building, Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

    Fax: 202-493-2251.

    To avoid duplication, please use only one of these four methods. See the “Public Participation and Request for Comments” portion of the SUPPLEMENTARY INFORMATION section for instructions on submitting comments, including collection of information comments for the Office of Information and Regulatory Affairs, OMB.

    FOR FURTHER INFORMATION CONTACT:

    Mr. Selden Fritschner, CDL Division, Federal Motor Carrier Safety Administration, 1200 New Jersey Avenue SE., Washington, DC 20590-0001, by email at [email protected], or by telephone at 202-366-0677. If you have questions on viewing or submitting material to the docket, contact Docket Services, telephone (202) 366-9826.

    SUPPLEMENTARY INFORMATION: I. Executive Summary

    Section 32308 of the Moving Ahead for Progress in the 21st Century Act (MAP-21) [Pub. L. 112-141, 126 Stat. 405, July 6, 2012] required FMCSA to undertake a study to assess Federal and State regulatory, economic, and administrative challenges in obtaining CDLs faced by members and former members of the Armed Forces, who operated qualifying motor vehicles during their service. As a result of this study, FMCSA provided a report to Congress titled “Program to Assist Veterans to Acquire Commercial Driver's Licenses” (November 2013) (available in the docket for this rulemaking). The report contained six recommended actions, and elements of this report comprise the main parts of this rulemaking. These actions are:

    (1) Revise 49 CFR 383.77(b)(1) governing the Military Skills Test Waiver to extend the time period to apply for a waiver from 90 days to 1 year following separation from military service

    (2) Revise 49 CFR 383.77(b)(3) to add the option to qualify for a CDL based on training and experience in an MOC [Military Occupational Specialty] dedicated to military CMV operation

    (3) Revise the definitions of CDL and CLP in 49 CFR 383.5 and 49 CFR 384.212 and related provisions governing the domicile requirement, in order to implement the statutory waiver enacted by The Military Commercial Driver's License Act of 2012 . . .

    This NPRM would ease the current burdens on military personnel applying for CLPs and CDLs issued by a State Driver Licensing Agency (SDLA) in accordance with 49 CFR parts 383 and 384 in two ways. First, it would extend the time in which former military personnel are allowed to apply for a skills test waiver from the 90 days currently allowed by 49 CFR 383.77 to 1 year. On July 8, 2014, FMCSA issued a temporary exemption under 49 CFR part 381 that extended the skills test waiver to 1 year [79 FR 38659].1 The change proposed by this rulemaking would make the 1-year waiver period permanent. Second, this NPRM would allow States to accept applications and administer all necessary tests for a CLP or CDL from active duty service members stationed in that State who are operating in a Military Occupational Specialty as full-time CMV drivers. States that choose to exercise this option would be required to transmit the application and test results electronically to the service member's State of domicile. This would enable service members to complete their licensing requirements without incurring the time and expense of returning home. The State of domicile would be required to issue the CLP or CDL in accordance with otherwise applicable procedures.

    1 Available in the docket for this rulemaking.

    II. Public Participation and Request for Comments A. Submitting Comments

    If you submit a comment, please include the docket number for this NPRM (Docket No. FMCSA-2016-0051), indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online or by fax, mail, or hand delivery, but please use only one of these means. FMCSA recommends that you include your name and a mailing address, an email address, or a phone number in the body of your document so that FMCSA can contact you if there are questions regarding your submission.

    To submit your comment online, go to http://www.regulations.gov, put the docket number, FMCSA-2016-0051, in the keyword box, and click “Search.” When the new screen appears, click on the “Comment Now!” button and type your comment into the text box on the following screen. Choose whether you are submitting your comment as an individual or on behalf of a third party and then submit.

    If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 81/2 by 11 inches, suitable for copying and electronic filing. If you submit comments by mail and would like to know that they reached the facility, please enclose a stamped, self-addressed postcard or envelope.

    We will consider all comments and material received during the comment period and may change this rule based on your comments. FMCSA may issue a final rule at any time after the close of the comment period.

    B. Viewing Comments and Documents

    To view comments, as well as any documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov. Insert the docket number, FMCSA-2016-0051, in the keyword box, and click “Search.” Next, click the “Open Docket Folder” button and choose the document to review. If you do not have access to the Internet, you may view the docket online by visiting the Docket Management Facility in Room W12-140 on the ground floor of the DOT West Building, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., e.t., Monday through Friday, except Federal holidays.

    C. Privacy Act

    All comments received will be posted without change to http://www.regulations.gov and will include any personal information you provide. Anyone may search the electronic form of comments received into any of our dockets by the name of the individual submitting the comment (or of the person signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the Federal Register (FR) notice published on January 17, 2008 (73 FR 3316) or you may visit http://edocket.access.thefederalregister.org/2008/pdf/E8-785.pdf.

    III. Legal Basis

    This rulemaking rests on the authority of the Commercial Motor Vehicle Safety Act of 1986 (CMVSA), as amended, codified at 49 U.S.C. chapter 313 and implemented by 49 CFR parts 382, 383, and 384. It responds to section 5104(b) of the Fixing America's Surface Transportation (FAST) Act [Pub. L. 114-94, 129 Stat. 1312, December 4, 2015], which requires FMCSA to implement the recommendations included in the report submitted pursuant to section 32308 of MAP-21, discussed above. Section 5104(c) of the FAST Act also requires FMCSA to implement the Military Commercial Driver's License Act of 2012 [49 U.S.C. 31311(a)(12)(C)]. As explained later in the preamble, this proposed rule would give military personnel all of the benefits of the Military CDL Act, while avoiding certain adverse implications of that statute.

    The CMVSA provides broadly that “[t]he Secretary of Transportation shall prescribe regulations on minimum standards for testing and ensuring the fitness of an individual operating a commercial motor vehicle” (49 U.S.C. 31305(a)). Those regulations shall ensure that “(1) an individual issued a commercial driver's license [CDL] [must] pass written and driving tests for the operation of a commercial motor vehicle [CMV] that comply with the minimum standards prescribed by the Secretary under section 31305(a) of this title” (49 U.S.C. 31308(1)). To avoid the withholding of certain Federal-aid funds, States must adopt a testing program “consistent with the minimum standards prescribed by the Secretary of Transportation under section 31305(a) of this title” (49 U.S.C. 31311(a)(1)).

    Potential CMV drivers often obtain CDL training outside of their State of domicile. Driver training schools typically provide their students with a “representative” vehicle to use for the required skills test (see 49 U.S.C. 31305(a)(2)), as well as a valid CDL holder to accompany the applicant to the test site. Until 2012, however, the CMVSA provided that a CDL could be issued only by the driver's State of domicile (49 U.S.C. 31311(a)(12)(A)). The cost to out-of-State applicants returning to their home State, renting a “representative” vehicle, and finding a CDL holder to accompany the applicant could be substantial in terms of both personal time and financial expense. Therefore, on the basis of the authority cited in the previous paragraph, FMCSA's final rule on “Commercial Driver's License Testing and Commercial Learner's Permit Standards” (76 FR 26854, May 9, 2011) required States where a driver is domiciled to accept the result of skills tests administered by a different State (49 CFR 383.79).

    For military personnel, their legal residence or “domicile” is the State they consider their permanent home, where they pay taxes, vote, and get a driver's license. Military personnel are often stationed in a different State. The Military CDL Act allows a State to issue CDLs to certain military personnel not domiciled in the State, if their temporary or permanent duty stations are located in that State (49 U.S.C. 31312(a)(12)(C)). However, this procedure creates problems for service members trying to maintain legal domicile in another State. Because drivers' licenses are often treated as proof of domicile, obtaining a CDL from the State where they are stationed could result in the loss of domicile and corresponding benefits (e.g., tax breaks) in what they consider their “home” State. FMCSA, therefore, proposes to utilize the CMVSA's broader authority to allow the State where military personnel are stationed to accept CLP or CDL applications and to administer written and skills tests for the CDL. The proposed rule would require a State that adopted this procedure to transmit the application and test results electronically to the State of domicile, which in turn would be required to issue the CLP or CDL. This would maintain the link between the issuing State and the driver's State of domicile which is mandated by the CMVSA [49 U.S.C. 31311(a)(12)] and was observed until the Military CDL Act authorized a different but problematical procedure.

    IV. Discussion of Proposal A. Section 383.5: New Definition of “Military Services”

    FMCSA would amend § 383.5 by adding a definition of “military services” to the list of definitions in that section. A definition for “military services” is needed in order to interpret the new requirements in part 383 in this rulemaking.

    B. Section 383.77: Allowing States To Extend Their Acceptance of the Skills Test Waiver From 90 days to 1 year For separated Military Personnel

    This NPRM would amend § 383.77(b)(1) to allow States to accept Skills Test Waiver applications from military personnel for up to 1 year after they were regularly employed as military CMV drivers. FMCSA believes that this would give former military personnel a better opportunity to obtain a CDL in a way that will not negatively affect safety.

    Currently, former military personnel who were regularly employed in the preceding 90 days in a military position requiring the operation of a CMV may apply for a skills test waiver if they meet certain conditions. To date, more than 10,000 separated military personnel have taken advantage of the Skills Test Waiver. In the November 2013 report to Congress, “Program to Assist Veterans to Acquire Commercial Driver's Licenses,” FMCSA concluded that lengthening that period would ease the transition of service members and veterans 2 to civilian life. FMCSA recommended a revision to the Military Skills Test Waiver in 49 CFR 383.77(b)(1) to extend the period of availability from 90 days to 1 year.

    2 Veteran: A person who served on active duty in the Army, Navy, Air Force, or Coast Guard and who was discharged or released therefrom under conditions other than dishonorable.

    The Virginia Department of Motor Vehicles (DMV) subsequently requested an exemption from § 383.77(b)(1) to allow a 1-year waiver period for military personnel (available in docket FMCSA-2014-0096). On April 7, 2014, FMCSA published a Federal Register notice announcing the request (79 FR 19170). Five comments were received; all supported the application. In addition, another SDLA, The State of New York, Department of Motor Vehicles, supported “broader application of this exemption to all jurisdictions.” All commenters supported the Virginia request, saying that extending the period to apply for a waiver from 90 days to 1 year would enable more military personnel to obtain CDLs. Additionally, in a letter to FMCSA dated April 10, 2014, the America Association of Motor Vehicle Administrators, which represents the State and Provincial officials in the United States and Canada who administer and enforce motor vehicle laws, requested that FMCSA consider a blanket exemption for all U.S. jurisdictions.

    In a notice published on July 8, 2014 (79 FR 38645), FMCSA determined that the exemption requested by the Virginia DMV would maintain a level of safety equivalent to, or greater than, the level that would be achieved without the exemption, as required by 49 CFR 381.305(a). The Agency, therefore, approved the exemption and made it available to all SDLAs. However, the exemption did not change the language of § 383.77(b)(1) and the exemption remains effective for only 2 years. The current exemption expires July 7, 2016.

    C. Section 383.79: Allow the State Where the Person Is Stationed and the State of Domicile To Coordinate CLP/CDL Testing and CDL Issuance

    This proposal makes existing paragraphs (a) and (b) into paragraphs (a)(1) and (2) and adds new paragraphs (b)(1) and (2). New paragraphs (a)(1) and (2) re-codify but do not add new material to those sections currently in the CFR. New paragraphs (b)(1) and (2) add new provisions that outline the provisions for active-duty personnel to obtain CLPs and CDLs.

    Many active-duty military personnel would like to obtain CDLs while still in the military services, but are often stationed outside their State of domicile. This NPRM would allow a State to accept applications and administer CDL knowledge and skills tests for military personnel stationed there. That State would then be required to transmit the application and test results to the driver's State of domicile, which would be required to accept these documents and issue the CLP or CDL. For example, an airman might be stationed at Andrews Air Force Base in Maryland and live in Alexandria, Virginia. He currently holds a base driver's license in his home state of record: Kentucky. His application for a CLP would be made through the Maryland Motor Vehicle Administration (Maryland SDLA), because that is the State where he is stationed. Assuming the Maryland SDLA agreed to accept an application from a non-domiciled driver, it would forward the appropriate paperwork and test results to the Kentucky Department of Transportation (Kentucky SDLA), which would issue him a CLP or CDL.

    FMCSA believes this NPRM would simplify the task of obtaining a CDL without jeopardizing (1) any benefits associated with a service member's official State of domicile, or (2) the single-domicile/single issuer concept that has been essential to the CDL program since the beginning. Additionally, it would reduce travel time and other costs associated with traveling to the State of domicile for testing. The motor carrier industry would also benefit from a larger supply of licensed CMV drivers.

    A recent FMCSA rulemaking required the standardization of CLP and CDL testing and issuance: Commercial Driver's License Testing and Commercial Learner's Permit Standards (May 9, 2011, 76 FR 26854, and amended March 25, 2013, 78 FR 17875). This proposal uses existing procedures to make it easier for active duty military personnel to get both CLPs and CDLs. Military personnel would apply for a CLP in the State where they are stationed. After the driver passes the knowledge test, the local SDLA would electronically transmit the driver's test score to the State of domicile for issuance of a CLP. After the driver passes the skills test where he or she is stationed, the same SDLA would electronically transmit his/her test score to the State of domicile for issuance of a CDL. FMCSA believes this approach is an appropriate alternative to literal application of the Military CDL Act of 2012. That Act allowed a State where military personnel are stationed to issue CDLs, thus creating ambiguity about the driver's actual State of domicile: The State that issued the CDL or the State where the driver wished to maintain his/her permanent residence. The Military CDL Act was designed to reduce unnecessary bureaucratic burdens on active-duty military personnel and veterans, and this rulemaking addresses that requirement. This NPRM also permits CMV drivers in the armed forces to apply for CLPs and CDLs without running the risk of inadvertently changing their State of domicile—an unavoidable problem with the Military CDL Act.

    Because CLP and CDL test requirements are uniform nationally, the State where an applicant is stationed and the State of domicile administer the same knowledge and skills tests. A State of domicile, therefore, can accept knowledge and skills test results from another State and issue the CLP and then the CDL without concern that different States may have different licensing standards.

    The procedure for transmitting skills test results among States is already in place as a result of the May 2011 final rule on Commercial Driver's License Testing and Commercial Learner's Permit Standards. This new provision would not require a major technological change for the States to send and receive test result information. Some minor software modifications and updates would be required to allow transmission of the knowledge test results (as only skills test results are presently transmitted via these systems).

    FMCSA analyzed this proposal and believes that it is safety-neutral. Because the CDL provisions are now standardized across all SDLAs, all drivers will be subject to the same knowledge and skills tests.

    Section 5401(a) of the FAST Act added to 49 U.S.C. 31305 a new paragraph (d), which requires FMCSA to (1) exempt certain ex-military personnel from the CDL skills test if they had military experience driving CMV-like vehicles; (2) extend the skills test waiver to one year; and (3) credit the CMV training military drivers receive in the armed forces toward applicable CDL training and knowledge requirements. This rule would address the first and second of these requirements in considerable detail; the third, however, will require subsequent rulemaking.

    Section 5302 of the FAST Act requires FMCSA to give priority to statutorily required rules before beginning other rulemakings, unless it determines that there is a significant need for the other rulemaking and so notifies Congress. This NPRM is required by the provisions of section 5401. Even in the absence of those mandates, however, FMCSA believes the need to improve opportunities for military personnel returning to civilian life justifies the publication of this NPRM.

    D. Section 384.301: Compliance Date for SDLAs

    FMCSA would amend 49 CFR 384.301 by adding a new paragraph (j), specifying a 3-year compliance date for States. FMCSA has always given the States 3 years after the effective date of any new CDL rule to come into substantial compliance with its requirements. This allows the States time to pass necessary legislation and modify information systems, including the Commercial Driver's License Information System (CDLIS), to comply with the new requirements.

    V. Regulatory Analyses A. Executive Order 12866 (Regulatory Planning and Review), Executive Order 13563 (Improving Regulation and Regulatory Review), and DOT Regulatory Policies and Procedures

    Under E.O. 12866 (58 FR 51735, Oct. 4, 1993) as supplemented by E.O. 13563 and DOT policies and procedures, FMCSA must determine whether a regulatory action is “significant,” and therefore subject to OMB review and the requirements of the Executive order. The order defines “significant regulatory action” as one likely to result in a rule that may:

    (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal government or communities.

    (2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another Agency.

    (3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof.

    (4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive order.

    FMCSA has determined that this action is not a significant regulatory action within the meaning of E.O. 12866 or significant within the meaning of Department of Transportation regulatory policies and procedures. This rulemaking would not result in an annual effect on the economy of $100 million or more, lead to a major increase in costs or prices, or have significant adverse effects on the United States economy. This NPRM would amend existing procedures and practices governing administrative licensing actions.

    Costs and Benefits

    FMCSA evaluated potential costs and benefits associated with this rulemaking and the Agency does not expect the proposed changes to impose any new or increased costs. However, FMCSA estimates that these changes could result in a cost savings between $462,000 and $1,062,600 per year. The following sections provide an overview of this analysis.

    Section 383.77

    The rulemaking would extend the time to apply for a skills test waiver from 90 days to 1 year for former service members. This action would codify an existing exemption published on July 8, 2014 (79 FR 38645). That notice granted immediate relief from 49 CFR 383.77(b)(1) to military service members separating from active duty. The exemption did not change the CFR language and is effective for only 2 years, although it could be extended.

    As the rulemaking would codify an existing practice, FMCSA does not expect this revision to have any economic impact. However, the Agency believes that permanently granting military personnel more time to apply for a CDL after separation from service would be beneficial to both service members and prospective employers by creating more employment opportunities.

    Section 383.79(b)

    This proposal would allow States to submit the results of both the skills and knowledge tests of military applicants to the driver's State of domicile for issuance of the CLP and CDL. This information would be transmitted using the same electronic system that was previously established for the skills test. The proposed rule would require all States to use either the CSTIMS—Commercial Skills Test Information Management System—or ROOSTR—Report Out-Of-State Test Results, however, both of these systems are currently managed by the American Association of Motor Vehicle Administrators (AAMVA) at no cost to the States. While some software modifications and updates may be required to allow transmission of the knowledge test results (as only skills test results are presently transmitted via these systems), FMCSA expects that the cost of any updates to allow for the transmission of this additional information would be very minor. In addition, FMCSA has determined that three States are not currently using either one of these systems. However, FMCSA does not expect those States would incur costs to adopt one of these systems, as the costs for adoption are currently covered under an FMCSA grant program. There may be future costs associated with the management and maintenance of these systems, but FMCSA does not have an estimate of these costs and specifically requests comment on potential costs that may be incurred by the operation or adoption of either of these systems.

    FMCSA expects this provision to result in a cost savings for drivers. Specifically, this provision would allow States where active-duty military personnel are stationed to accept CLP or CDL applications and administer knowledge and skills tests for those personnel. The rule would require any such State to transmit electronic copies of the application and test results for military personnel to the driver's State of domicile, which in turn would be required to issue a CLP or CDL on the basis of that information. This would save military personnel the travel costs to return to their State of domicile. For example, if the driver were stationed in Virginia but his/her State of domicile was Texas, the rule would allow Texas to issue the driver a CLP and CDL based on successful testing conducted in Virginia. The driver would be saved the travel costs of returning to Texas, renting or borrowing a CMV for the test drive, and finding CDL holder to accompany the applicant to the testing site.

    To estimate how many drivers might take advantage of this provision, FMCSA started with the number who have used the military skills test waiver. Between May 2011 and February 2015, more than 10,100 skills test waivers were granted for military drivers, or an average of approximately 2,460 per year.3 For purposes of this analysis, FMCSA assumed that number would remain constant in future years. To estimate the number of drivers who may be stationed in a State other than their State of domicile and who, thus, could potentially take advantage of this provision, FMCSA used an estimate of the number of drivers who attend training outside their State of domicile from the Regulatory Evaluation conducted for the 2011 “Commercial Driver's License Testing and Commercial Learner's Permit Standards” Final Rule.4 According to this evaluation, approximately 25 percent of drivers obtained training outside their State of domicile. It is likely that more than 25 percent of military personnel are stationed outside their State of domicile. However, for purposes of this analysis FMCSA used the 25 percent estimate to calculate the population of drivers who may take advantage of this provision. Based on these assumptions, this provision affects approximately 660 drivers each year.

    3 Estimated based on information from an assessment of SDLAs, conducted by FMCSA in February 2015.

    4 Final Rule Regulatory Evaluation. Commercial Driver's License Testing and Commercial Learner's Permit Standards. 76 FR 26853. May 9, 2011. Docket No. FMCSA-2007-27659. https://www.federalregister.gov/articles/2011/05/09/2011-10510/commercial-drivers-license-testing-and-commercial-learners-permit-standards.

    FMCSA does not have information on the States where these drivers are domiciled or stationed. To estimate the potential costs savings, FMCSA used the scenario of a driver who is stationed in Virginia but domiciled in Texas. To present a low- and high-end estimate of the potential cost savings, FMCSA evaluated two scenarios in which the driver travels between Norfolk, Virginia, and Houston, Texas. In the first scenario, the driver takes a commercial flight. FMCSA estimates that a typical roundtrip flight between Norfolk and Houston costs approximately $700.5 In the second scenario, the driver drives a private vehicle between these locations. The current private vehicle mileage rate from the General Services Administration (GSA) is $0.575 per mile 6 and the distance between Norfolk and Houston is approximately 2800 miles, roundtrip. FMCSA estimates that it would cost the driver approximately $1,610 to drive between Virginia and Texas for CDL testing.

    5 The flight price $700 was estimated using the General Service Administration Airline City Pairs Search Tool for flights between Norfolk, Virginia and Houston, Texas. http://cpsearch.fas.gsa.gov/.

    6 U.S. General Services Administration. Privately Owned Vehicle (POV) Mileage Reimbursement Rates, as of January 1, 2015. http://www.gsa.gov/portal/content/100715.

    To estimate the potential cost savings, FMCSA multiplied the round trip flight price by the annual affected driver population to calculate the lower-bound estimate, and multiplied the mileage cost by the annual affected driver population to calculate the upper-bound estimate. Table 1 provides an overview of the expected annual cost savings, as well as the discounted total over the next 10 years. Based on the estimated participation rates, the total savings would be between $462,000 and $1,062,600 per year. In addition, the driver might incur lodging and rental costs depending on the location of the testing; however, these potential cost savings were not included in this analysis.

    Table 1—Estimated Annual and 10-Year Cost Savings for Out of State Drivers Scenario Population per year Cost savings per driver Total savings per year 10-year total
  • (3% discount rate)
  • 10-year total
  • (7% discount rate)
  • Lower-Bound (flight) 660 drivers $700 $462,000 $4,059,182 $3,472,037 Upper-Bound (car travel) 660 drivers 1,610 1,062,600 9,336,119 7,985,686

    In addition to the cost savings described above, there may be other non-quantified benefits associated with these provisions. For example, this proposal also allows military personnel to enter the job market more quickly and ease the transition after separation from service. This rulemaking may also increase the availability of drivers qualified to work for motor carriers, since military personnel would be able to complete their testing and licensing during their separation process. Finally, reducing unemployment for former military personnel may also reduce the amount of unemployment compensation paid by the Department of Defense to former service members.

    B. Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980 (5 U.S.C. 601-612) requires Federal agencies to consider the effects of the regulatory action on small business and other small entities and to minimize any significant economic impact. The term “small entities” comprises small businesses and 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. Accordingly, DOT policy requires an analysis of the impact of all regulations on small entities, and mandates that agencies strive to lessen any adverse effects on these businesses.

    Under the standards of the RFA, as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121, 110 Stat. 857) (SBREFA), this proposed rule would not impose a significant economic impact on a substantial number of small entities because the revisions would either codify an existing practice or allow States to provide more flexibility for military personnel seeking to obtain a CDL. FMCSA does not expect the changes to impose any new or increased costs on small entities. Consequently, I certify that this action would not have a significant economic impact on a substantial number of small entities.

    C. Unfunded Mandates Reform Act of 1995

    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, taken together, or by the private sector of $155 million (which is the value of $100 million in 1995 after adjusting for inflation to 2014 dollars) in any 1 year, and if so, to take steps to minimize these unfunded mandates. This rulemaking would not result in an additional net expenditure by State, local and Tribal governments, in the aggregate or by the private sector, of $155 million or more in any 1 year, nor would it affect small governments.

    D. Executive Order 12988 (Civil Justice Reform)

    This action meets applicable standards in sections 3(a) and 3(b)(2) of E.O. 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

    E. Executive Order 13045 (Protection of Children)

    E.O. 13045, Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, Apr. 23, 1997), requires agencies, when issuing “economically significant” rules the agency has reason to believe concern an environmental health or safety risk that may disproportionately affect children, to include an evaluation of the regulation's environmental health and safety effects on children. As discussed previously, this proposed rule is economically insignificant. Therefore, no analysis of the impacts on children is required.

    F. Executive Order 12630 (Taking of Private Property)

    This proposed rule does not affect a taking of private property or otherwise have taking implications under E.O. 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

    G. Executive Order 13132 (Federalism)

    This rulemaking does not preempt or modify any provision of State law, impose substantial direct unreimbursed compliance costs on any State, or diminish the power of any State to enforce its own laws. Accordingly, this rulemaking does not have Federalism implications warranting the application of E.O. 13132.

    H. Executive Order 12372 (Intergovernmental Review)

    The regulations implementing E.O. 12372 regarding intergovernmental consultation on Federal programs and activities do not apply to this proposed rule.

    I. Executive Order 13175 (Consultation and Coordination With Indian Tribal Governments)

    This proposed rule does not have tribal implications under E.O. 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.

    J. Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et seq.), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct, sponsor, or require through regulations. FMCSA determined that this proposed rule would not result in changes to the current information collection requirements.

    K. National Environmental Policy Act and Clean Air Act

    FMCSA analyzed this rulemaking for the purpose of the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and determined this action is categorically excluded from further analysis and documentation in an environmental assessment or environmental impact statement under FMCSA Order 5610.1 (69 FR 9680, March 1, 2004), Appendix 2, paragraph 6.b. The Categorical Exclusion (CE) in paragraph 6.b. covers regulations which are editorial or procedural, such as those updating addresses or establishing application procedures, and procedures for acting on petitions for waivers, exemptions and reconsiderations, including technical or other minor amendments to existing FMCSA regulations.

    FMCSA also analyzed this proposed rule under the Clean Air Act, as amended (CAA), section 176(c) (42 U.S.C. 7401 et seq.), and implementing regulations promulgated by the Environmental Protection Agency. Approval of this action is exempt from the CAA's general conformity requirement since it does not affect direct or indirect emissions of criteria pollutants.

    L. Executive Order 12898 (Environmental Justice)

    Under E.O. 12898 (Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations), each Federal agency must identify and address, as appropriate, “disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low-income populations” in the United States, its possessions, and territories. FMCSA has determined that this proposed rule would have no environmental justice effects, nor would it have any collective environmental impact.

    M. Executive Order 13211 (Energy Effects)

    FMCSA determined that the proposed rule would not significantly affect energy supply, distribution, or use. Therefore, no Statement of Energy Effects is required. FMCSA analyzed this action under E.O. 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. FMCSA determined that it would not be a “significant energy action” under that E.O. because this rulemaking is economically insignificant and it is not likely to have an adverse effect on the supply, distribution, or use of energy.

    N. E-Government Act of 2002

    The E-Government Act of 2002, Pub. L. 107-347, sec. 208, 116 Stat. 2899, 2921 (Dec. 17, 2002), requires Federal agencies to conduct a privacy impact assessment for new or substantially changed technology that collects, maintains, or disseminates information in an identifiable form. This rulemaking would not collect any personal information.

    O. National Technology Transfer and Advancement Act

    The National Technology Transfer and Advancement Act (15 U.S.C. 272 note) requires Federal agencies adopting Government technical standards to consider whether voluntary consensus standards are available. This Act also requires Agencies to “use technical standards that are developed or adopted by voluntary consensus standards bodies” to carry out policy objectives determined by the agencies, unless the standards are “inconsistent with applicable law or otherwise impractical.” If the Agency chooses to adopt its own standards in place of existing voluntary consensus standards, it must explain its decision in a separate statement to OMB. This proposed rule would not involve the adoption of any technical standards.

    P. Privacy Impact Assessment

    Section 522 of title I of division H of the Consolidated Appropriations Act, 2005, enacted December 8, 2004 (Pub. L. 108-447, 118 Stat. 2809, 3268, 5 U.S.C. 552a note), requires the Agency to conduct a privacy impact assessment (PIA) of a regulation that will affect the privacy of individuals. In accordance with this Act, a privacy impact analysis is warranted to address any privacy implications contemplated in the rulemaking. The Agency submitted a Privacy Threshold Assessment analyzing the privacy implications to the Department of Transportation, Office of the Secretary's Privacy Office to determine whether a PIA is required.

    The DOT Chief Privacy Officer has evaluated the risks and effects that this rulemaking might have on collecting, storing, and sharing PII and has examined protections and alternative information handling processes in order to mitigate potential privacy risks. There are no privacy risks and effects associated with this proposed rule.

    List of Subjects 49 CFR 383

    Administrative practice and procedure, Alcohol abuse, Drug abuse, Highway safety, Motor carriers.

    49 CFR Part 384

    Administrative practice and procedure, Alcohol abuse, Drug abuse, Highway safety, Motor carriers.

    In consideration of the foregoing, FMCSA proposes to amend 49 CFR chapter 3, parts 383 and 384 to read as follows:

    PART 383—COMMERCIAL DRIVER'S LICENSE STANDARDS; REQUIREMENTS AND PENALTIES 1. The authority citation for part 383 is revised to read as follows: Authority:

    Authority: 49 U.S.C. 521, 31136, 31301 et seq., and 31502; secs. 214 and 215 of Pub. L. 106-159, 113 Stat. 1748, 1766, 1767; sec. 1012(b) of Pub. L. 107-56, 115 Stat. 272, 297, sec. 4140 of Pub. L. 109-59, 119 Stat. 1144, 1746; sec. 32934 of Pub. L. 112-141, 126 Stat. 405, 830; and 49 CFR 1.87.

    2. Amend § 383.5 by adding the definition of “Military services” in alphabetical order to read as follows:
    § 383.5 Definitions.

    Military services means the United States Army, Navy, Marine Corps, Air Force, and Coast Guard, and their associated reserve, National Guard, and Auxiliary units.

    3. Amend § 383.77 by revising paragraph (b)(1) to read as follows:
    § 383.77 Substitute for driving skills tests for drivers with military CMV experience.

    (b) * * *

    (1) Is regularly employed or was regularly employed within the last year in a military position requiring operation of a CMV;

    4. Revise § 383.79 to read as follows:
    § 383.79 Testing of out-of-State applicants and military personnel.

    (a) Applicant. (1) A State may administer its skills test, in accordance with subparts F, G, and H of this part, to a person who has taken training in that State and is to be licensed in another U.S. jurisdiction (i.e., his/her State of domicile). A State that administers such a test must transmit the test result electronically directly from the testing State to the licensing State in an efficient and secure manner.

    (2) The State of domicile of a CDL applicant must accept the results of a skills test administered to the applicant by any other State, in accordance with subparts F, G, and H of this part, in fulfillment of the applicant's testing requirements under § 383.71, and the State's test administration requirements under § 383.73.

    (b) Military personnel. (1) A State where active duty military personnel who are operating in a Military Occupational Specialty as full-time commercial motor vehicle drivers are stationed, but not domiciled, may accept an application for a CLP or CDL from such personnel and administer to them its knowledge and skills tests, in accordance with subparts F, G, and H of this part. Such completed application and test results must be transmitted electronically directly from the testing State to the State of domicile of such personnel in an efficient and secure manner.

    (2) The State of domicile of a CLP or CDL applicant on active military duty must accept the completed application form and results of knowledge and skills tests administered to the applicant by the State where he or she is currently stationed, as authorized by paragraph (b)(1) of this section, in accordance with subparts F, G, and H of this part, in fulfillment of the applicant's application and testing requirements under § 383.71, and the State's test administration requirements under § 383.73, and issue the applicant a CLP or CDL.

    PART 384—STATE COMPLIANCE WITH COMMERCIAL DRIVER'S LICENSE PROGRAM 5. The authority citation for part 384 continues to read as follows: Authority:

    49 U.S.C. 31136, 31301 et seq., and 31502; secs. 103 and 215 of Pub. L. 106-59, 113 Stat. 1753, 1767; and 49 CFR 1.87.

    6. Amend § 384.301 by adding paragraph (j) to read as follows:
    § 384.301 Substantial compliance general requirements.

    (j) A State must come into substantial compliance with the requirements of subpart B of this part and part 383 of this chapter in effect as of [EFFECTIVE DATE OF FINAL RULE] as soon as practical, but, unless otherwise specifically provided in this part, not later than [3 YEARS AFTER EFFECTIVE DATE OF THE FINAL RULE].

    Issued under authority delegated in 49 CFR 1.87 on: March 9, 2016. T.F. Scott Darling, III, Acting Administrator.
    [FR Doc. 2016-05913 Filed 3-15-16; 8:45 am] BILLING CODE 4910-EX-P
    DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 [4500030115] Endangered and Threatened Wildlife and Plants; 90-Day Findings on 29 Petitions AGENCY:

    Fish and Wildlife Service, Interior.

    ACTION:

    Notice of petition findings and initiation of status reviews.

    SUMMARY:

    We, the U.S. Fish and Wildlife Service (Service), announce 90-day findings on various petitions to list, reclassify, or delist fish, wildlife, or plants under the Endangered Species Act of 1973, as amended (Act). Based on our review, we find that 13 petitions do not present substantial scientific or commercial information indicating that the petitioned actions may be warranted, and we are not initiating status reviews in response to these petitions. We refer to these as “not-substantial” petition findings. We also find that 16 petitions present substantial scientific or commercial information indicating that the petitioned actions may be warranted. Therefore, with the publication of this document, we announce that we plan to initiate a review of the status of these species to determine if the petitioned actions are warranted. To ensure that these status reviews are comprehensive, we are requesting scientific and commercial data and other information regarding these species. Based on the status reviews, we will issue 12-month findings on the petitions, which will address whether the petitioned action is warranted, as provided in section 4(b)(3)(B) of the Act.

    DATES:

    When we conduct status reviews, we will consider all information that we have received. To ensure that we will have adequate time to consider submitted information during the status reviews, we request that we receive information no later than May 16, 2016. For information submitted electronically using the Federal eRulemaking Portal (see ADDRESSES, below), this would mean submitting the information electronically by 11:59 p.m. Eastern Time on that date.

    ADDRESSES:

    Not-substantial petition findings: The not-substantial petition findings announced in this document are available on http://www.regulations.gov under the appropriate docket number (see Table 1 in SUPPLEMENTARY INFORMATION), or on the Service's Web site at http://ecos.fws.gov. Supporting information in preparing these findings is available for public inspection, by appointment, during normal business hours by contacting the appropriate person, as specified under Table 3 in SUPPLEMENTARY INFORMATION. If you have new information concerning the status of, or threats to, any of these species or their habitats, please submit that information to the person listed under Table 3 in SUPPLEMENTARY INFORMATION.

    Status reviews: You may submit information on species for which a status review is being initiated by one of the following methods:

    (1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. In the Search box, enter the appropriate docket number (see Table 2 in SUPPLEMENTARY INFORMATION). You may submit information by clicking on “Comment Now!” If your information will fit in the provided comment box, please use this feature of http://www.regulations.gov, as it is most compatible with our information review procedures. If you attach your information as a separate document, our preferred file format is Microsoft Word. If you attach multiple comments (such as form letters), our preferred format is a spreadsheet in Microsoft Excel.

    (2) By hard copy: Submit by U.S. mail or hand-delivery to: Public Comments Processing, Attn: [Insert appropriate docket number; see Table 2 in SUPPLEMENTARY INFORMATION]; U.S. Fish and Wildlife Service, MS: BPHC, 5275 Leesburg Pike; Falls Church, VA 22041-3803.

    We request that you send information only by the methods described above. We will post all information received on http://www.regulations.gov. This generally means that we will post any personal information you provide us (see Request for Information for Status Reviews for more information).

    FOR FURTHER INFORMATION CONTACT:

    See Table 3 in SUPPLEMENTARY INFORMATION for specific people to contact for each species.

    SUPPLEMENTARY INFORMATION: Not Substantial Findings

    The not-substantial petition findings announced in this document are listed in Table 1 below, and are available on http://www.regulations.gov under the appropriate docket number, or on the Service's Web site at http://ecos.fws.gov.

    Table 1—List of Not-Substantial Findings Common name Docket No. URL to docket in Regulations.gov Acuna cactus—delist FWS-R2-ES-2016-0025 http://www.regulations.gov/#!docketDetail;D=FWS-R2-ES-2016-0025. Arizona night lizard FWS-R2-ES-2015-0075 http://www.regulations.gov/#!docketDetail;D=FWS-R2-ES-2015-0075. Arizona wetsalts tiger beetle FWS-R2-ES-2016-0027 http://www.regulations.gov/#!docketDetail;D=FWS-R2-ES-2016-0027. Bezy's night lizard FWS-R2-ES-2015-0076 http://www.regulations.gov/#!docketDetail;D=FWS-R2-ES-2015-0076. Cheoah Bald salamander FWS-R4-ES-2015-0081 http://www.regulations.gov/#!docketDetail;D=FWS-R4-ES-2015-0081. Cow Knob salamander FWS-R5-ES-2015-0084 http://www.regulations.gov/#!docketDetail;D=FWS-R5-ES-2015-0084. MacDougal's yellowtops FWS-R2-ES-2016-0033 http://www.regulations.gov/#!docketDetail;D=FWS-R2-ES-2016-0033. Monito skink FWS-R4-ES-2016-0034 http://www.regulations.gov/#!docketDetail;D=FWS-R4-ES-2016-0034. Navasota ladies-tresses—delist FWS-R2-ES-2016-0035 http://www.regulations.gov/#!docketDetail;D=FWS-R2-ES-2016-0035. Patagonia eyed silkmoth FWS-R2-ES-2016-0036 http://www.regulations.gov/#!docketDetail;D=FWS-R2-ES-2016-0036. Reticulate collared lizard FWS-R2-ES-2015-0109 http://www.regulations.gov/#!docketDetail;D=FWS-R4-ES-2015-0109. South Mountain gray-cheeked salamander FWS-R4-ES-2015-0117 http://www.regulations.gov/#!docketDetail;D=FWS-R4-ES-2015-0117. Southern dusky salamander FWS-R4-ES-2016-0038 http://www.regulations.gov/#!docketDetail;D=FWS-R4-ES-2016-0038. Substantial Findings List of Substantial Findings

    The list of substantial findings is given below in Table 2.

    Table 2—List of Substantial Findings for Which a Status Review Is Being Initiated. Common name Docket No. URL to docket in Regulations.gov African elephant—reclassify FWS-HQ-ES-2016-0010 http://www.regulations.gov/#!docketDetail;D=FWS-HQ-ES-2016-0010. American burying beetle—delist FWS-R2-ES-2016-0011 http://www.regulations.gov/#!docketDetail;D=FWS-R2-ES-2016-0011. Chinese pangolin FWS-HQ-ES-2016-0012 http://www.regulations.gov/#!docketDetail;D=FWS-HQ-ES-2016-0012. Deseret milkvetch—delist FWS-R6-ES-2016-0013 http://www.regulations.gov/#!docketDetail;D=FWS-R6-ES-2016-0013. Giant ground pangolin FWS-HQ-ES-2016-0014 http://www.regulations.gov/#!docketDetail;D=FWS-HQ-ES-2016-0014. Indian pangolin FWS-HQ-ES-2016-0015 http://www.regulations.gov/#!docketDetail;D=FWS-HQ-ES-2016-0015. Leoncita false-foxglove FWS-R2-ES-2016-0016 http://www.regulations.gov/#!docketDetail;D=FWS-R2-ES-2016-0016. Long-tailed pangolin FWS-HQ-ES-2016-0017 http://www.regulations.gov/#!docketDetail;D=FWS-HQ-ES-2016-0017. Philippine pangolin FWS-HQ-ES-2016-0018 http://www.regulations.gov/#!docketDetail;D=FWS-HQ-ES-2016-0018. Rio Grande chub FWS-R2-ES-2016-0019 http://www.regulations.gov/#!docketDetail;D=FWS-R2-ES-2016-0019. Rio Grande sucker FWS-R2-ES-2016-0020 http://www.regulations.gov/#!docketDetail;D=FWS-R2-ES-2016-0020. Southwestern willow flycatcher—delist FWS-R2-ES-2016-0039 http://www.regulations.gov/#!docketDetail;D=FWS-R2-ES-2016-0039. Sunda pangolin FWS-HQ-ES-2016-0021 http://www.regulations.gov/#!docketDetail;D=FWS-HQ-ES-2016-0021. Tree pangolin FWS-HQ-ES-2016-0022 http://www.regulations.gov/#!docketDetail;D=FWS-HQ-ES-2016-0022. Western bumble bee FWS-R6-ES-2016-0023 http://www.regulations.gov/#!docketDetail;D=FWS-R6-ES-2016-0023. Yellow-banded bumble bee FWS-R5-ES-2016-0024 http://www.regulations.gov/#!docketDetail;D=FWS-R5-ES-2016-0024. Request for Information for Status Reviews

    When we make a finding that a petition presents substantial information indicating that listing, reclassification, or delisting a species may be warranted, we are required to review the status of the species (status review). For the status review to be complete and based on the best available scientific and commercial information, we request information on these species from governmental agencies, Native American Tribes, the scientific community, industry, and any other interested parties. We seek information on:

    (1) The species' biology, range, and population trends, including:

    (a) Habitat requirements;

    (b) Genetics and taxonomy;

    (c) Historical and current range, including distribution patterns; and

    (d) Historical and current population levels, and current and projected trends.

    (2) The five factors that are the basis for making a listing, reclassification, or delisting determination for a species under section 4(a) of the Act (16 U.S.C. 1531 et seq.), including past and ongoing conservation measures that could decrease the extent to which one or more of the factors affect the species, its habitat, or both. The five factors are:

    (a) The present or threatened destruction, modification, or curtailment of its habitat or range (Factor A);

    (b) Overutilization for commercial, recreational, scientific, or educational purposes (Factor B);

    (c) Disease or predation (Factor C);

    (d) The inadequacy of existing regulatory mechanisms (Factor D); or

    (e) Other natural or manmade factors affecting its continued existence (Factor E).

    (3) The potential effects of climate change on the species and its habitat, and the extent to which it affects the habitat or range of the species.

    If, after the status review, we determine that listing is warranted, we will propose critical habitat (see definition in section 3(5)(A) of the Act) for domestic (U.S.) species under section 4 of the Act, to the maximum extent prudent and determinable at the time we propose to list the species. Therefore, we also request data and information for the species listed in Table 2 (to be submitted as provided for in the ADDRESSES section) on:

    (1) What may constitute “physical or biological features essential to the conservation of the species,” within the geographical range occupied by the species;

    (2) Where these features are currently found;

    (3) Whether any of these features may require special management considerations or protection;

    (4) Specific areas outside the geographical area occupied by the species that are “essential for the conservation of the species”; and

    (5) What, if any, critical habitat you think we should propose for designation if the species is proposed for listing, and why such habitat falls within the definition of “critical habitat” at section 3(5) of the Act.

    Please include sufficient information with your submission (such as scientific journal articles or other publications) to allow us to verify any scientific or commercial information you include.

    Submissions merely stating support for or opposition to the actions under consideration without providing supporting information, although noted, will not be considered in making a determination. Section 4(b)(1)(A) of the Act directs that determinations as to whether any species is an endangered or threatened species must be made “solely on the basis of the best scientific and commercial data available.”

    You may submit your information concerning these status reviews by one of the methods listed in the ADDRESSES section. If you submit information via http://www.regulations.gov, your entire submission—including any personal identifying information—will be posted on the Web site. If you submit a hardcopy that includes personal identifying information, you may request at the top of your document that we withhold this personal identifying information from public review. However, we cannot guarantee that we will be able to do so. We will post all hardcopy submissions on http://www.regulations.gov.

    Contacts

    Contact information is provided below in Table 3 for both substantial and not-substantial findings.

    Table 3—Contacts Common name Contact person Acuna cactus Brady McGee, 505-248-6657; [email protected] African elephant Jessica Evans, 703-358-2141; [email protected] American burying beetle Brady McGee, 505-248-6657; [email protected] Arizona night lizard Michelle Shaughnessy, 505-248-6920; [email protected] Arizona wetsalts tiger beetle Michelle Shaughnessy, 505-248-6920; [email protected] Bezy's night lizard Michelle Shaughnessy, 505-248-6920; [email protected] Cheoah Bald salamander Sue Cameron, 828-258-3939; [email protected] Chinese pangolin Jessica Evans, 703-358-2141; [email protected] Cow Knob salamander Krishna Gifford, 413-253-8619; [email protected] Deseret milkvetch Larry Crist, 801-975-3330 x126; [email protected] Giant ground pangolin Jessica Evans, 703-358-2141; [email protected] Indian pangolin Jessica Evans, 703-358-2141; [email protected] Leoncita false-foxglove Michelle Shaughnessy, 505-248-6920; [email protected] Long-tailed pangolin Jessica Evans, 703-358-2141; [email protected] MacDougal's yellowtops Michelle Shaughnessy, 505-248-6920; [email protected] Monito skink Andreas Moshogianis, 404-679-7119; [email protected] Navasota ladies-tresses Brady McGee, 505-248-6657; [email protected] Patagonia eyed silkmoth Michelle Shaughnessy, 505-248-6920; [email protected] Philippine pangolin Jessica Evans, 703-358-2141; [email protected] Reticulate collared lizard Michelle Shaughnessy, 505-248-6920; [email protected] Rio Grande chub Michelle Shaughnessy, 505-248-6920; [email protected] Rio Grande sucker Michelle Shaughnessy, 505-248-6920; [email protected] South Mountain gray-cheeked salamander Sue Cameron, 828-258-3939; [email protected] Southern dusky salamander Andreas Moshogianis, 404-679-7119; [email protected] Southwestern willow flycatcher Brady McGee, 505-248-6657; [email protected] Sunda pangolin Jessica Evans, 703-358-2141; [email protected] Tree pangolin Jessica Evans, 703-358-2141; [email protected] Western bumble bee Mark Sattelberg, 307-772-2374; [email protected] Yellow-banded bumble bee Krishna Gifford, 413-253-8619; [email protected] If you use a telecommunications device for the deaf (TDD), please call the Federal Information Relay Service (FIRS) at 800-877-8339. Background

    Section 4(b)(3)(A) of the Act requires that we make a finding on whether a petition to list, delist, or reclassify a species presents substantial scientific or commercial information indicating that the petitioned action may be warranted. To the maximum extent practicable, we are to make this finding within 90 days of our receipt of the petition and publish our notice of the finding promptly in the Federal Register.

    Our regulations in the Code of Federal Regulations (CFR) establish that the standard for substantial scientific or commercial information with regard to a 90-day petition finding is “that amount of information that would lead a reasonable person to believe that the measure proposed in the petition may be warranted” (50 CFR 424.14(b)). If we find that a petition presents substantial scientific or commercial information, we are required to promptly commence a review of the status of the species, and we will subsequently summarize the status review in our 12-month finding.

    Section 4 of the Act (16 U.S.C. 1533) and its implementing regulations at 50 CFR part 424 set forth the procedures for adding a species to, or removing a species from, the Federal Lists of Endangered and Threatened Wildlife and Plants. A species may be determined to be an endangered or threatened species because of one or more of the five factors described in section 4(a)(1) of the Act (see Request for Information for Status Reviews, above).

    In considering whether conditions described within one or more of the factors might constitute threats, we must look beyond the exposure of the species to those conditions to evaluate whether the species may respond to the conditions in a way that causes actual impacts to the species. If there is exposure to a condition and the species responds negatively, the condition qualifies as a stressor and, during the subsequent status review, we attempt to determine how significant the stressor is. If the stressor is sufficiently significant that it drives, or contributes to, the risk of extinction of the species such that the species may warrant listing as endangered or threatened as those terms are defined in the Act, the stressor constitutes a threat to the species. Thus, the identification of conditions that could affect a species negatively may not be sufficient to compel a finding that the information in the petition and our files is substantial. The information must include evidence sufficient to suggest that these conditions may be operative threats that act on the species to a sufficient degree that the species may meet the definition of an endangered or threatened species under the Act.

    Evaluation of a Petition To Remove the Acuna Cactus From the List of Endangered and Threatened Wildlife

    Additional information regarding our review of this petition can be found as an appendix at http://www.regulations.gov under Docket No. FWS-R2-ES-2016-0025 under the Supporting Documents section.

    Species and Range

    Acuna cactus (Echinomastus erectocentrus var. acunensis): Arizona; Mexico

    Petition History

    On October 21, 2014, we received a petition dated October 8, 2014, from Freeport-McMoRan Minerals Corporation requesting the acuna cactus be delisted under the Act due to invalid taxonomy, larger range than previously known, and lack of adequate monitoring and survey data resulting in overstated decline in populations. The petition clearly identified itself as such and included the requisite identification information for the petitioner, required at 50 CFR 424.14(a). In a December 18, 2014, letter to the petitioner, we responded that we received the petition. This finding addresses the petition.

    Finding

    Based on our review of the petition and sources cited in the petition, we find that the petition does not present substantial scientific or commercial information indicating that the petitioned action (delisting) may be warranted for the acuna cactus (Echinomastus erectocentrus var. acunensis). Because the petition does not present substantial information indicating that delisting the acuna cactus may be warranted, we are not initiating a status review of this species in response to this petition. The basis and scientific support for this finding can be found as an appendix at http://www.regulations.gov under Docket No. FWS-R2-ES-2016-0025 under the Supporting Documents section. However, we ask that the public submit to us any new information that becomes available concerning the status of, or threats to, this species or its habitat at any time (see Table 3 in SUPPLEMENTARY INFORMATION).

    Evaluation of Two Petitions To Reclassify the African Elephant From a Threatened Species to an Endangered Species Under the Act

    Additional information regarding our review of these petitions can be found as an appendix at http://www.regulations.gov under Docket No. FWS-HQ-ES-2016-0010 under the Supporting Documents section.

    Species and Range

    African elephant (Loxodonta africana): Angola; Benin; Botswana; Burkina Faso; Cameroon; Central African Republic; Chad; Congo; Democratic Republic of the Congo; Côte d'Ivoire; Equatorial Guinea; Eritrea; Ethiopia; Gabon; Ghana; Guinea; Guinea-Bissau; Kenya; Liberia; Malawi; Mali; Mozambique; Namibia; Niger; Nigeria; Rwanda; Senegal; Sierra Leone; Somalia; South Africa; South Sudan; Swaziland; Tanzania; Togo; Uganda; Zambia; Zimbabwe

    Petitions History

    On February 12, 2015, we received an electronic petition dated February 11, 2015, from the International Fund for Animal Welfare, Humane Society International, Humane Society of the United States, and Fund for Animals requesting that the African elephant (Loxodonta africana) be reclassified from threatened status to endangered status under the Act. The petition clearly identified itself as such and included the requisite identification information for the petitioner, required at 50 CFR 424.14(a). In a June 17, 2015, letter to the petitioner, we responded that we had reviewed the information presented in the petition and did not find that the petition warranted an emergency listing under section 4(b)(7) of the Act.

    On June 10, 2015, we received a second petition dated June 10, 2015, from the Center for Biological Diversity (CBD) requesting that the listed African elephant be reclassified from a single species (Loxodonta africana) into two separate species, forest elephants (Loxodonta cyclotis) and savannah elephants (Loxodonta africana); the petition also requested to have both species reclassified as endangered species under the Act. The petition clearly identified itself as such and included the requisite identification information for the petitioner, required at 50 CFR 424.14(a). In a June 17, 2015, letter to the petitioner, we responded that we had reviewed the information presented in the petition and did not find that the petition warranted an emergency listing under section 4(b)(7) of the Act.

    As both petitions requested the same action for the same species, this finding will address both petitions. Additionally, although CBD requested that the listed African elephant be reclassified from a single species (Loxodonta africana) into two separate species, the forest elephants (Loxodonta cyclotis) and the savannah elephants (Loxodonta africana), a taxonomic change is beyond the scope of our initial 90-day finding, and we will instead consider whether such a change is warranted as part of our status review and 12-month finding for the species.

    Finding

    Based on our review of the petition and sources cited in the petition, we find that the petition presents substantial scientific or commercial information indicating that listing the African elephant (Loxodonta africana) may be warranted based on Factors A, B, D, and E. However, during our status review, we will thoroughly evaluate all potential threats to the species, including the extent to which any protections or other conservation efforts have reduced those threats. Thus, for this species, the Service requests any information relevant to whether the species falls within the definition of either an endangered species under section 3(6) of the Act or a threatened species under section 3(20), including information on the five listing factors under section 4(a)(1) and any other factors identified in this finding (see Request for Information for Status Reviews, above).

    Evaluation of a Petition To Remove the American Burying Beetle From the List of Endangered and Threatened Wildlife

    Additional information regarding our review of this petition can be found as an appendix at http://www.regulations.gov under Docket No. FWS-R2-ES-2016-0011 under the Supporting Documents section.

    Species and Range

    American burying beetle (Nicrophorus americanus): Arkansas, Kansas, Massachusetts, Missouri, Nebraska, Oklahoma, Rhode Island, South Dakota, and Texas

    Petition History

    On August 18, 2015, we received a petition dated August 18, 2015, via electronic mail from American Stewards of Liberty, the Independent Petroleum Association of America, the Texas Public Policy Foundation, and Dr. Steven W. Carothers (petitioners) requesting that the American burying beetle be delisted under the Act due to error in information such that the existence or magnitude of threats to the species, or both, do not support a conclusion that the species is at risk of extinction now or in the foreseeable future. The petition clearly identified itself as a petition and included the requisite identification information for the petitioner, as required by 50 CFR 424.14(a). This finding addresses the petition.

    Finding

    Based on our review of the petition and sources cited in the petition, we find that the petition presents substantial scientific or commercial information indicating that the petitioned action (delisting) may be warranted for the American burying beetle (Nicrophorus americanus), based on a lack of threats under any of the five listing factors. However, during our status review, we will thoroughly evaluate all potential threats to the species, including the extent to which any protections or other conservation efforts have reduced those threats. Thus, for this species, the Service requests any information relevant to whether the species falls within the definition of either an endangered species under section 3(6) of the Act or a threatened species under section 3(20), including information on the five listing factors under section 4(a)(1) and any other factors identified in this finding (see Request for Information for Status Reviews, above).

    Evaluation of a Petition To List the Arizona Night Lizard as an Endangered or Threatened Species Under the Act

    Additional information regarding our review of this petition can be found as an appendix at http://www.regulations.gov under Docket No. FWS-R2-ES-2015-0075 under the Supporting Documents section.

    Species and Range

    Arizona night lizard (Xantusia arizonae): Arizona

    Petition History

    On July 11, 2012, we received a petition dated July 11, 2012, from CBD requesting that 53 species of reptiles and amphibians, including the Arizona night lizard, be listed under the Act as endangered or threatened and that critical habitat be designated under the Act. The petition clearly identified itself as such and included the requisite identification information for the petitioner, required at 50 CFR 424.14(a). This finding addresses the Arizona night lizard.

    Finding

    Based on our review of the petition and sources cited in the petition, we find that the petition does not present substantial scientific or commercial information indicating that the petitioned action may be warranted for the Arizona night lizard (Xantusia arizonae). Because the petition does not present substantial information indicating that listing the Arizona night lizard may be warranted, we are not initiating a status review of this species in response to this petition. The basis and scientific support for this finding can be found as an appendix at http://www.regulations.gov under Docket No. FWS-R2-ES-2015-0075 under the Supporting Documents section. However, we ask that the public submit to us any new information that becomes available concerning the status of, or threats to, this species or its habitat at any time (see Table 3 in SUPPLEMENTARY INFORMATION).

    Evaluation of a Petition To List the Arizona Wetsalts Tiger Beetle as an Endangered or Threatened Species Under the Act

    Additional information regarding our review of this petition can be found as an appendix at http://www.regulations.gov under Docket No. FWS-R2-ES-2016-0027 under the Supporting Documents section.

    Species and Range

    Arizona wetsalts tiger beetle (Cicindela haemorrhagica arizonae): Arizona and Utah. This is a subspecies of the wetsalts tiger beetle (Cicindela haemorrhagica).

    Petition History

    On May 1, 2015, we received a petition dated May 1, 2015, from CBD requesting that the Arizona wetsalts tiger beetle be listed as threatened or endangered under the Act. The petition clearly identified itself as such and included the requisite identification information for the petitioner, required at 50 CFR 424.14(a). In a June 4, 2015, letter to the petitioner, we responded that we had reviewed the information presented in the petition and did not find that the petition warranted an emergency listing under section 4(b)(7) of the Act. This finding addresses the petition.

    Finding

    Based on our review of the petition and sources cited in the petition, we find that the petition does not present substantial scientific or commercial information indicating that the petitioned action may be warranted for the Arizona wetsalts tiger beetle (Cicindela haemorrhagica arizonae). Because the petition does not present substantial information indicating that listing the Arizona wetsalts tiger beetle may be warranted, we are not initiating a status review of this species in response to this petition. The basis and scientific support for this finding can be found as an appendix at http://www.regulations.gov under Docket No. FWS-R2-ES-2016-0027 under the Supporting Documents section. However, we ask that the public submit to us any new information that becomes available concerning the status of, or threats to, this species or its habitat at any time (see Table 3 in SUPPLEMENTARY INFORMATION).

    Evaluation of a Petition To List Bezy's Night Lizard as an Endangered or Threatened Species Under the Act

    Additional information regarding our review of this petition can be found as an appendix at http://www.regulations.gov under Docket No. FWS-R2-ES-2015-0076 under the Supporting Documents section.

    Species and Range

    Bezy's night lizard (Xantusia bezyi): Arizona

    Petition History

    On July 11, 2012, we received a petition dated July 11, 2012, from CBD requesting that 53 species of reptiles and amphibians, including Bezy's night lizard, be listed under the Act as endangered or threatened and that critical habitat be designated under the Act. The petition clearly identified itself as such and included the requisite identification information for the petitioner, required at 50 CFR 424.14(a). This finding addresses Bezy's night lizard.

    Finding

    Based on our review of the petition and sources cited in the petition, we find that the petition does not present substantial scientific or commercial information indicating that the petitioned action may be warranted for Bezy's night lizard (Xantusia bezyi). Because the petition does not present substantial information indicating that listing Bezy's night lizard may be warranted, we are not initiating a status review of this species in response to this petition. The basis and scientific support for this finding can be found as an appendix at http://www.regulations.gov under Docket No. FWS-R2-ES-2015-0076 under the Supporting Documents section. However, we ask that the public submit to us any new information that becomes available concerning the status of, or threats to, this species or its habitat at any time (see Table 3 in SUPPLEMENTARY INFORMATION).

    Evaluation of a Petition To List the Cheoah Bald Salamander as an Endangered or Threatened Species Under the Act

    Additional information regarding our review of this petition can be found as an appendix at http://www.regulations.gov under Docket No. FWS-R4-ES-2015-0081 under the Supporting Documents section.

    Species and Range

    Cheoah Bald salamander (Plethodon cheoah): North Carolina

    Petition History

    On July 11, 2012, we received a petition dated July 11, 2012, from CBD requesting that 53 species of reptiles and amphibians, including the Cheoah Bald salamander, be listed under the Act as endangered or threatened and that critical habitat be designated under the Act. The petition clearly identified itself as such and included the requisite identification information for the petitioner, required at 50 CFR 424.14(a). This finding addresses the Cheoah Bald salamander.

    Finding

    Based on our review of the petition and sources cited in the petition, we find that the petition does not present substantial scientific or commercial information indicating that the petitioned action may be warranted for the Cheoah Bald salamander (Plethodon cheoah). Because the petition does not present substantial information indicating that listing the Cheoah Bald salamander may be warranted, we are not initiating a status review of this species in response to this petition. The basis and scientific support for this finding can be found as an appendix at http://www.regulations.gov under Docket No. FWS-R4-ES-2015-0081 under the Supporting Documents section. However, we ask that the public submit to us any new information that becomes available concerning the status of, or threats to, this species or its habitat at any time (see Table 3 in SUPPLEMENTARY INFORMATION).

    Evaluation of Two Petitions To List the Chinese Pangolin Under the Endangered Species Act

    Additional information regarding our review of these petitions can be found as an appendix at http://www.regulations.gov under Docket No. FWS-HQ-ES-2016-0012 under the Supporting Documents section.

    Species and Range

    Chinese pangolin (Manis pentadactyla): Himalayan foothills, northern India; southern Bhutan; northeastern Bangladesh; northern Lao PDR; southern China; Taiwan; Hong Kong SAR; northern Viet Nam; northwest Thailand; and northern and western Myanmar

    Petitions History

    On July 15, 2015, we electronically received a petition from Born Free USA (BFUSA), CBD, Humane Society International (HSI), The Humane Society of the United States (HSUS), and the International Fund for Animal Welfare (IFAW), requesting that we list seven species of pangolin (Chinese pangolin (Manis pentadactyla), Sunda pangolin (M. javanica), Philippine pangolin (M. culionensis), Indian pangolin (M. crassicaudata), tree pangolin (M. tricuspis), giant ground pangolin (M. gigantean), and the long-tailed pangolin (M. tetradactyla)) as endangered species under the Act. The petition clearly identified itself as such and included the requisite identification information for the petitioner, required at 50 CFR 424.14(a). In an August 17, 2015, letter to the petitioner, we responded that we had reviewed the information presented in the petition and did not find that the petition warranted an emergency listing under section 4(b)(7) of the Act.

    On July 15, 2015, we electronically received a second petition from CBD, IFAW, HSUS, and BFUSA requesting that the Service list the same seven species of pangolin (Chinese pangolin (Manis pentadactyla), Sunda pangolin (M. javanica), Philippine pangolin (M. culionensis), Indian pangolin (M. crassicaudata), tree pangolin (M. tricuspis), giant ground pangolin (M. gigantean), and the long-tailed pangolin (M. tetradactyla)) as an endangered species under the similarity of appearance provisions of the Act (section 4(e)), based upon the petitioners' claim of these species' similarity of appearance to the currently listed Temminck's ground pangolin (Manis temminckii). The petition clearly identified itself as such and included the requisite identification information for the petitioner, required at 50 CFR 424.14(a). In an August 17, 2015, letter to the petitioner, we responded that we had reviewed the information presented in the petition and did not find that the petition warranted an emergency listing under section 4(b)(7) of the Act.

    As both petitions address the seven unlisted species of pangolin, we are combining the petitioned actions (listing each species as either threatened or endangered either based on the five factors under section 4(a)(1) of the Act or due to a similarity of appearance under section 4(e) of the Act) into a single 90-day finding for each species. The requested action for listing based on similarity of appearance (section 4(e)) will be considered under Factor E of each finding.

    This finding addresses the Chinese pangolin (Manis pentadactyla).

    Finding

    Based on our review of the petition and sources cited in the petition, we find that the petition presents substantial scientific or commercial information indicating that listing the Chinese pangolin (Manis pentadactyla) may be warranted based on Factors A, B, D, and E. However, during our status review, we will thoroughly evaluate all potential threats to the species, including the extent to which any protections or other conservation efforts have reduced those threats. Thus, for this species, the Service requests any information relevant to whether the species falls within the definition of either an endangered species under section 3(6) of the Act or a threatened species under section 3(20), including information on the five listing factors under section 4(a)(1) and any other factors identified in this finding (see Request for Information for Status Reviews, above).

    Evaluation of a Petition To List the Cow Knob Salamander as an Endangered or Threatened Species Under the Act

    Additional information regarding our review of this petition can be found as an appendix at http://www.regulations.gov under Docket No. FWS-R5-ES-2015-0084 under the Supporting Documents section.

    Species and Range

    Cow Knob (or white-spotted) salamander (Plethodon punctatus): Virginia, West Virginia

    Petition History

    On July 11, 2012, we received a petition dated July 11, 2012, from CBD requesting that 53 species of reptiles and amphibians, including the Cow Knob (or white-spotted) salamander, be listed under the Act as endangered or threatened and that critical habitat be designated under the Act. The petition clearly identified itself as such and included the requisite identification information for the petitioner, required at 50 CFR 424.14(a). This finding addresses the Cow Knob salamander.

    Finding

    Based on our review of the petition and sources cited in the petition, we find that the petition does not present substantial scientific or commercial information indicating that the petitioned action may be warranted for the Cow Knob (or white-spotted) salamander (Plethodon punctatus). Because the petition does not present substantial information indicating that listing the Cow Knob salamander may be warranted, we are not initiating a status review of this species in response to this petition. The basis and scientific support for this finding can be found as an appendix at http://www.regulations.gov under Docket No. FWS-R5-ES-2015-0084 under the Supporting Documents section. However, we ask that the public submit to us any new information that becomes available concerning the status of, or threats to, this species or its habitat at any time (see Table 3 in SUPPLEMENTARY INFORMATION).

    Evaluation of a Petition To Remove the Deseret Milkvetch From the List of Endangered and Threatened Wildlife

    Additional information regarding our review of this petition can be found as an appendix at http://www.regulations.gov under Docket No. FWS-R6-ES-2016-0013 under the Supporting Documents section.

    Species and Range

    Deseret milkvetch (Astragalus desereticus): Utah

    Petition History

    We received a petition dated October 6, 2015, from Western Area Power Administration requesting that Deseret milkvetch (currently listed as threatened), be delisted under the Act due to new information. The petition clearly identified itself as such and included the requisite identification information for the petitioner, required at 50 CFR 424.14(a). This finding addresses the petition.

    Finding

    Based on our review of the petition and sources cited in the petition, we find that the petition presents substantial scientific or commercial information indicating that the petitioned action (delisting) may be warranted for the Deseret milkvetch (Astragalus desereticus), based on a lack of threats under any of the five listing factors. However, during our status review, we will thoroughly evaluate all potential threats to the species, including the extent to which any protections or other conservation efforts have reduced those threats. Thus, for this species, the Service requests information relevant to whether the species falls within the definition of either an endangered species under section 3(6) of the Act or a threatened species under section 3(20), including information on the five listing factors under section 4(a)(1) and any other factors identified in this finding (see Request for Information for Status Reviews, above).

    Evaluation of Two Petitions To List the Giant Ground Pangolin Under the Endangered Species Act

    Additional information regarding our review of these petitions can be found as an appendix at http://www.regulations.gov under Docket No. FWS-HQ-ES-2016-0014 under the Supporting Documents section.

    Species and Range

    Giant ground pangolin (Manis gigantean): Cameroon; Central African Republic; Congo; Congo, The Democratic Republic of the; Côte d'Ivoire; Equatorial Guinea (Bioko, Equatorial Guinea (mainland)); Gabon; Ghana; Guinea; Guinea-Bissau; Liberia; Senegal; Sierra Leone; Tanzania, United Republic of; Uganda

    Petitions History

    On July 15, 2015, we electronically received a petition from BFUSA, CBD, HSI, HSUS, and IFAW requesting that we list seven species of pangolin (Chinese pangolin (Manis pentadactyla), Sunda pangolin (M. javanica), Philippine pangolin (M. culionensis), Indian pangolin (M. crassicaudata), tree pangolin (M. tricuspis), giant ground pangolin (M. gigantean), and the long-tailed pangolin (M. tetradactyla)) as endangered species under the Act. The petition clearly identified itself as such and included the requisite identification information for the petitioner, required at 50 CFR 424.14(a). In an August 17, 2015, letter to the petitioner, we responded that we reviewed the information presented in the petition and did not find that the petition warranted an emergency listing under section 4(b)(7) of the Act.

    On July 15, 2015, we electronically received a second petition from CBD, IFAW, HSI, HSUS, and BFUSA requesting that the Service list the same seven species of pangolin (Chinese pangolin (Manis pentadactyla), Sunda pangolin (M. javanica), Philippine pangolin (M. culionensis), Indian pangolin (M. crassicaudata), tree pangolin (M. tricuspis), giant ground pangolin (M. gigantean), and the long-tailed pangolin (M. tetradactyla)) as an endangered species under the similarity of appearance provisions of the Act (section 4(e)), based upon the petitioners' claim of these species' similarity of appearance to the currently listed Temminck's ground pangolin (Manis temminckii). The petition clearly identified itself as such and included the requisite identification information for the petitioner, required at 50 CFR 424.14(a). In an August 17, 2015, letter to the petitioner, we responded that we had reviewed the information presented in the petition and did not find that the petition warranted an emergency listing under section 4(b)(7) of the Act.

    As both petitions address the seven unlisted species of pangolin, we are combining the petitioned actions (listing each species as either threatened or endangered either based on the five factors under section 4(a)(1) of the Act or due to a similarity of appearance under section 4(e) of the Act) into a single 90-day finding for each species. The requested action for listing based on similarity of appearance (section 4(e)) will be considered under Factor E of each finding.

    This finding addresses the giant ground pangolin (Manis gigantean).

    Finding

    Based on our review of the petition and sources cited in the petition, we find that the petition presents substantial scientific or commercial information indicating that listing the giant ground pangolin (Manis gigantean) may be warranted based on Factors A, B, D, and E. However, during our status review, we will thoroughly evaluate all potential threats to the species, including the extent to which any protections or other conservation efforts have reduced those threats. Thus, for this species, the Service requests any information relevant to whether the species falls within the definition of either an endangered species under section 3(6) of the Act or a threatened species under section 3(20), including information on the five listing factors under section 4(a)(1) and any other the factors identified in this finding (see Request for Information for Status Reviews, above).

    Evaluation of Two Petitions To List the Indian Pangolin Under the Endangered Species Act

    Additional information regarding our review of these petitions can be found as an appendix at http://www.regulations.gov under Docket No. FWS-HQ-ES-2016-0015 under the Supporting Documents section.

    Species and Range

    Indian pangolin (Manis crassicaudata): Bangladesh; India; Nepal; Pakistan; Sri Lanka

    Petitions History

    On July 15, 2015, we electronically received a petition from BFUSA, CBD, HSI, HSUS, and IFAW requesting that we list seven species of pangolin (Chinese pangolin (Manis pentadactyla), Sunda pangolin (M. javanica), Philippine pangolin (M. culionensis), Indian pangolin (M. crassicaudata), tree pangolin (M. tricuspis), giant ground pangolin (M. gigantean), and the long-tailed pangolin (M. tetradactyla)) as endangered species under the Act. The petition clearly identified itself as such and included the requisite identification information for the petitioner, required at 50 CFR 424.14(a). In an August 17, 2015, letter to the petitioner, we responded that we had reviewed the information presented in the petition and did not find that the petition warranted an emergency listing under section 4(b)(7) of the Act.

    On July 15, 2015, we electronically received a second petition from CBD, IFAW, HSI, HSUS, and BFUSA requesting that the Service list the same seven species of pangolin (Chinese pangolin (Manis pentadactyla), Sunda pangolin (M. javanica), Philippine pangolin (M. culionensis), Indian pangolin (M. crassicaudata), tree pangolin (M. tricuspis), giant ground pangolin (M. gigantean), and the long-tailed pangolin (M. tetradactyla)) as an endangered species under the similarity of appearance provisions of the Act (section 4(e)), based upon the petitioners' claim of the species' similarity of appearance to the currently listed Temminck's ground pangolin (Manis temminckii). The petition clearly identified itself as such and included the requisite identification information for the petitioner, required at 50 CFR 424.14(a). In an August 17, 2015, letter to the petitioner, we responded that we had reviewed the information presented in the petition and did not find that the petition warranted an emergency listing under section 4(b)(7) of the Act.

    As both petitions address the seven unlisted species of pangolin, we are combining the petitioned actions (listing each species as either threatened or endangered either based on the five factors under section 4(a)(1) of the Act or due to a similarity of appearance under section 4(e) of the Act) into a single 90-day finding for each species. The requested action for listing based on similarity of appearance (section 4(e)) will be considered under Factor E of each finding.

    This finding addresses the Indian pangolin (Manis crassicaudata).

    Finding

    Based on our review of the petition and sources cited in the petition, we find that the petition presents substantial scientific or commercial information indicating that listing the Indian pangolin (Manis crassicaudata) may be warranted based on Factors A, B, D, and E. However, during our status review, we will thoroughly evaluate all potential threats to the species, including the extent to which any protections or other conservation efforts have reduced those threats. Thus, for this species, the Service requests any information relevant to whether the species falls within the definition of either an endangered species under section 3(6) of the Act or a threatened species under section 3(20), including information on the five listing factors under section 4(a)(1) and any other factors identified in this finding (see Request for Information for Status Reviews, above).

    Evaluation of a Petition To List the Leoncita False-Foxglove as an Endangered or Threatened Species Under the Act

    Additional information regarding our review of this petition can be found as an appendix at http://www.regulations.gov under Docket No. FWS-R2-ES-2016-0016 under the Supporting Documents section.

    Species and Range

    Leoncita false-foxglove (Agalinis calycina): New Mexico, Texas; Mexico

    Petition History

    On September 19, 2012, we received a petition dated September 6, 2012, from The Native Plant Society of New Mexico requesting that Leoncita false-foxglove be listed as endangered and critical habitat be designated for this species under the Act. The petition clearly identified itself as such and included the requisite identification information for the petitioner, required at 50 CFR 424.14(a). In a July 1, 2013, letter to the petitioner, we responded that we had reviewed the information presented in the petition and did not find that the petition warranted an emergency listing under section 4(b)(7) of the Act. This finding addresses the petition.

    Finding

    Based on our review of the petition and sources cited in the petition, we find that the petition presents substantial scientific or commercial information indicating that listing the Leoncita false-foxglove (Agalinis calycina) may be warranted, based on Factors A, D, and E. However, during our status review, we will thoroughly evaluate all potential threats to the species, including the extent to which any protections or other conservation efforts have reduced those threats. Thus, for this species, the Service requests any information relevant to whether the species falls within the definition of either an endangered species under section 3(6) of the Act or a threatened species under section 3(20), including information on the five listing factors under section 4(a)(1) and any other factors identified in this finding (see Request for Information for Status Reviews, above).

    Evaluation of Two Petitions To List the Long-tailed Pangolin Under the Endangered Species Act

    Additional information regarding our review of these petitions can be found as an appendix at http://www.regulations.gov under Docket No. FWS-HQ-ES-2016-0017 under the Supporting Documents section.

    Species and Range

    Long-tailed pangolin (Manis tetradactyla): Cameroon; Central African Republic; Congo; Congo, The Democratic Republic of the; Côte d'Ivoire; Equatorial Guinea (Equatorial Guinea (mainland)); Gabon; Ghana; Liberia; Nigeria; Sierra Leone

    Petitions History

    On July 15, 2015, we electronically received a petition from BFUSA, CBD, HSI, HSUS, and IFAW requesting that we list seven species of pangolin (Chinese pangolin (Manis pentadactyla), Sunda pangolin (M. javanica), Philippine pangolin (M. culionensis), Indian pangolin (M. crassicaudata), tree pangolin (M. tricuspis), giant ground pangolin (M. gigantean), and the long-tailed pangolin (M. tetradactyla)) as endangered species under the Act. The petition clearly identified itself as such and included the requisite identification information for the petitioner, required at 50 CFR 424.14(a). In an August 17, 2015, letter to the petitioner, we responded that we had reviewed the information presented in the petition and did not find that the petition warranted an emergency listing under section 4(b)(7) of the Act.

    On July 15, 2015, we electronically received a second petition from CBD, IFAW, HSI, HSUS, and BFUSA requesting that the Service list the same seven species of pangolin (Chinese pangolin (Manis pentadactyla), Sunda pangolin (M. javanica), Philippine pangolin (M. culionensis), Indian pangolin (M. crassicaudata), tree pangolin (M. tricuspis), giant ground pangolin (M. gigantean), and the long-tailed pangolin (M. tetradactyla)) as an endangered species under the similarity of appearance provisions of the Act (section 4(e)), based upon the petitioners' claim of the species' similarity of appearance to the currently listed Temminck's ground pangolin (Manis temminckii). The petition clearly identified itself as such and included the requisite identification information for the petitioner, required at 50 CFR 424.14(a). In an August 17, 2015, letter to the petitioners, we responded that we had reviewed the information presented in the petition and did not find that the petition warranted an emergency listing under section 4(b)(7) of the Act.

    As both petitions address the seven unlisted species of pangolin, we are combining the petitioned actions (listing each species as either threatened or endangered either based on the five factors under section 4(a)(1) of the Act or due to a similarity of appearance under section 4(e) of the Act) into a single 90-day finding for each species. The requested action for listing based on similarity of appearance (section 4(e)) will be considered under Factor E of each finding.

    This finding addresses the long-tailed pangolin (Manis tetradactyla).

    Finding

    Based on our review of the petition and sources cited in the petition, we find that the petition presents substantial scientific or commercial information indicating that listing the long-tailed pangolin (Manis tetradactyla) may be warranted based on Factors A, B, D, and E. However, during our status review, we will thoroughly evaluate all potential threats to the species, including the extent to which any protections or other conservation efforts have reduced those threats. Thus, for this species, the Service requests any information relevant to whether the species falls within the definition of either an endangered species under section 3(6) of the Act or a threatened species under section 3(20), including information on the five listing factors under section 4(a)(1) and any other factors identified in this finding (see Request for Information for Status Reviews, above).

    Evaluation of a Petition To List MacDougal's Yellowtops as an Endangered or Threatened Species Under the Act

    Additional information regarding our review of this petition can be found as an appendix at http://www.regulations.gov under Docket No. FWS-R2-ES-2016-0033 under the Supporting Documents section.

    Species and Range

    MacDougal's Yellowtops (Flaveria macdougalii): Arizona

    Petition History

    On May 1, 2015, we received a petition dated May 1, 2015, from CBD, Tara Easter, and Robin Silver requesting that MacDougal's yellowtops (Flaveria macdougalii) be emergency listed as threatened or endangered and critical habitat be designated for the species under the Act. The petition clearly identified itself as such and included the requisite identification information for the petitioner, required at 50 CFR 424.14(a). Because the Act does not provide for petitions to emergency list, we are considering it as a petition to list MacDougal's yellowtops. However, we did consider the immediacy of possible threats to the species and whether emergency listing may be necessary at this time. In a June 4, 2015, letter to the petitioner, we responded that we had reviewed the information presented in the petition and did not find that the petition warranted an emergency listing under section 4(b)(7) of the Act. This finding addresses the petition.

    Finding

    Based on our review of the petition and sources cited in the petition, we find that the petition does not present substantial scientific or commercial information indicating that the petitioned action may be warranted for MacDougal's yellowtops (Flaveria macdougalii). Because the petition does not present substantial information indicating that listing MacDougal's yellowtops may be warranted, we are not initiating a status review of this species in response to this petition. The basis and scientific support for this finding can be found as an appendix at http://www.regulations.gov under Docket No. FWS-R2-ES-2016-0033 under the Supporting Documents section. However, we ask that the public submit to us any new information that becomes available concerning the status of, or threats to, this species or its habitat at any time (see Table 3 in SUPPLEMENTARY INFORMATION).

    Evaluation of a Petition To List the Monito Skink as an Endangered or Threatened Species Under the Act

    Additional information regarding our review of this petition can be found as an appendix at http://www.regulations.gov under Docket No. FWS-R4-ES-2016-0034 under the Supporting Documents section.

    Species and Range

    Monito skink (Spondylurus monitae): Puerto Rico

    Petition History

    On February 11, 2014, we received a petition dated February 11, 2014, from CBD requesting that the Culebra skink (Spondylurus culebrae), Mona Skink (Spondylurus monae), Monito Skink (Spondylurus Monitoe), Lesser Virgin Islands Skink (Spondylurus semitaeniatus), Virgin Islands Bronze Skink (Spondylurus sloanii), Puerto Rican Skink (Spondylurus nitidus), Greater Saint Croix Skink (Spondylurus magnacruzae), Greater Virgin Islands Skink (Spondylurus spilonotus), and Lesser Saint Croix Skink (Capitellum parvicruzae) be listed as endangered and critical habitat be designated for these species under the Act. The petition clearly identified itself as such and included the requisite identification information for the petitioner, required at 50 CFR 424.14(a). We acknowledged receipt of this petition via email on February 12, 2014. This finding addresses one of the nine species identified in the petition: the Monito skink. The Culebra skink, Greater Saint Croix skink, Mona skink, Puerto Rican skink, Virgin Islands bronze skink, Greater Virgin Islands skink, and Lesser Saint Croix skink were addressed in a separate finding, which was published in the Federal Register on January 12, 2016 (81 FR 1368). We will address the Lesser Virgin Islands skink in a separate evaluation. This finding addresses the Monito skink.

    Finding

    Based on our review of the petition and sources cited in the petition, we find that the petition does not present substantial scientific or commercial information indicating that the petitioned action may be warranted for the Monito skink (Spondylurus monitae). Because the petition does not present substantial information indicating that listing the Monito skink may be warranted, we are not initiating a status review of this species in response to this petition. The basis and scientific support for this finding can be found as an appendix at http://www.regulations.gov under Docket No. FWS-R4-ES-2016-0034 under the Supporting Documents section. However, we ask that the public submit to us any new information that becomes available concerning the status of, or threats to, this species or its habitat at any time (see Table 3 in SUPPLEMENTARY INFORMATION).

    Evaluation of a Petition To Remove Navasota Ladies-Tresses From the List of Endangered and Threatened Wildlife

    Additional information regarding our review of this petition can be found as an appendix at http://www.regulations.gov under Docket No. FWS-R2-ES-2016-0035 under the Supporting Documents section.

    Species and Range

    Navasota ladies-tresses (Spiranthes parksii): Texas

    Petition History

    On May 26, 2015, we received a petition dated May 26, 2015, by electronic mail, from American Stewards of Liberty and Dr. Steve W. Carothers requesting that Navasota ladies-tresses be delisted under the Act due to error in information. The petition clearly identified itself as a petition and included the requisite identification information for the petitioner, as required by 50 CFR 424.14(a). This finding addresses the petition.

    Finding

    Based on our review of the petition and sources cited in the petition, we find that the petition does not present substantial scientific or commercial information indicating that the petitioned action (delisting) may be warranted for Navasota ladies-tresses (Spiranthes parksii). Because the petition does not present substantial information indicating that delisting Navasota ladies-tresses may be warranted, we are not initiating a status review of this species in response to this petition. The basis and scientific support for this finding can be found as an appendix at http://www.regulations.gov under Docket No. FWS-R2-ES-2016-0035 under the Supporting Documents section. However, we ask that the public submit to us any new information that becomes available concerning the status of, or threats to, this species or its habitat at any time (see Table 3 in SUPPLEMENTARY INFORMATION).

    Evaluation of a Petition To List the Patagonia Eyed Silkmoth as an Endangered or Threatened Species Under the Act

    Additional information regarding our review of this petition can be found as an appendix at http://www.regulations.gov under Docket No. FWS-R2-ES-2016-0036 under the Supporting Documents section.

    Species and Range

    Patagonia eyed silkmoth (Automeris patagoniensis): Arizona; Mexico

    Petition History

    On June 29, 2015, we received a petition dated June 17, 2015, from Defenders of Wildlife and Patagonia Area Resource Alliance requesting that the Patagonia eyed silkmoth be listed as threatened or endangered and critical habitat be designated for this species under the Act. The petition clearly identified itself as such and included the requisite identification information for the petitioner, required at 50 CFR 424.14(a). This finding addresses the petition.

    Finding

    Based on our review of the petition and sources cited in the petition, we find that the petition does not present substantial scientific or commercial information indicating that the petitioned action may be warranted for the Patagonia eyed silkmoth (Automeris patagoniensis). Because the petition does not present substantial information indicating that listing the Patagonia eyed silkmoth may be warranted, we are not initiating a status review of this species in response to this petition. The basis and scientific support for this finding can be found as an appendix at http://www.regulations.gov under Docket No. FWS-R2-ES-2016-0036 under the Supporting Documents section. However, we ask that the public submit to us any new information that becomes available concerning the status of, or threats to, this species or its habitat at any time (see Table 3 in SUPPLEMENTARY INFORMATION).

    Evaluation of Two Petitions To List the Philippine Pangolin Under the Endangered Species Act

    Additional information regarding our review of these petitions can be found as an appendix at http://www.regulations.gov under Docket No. FWS-HQ-ES-2016-0018 under the Supporting Documents section.

    Species and Range

    Philippine pangolin (Manis culionensis): Philippines

    Petitions History

    On July 15, 2015, we electronically received a petition from BFUSA, CBD, HSI, HSUS, and IFAW requesting that we list seven species of pangolin (Chinese pangolin (Manis pentadactyla), Sunda pangolin (M. javanica), Philippine pangolin (M. culionensis), Indian pangolin (M. crassicaudata), tree pangolin (M. tricuspis), giant ground pangolin (M. gigantean), and the long-tailed pangolin (M. tetradactyla)) as endangered species under the Act. The petition clearly identified itself as such and included the requisite identification information for the petitioner, required at 50 CFR 424.14(a). In an August 17, 2015, letter to the petitioner, we responded that we had reviewed the information presented in the petition and did not find that the petition warranted an emergency listing under section 4(b)(7) of the Act.

    On July 15, 2015, we electronically received a second petition from CBD, IFAW, HSI, HSUS, and BFUSA requesting that the Service list the same seven species of pangolin (Chinese pangolin (Manis pentadactyla), Sunda pangolin (M. javanica), Philippine pangolin (M. culionensis), Indian pangolin (M. crassicaudata), tree pangolin (M. tricuspis), giant ground pangolin (M. gigantean), and the long-tailed pangolin (M. tetradactyla)) as an endangered species under the similarity of appearance provisions of the Act (section 4(e)), based upon the petitioners' claim of the species' similarity of appearance to the currently listed Temminck's ground pangolin (Manis temminckii). The petition clearly identified itself as such and included the requisite identification information for the petitioners, required at 50 CFR 424.14(a). In an August 17, 2015, letter to the petitioners, we responded that we had reviewed the information presented in the petition and did not find that the petition warranted an emergency listing under section 4(b)(7) of the Act.

    As both petitions address the seven unlisted species of pangolin, we are combining the petitioned actions (listing each species as either threatened or endangered either based on the five factors under section 4(a)(1) of the Act or due to a similarity of appearance under section 4(e) of the Act) into a single 90-day finding for each species. The requested action for listing based on similarity of appearance (section 4(e)) will be considered under Factor E of each finding.

    This finding addresses the Philippine pangolin (Manis culionensis).

    Finding

    Based on our review of the petition and sources cited in the petition, we find that the petition presents substantial scientific or commercial information indicating that listing the Philippine pangolin (Manis culionensis) may be warranted based on Factors A, B, D, and E. However, during our status review, we will thoroughly evaluate all potential threats to the species, including the extent to which any protections or other conservation efforts have reduced those threats. Thus, for this species, the Service requests any information relevant to whether the species falls within the definition of either an endangered species under section 3(6) of the Act or a threatened species under section 3(20), including information on the five listing factors under section 4(a)(1) and any other factors identified in this finding (see Request for Information for Status Reviews, above).

    Evaluation of a Petition To List the Reticulate Collared Lizard as an Endangered or Threatened Species Under the Act

    Additional information regarding our review of this petition can be found as an appendix at http://www.regulations.gov under Docket No. FWS-R2-ES-2015-0109 under the Supporting Documents section.

    Species and Range

    Reticulate Collared Lizard (Crotaphytus reticulatus): Texas; Mexico

    Petition History

    On July 11, 2012, we received a petition dated July 11, 2012, from CBD requesting that 53 species of reptiles and amphibians, including the reticulate collared lizard, be listed under the Act as threatened or endangered species and critical habitat be designated under the Act. The petition clearly identified itself as such and included the requisite identification information for the petitioner, required at 50 CFR 424.14(a). This finding addresses the petition.

    Finding

    Based on our review of the petition and sources cited in the petition, we find that the petition does not present substantial scientific or commercial information indicating that the petitioned action may be warranted for the reticulate collared lizard (Crotaphytus reticulatus). Because the petition does not present substantial information indicating that listing the reticulate collared lizard may be warranted, we are not initiating a status review of this species in response to this petition. The basis and scientific support for this finding can be found as an appendix at http://www.regulations.gov under Docket No. FWS-R2-ES-2015-0109 under the Supporting Documents section. However, we ask that the public submit to us any new information that becomes available concerning the status of, or threats to, this species or its habitat at any time (see Table 3 in SUPPLEMENTARY INFORMATION).

    Evaluation of a Petition To List the Rio Grande Chub as an Endangered or Threatened Species Under the Act

    Additional information regarding our review of this petition can be found as an appendix at http://www.regulations.gov under Docket No. FWS-R2-ES-2016-0019 under the Supporting Documents section.

    Species and Range

    Rio Grande chub (Gila pandora): New Mexico, Texas.

    Petition History

    On September 30, 2013, we received a petition dated September 27, 2013, from Wild Earth Guardians requesting that the Rio Grande chub be listed as threatened or endangered and critical habitat be designated for this species under the Act. The petition clearly identified itself as such and included the requisite identification information for the petitioner, required at 50 CFR 424.14(a). This finding addresses the petition.

    Finding

    Based on our review of the petition and sources cited in the petition, we find that the petition presents substantial scientific or commercial information indicating that listing the Rio Grande chub (Gila pandora) may be warranted, based on Factors A, C, D, and E. However, during our status review, we will thoroughly evaluate all potential threats to the species, including the extent to which any protections or other conservation efforts have reduced those threats. Thus, for this species, the Service requests any information relevant to whether the species falls within the definition of either an endangered species under section 3(6) of the Act or a threatened species under section 3(20), including information on the five listing factors under section 4(a)(1) and any other factors identified in this finding (see Request for Information for Status Reviews, above).

    Evaluation of a Petition To List the Rio Grande Sucker as an Endangered or Threatened Species Under the Act

    Additional information regarding our review of this petition can be found as an appendix at http://www.regulations.gov under Docket No. FWS-R2-ES-2016-0020 under the Supporting Documents section.

    Species and Range

    Rio Grande sucker (Catostomus plebeius): Colorado, New Mexico; Mexico.

    Petition History

    On October 3, 2014, we received a petition dated September 29, 2014, from WildEarth Guardians requesting that Rio Grande sucker (also known as the Rio Grande mountain-sucker, or matelote del bravo) be listed as threatened or endangered and critical habitat be designated for this species under the Act. The petition clearly identified itself as such and included the requisite identification information for the petitioner, required at 50 CFR 424.14(a). This finding addresses the petition.

    Finding

    Based on our review of the petition and sources cited in the petition, we find that the petition presents substantial scientific or commercial information indicating that listing the Rio Grande sucker (Catostomus plebeius) may be warranted, based on Factors A, C, D, and E. However, during our status review, we will thoroughly evaluate all potential threats to the species, including the extent to which any protections or other conservation efforts have reduced those threats. Thus, for this species, the Service requests any information relevant to whether the species falls within the definition of either “endangered species” under section 3(6) of the Act or “threatened species” under section 3(20), including information on the five listing factors under section 4(a)(1) and any other factors identified in this finding (see Request for Information for Status Reviews, above).

    Evaluation of a Petition To List the South Mountain Gray-Cheeked Salamander as an Endangered or Threatened Species Under the Act

    Additional information regarding our review of this petition can be found as an appendix at http://www.regulations.gov under Docket No. FWS-R4-ES-2015-0117 under the Supporting Documents section.

    Species and Range

    South Mountain gray-cheeked salamander (Plethodon meridianus): North Carolina.

    Petition History

    On July 11, 2012, we received a petition dated July 11, 2012, from CBD requesting that 53 species of reptiles and amphibians, including the South Mountain gray-cheeked salamander, be listed under the Act as endangered or threatened and that critical habitat be designated under the Act. The petition clearly identified itself as such and included the requisite identification information for the petitioner, required at 50 CFR 424.14(a). This finding addresses the South Mountain gray-cheeked salamander.

    Finding

    Based on our review of the petition and sources cited in the petition, we find that the petition does not present substantial scientific or commercial information indicating that the petitioned action may be warranted for the South Mountain gray-cheeked salamander (Plethodon meridianus). Because the petition does not present substantial information indicating that listing the South Mountain gray-cheeked salamander may be warranted, we are not initiating a status review of this species in response to this petition. The basis and scientific support for this finding can be found as an appendix at http://www.regulations.gov under Docket No. FWS-R4-ES-2015-0117 under the Supporting Documents section. However, we ask that the public submit to us any new information that becomes available concerning the status of, or threats to, this species or its habitat at any time (see Table 3 in SUPPLEMENTARY INFORMATION).

    Evaluation of a Petition To List the Southern Dusky Salamander as an Endangered or Threatened Species Under the Act

    Additional information regarding our review of this petition can be found as an appendix at http://www.regulations.gov under Docket No. FWS-R4-ES-2016-0038 under the Supporting Documents section.

    Species and Range

    Southern dusky salamander (Desmognathus auriculatus): Alabama, Florida, Georgia, Louisiana, Mississippi, North Carolina, South Carolina, Texas, Virginia.

    Petition History

    On April 2, 2015, we received a petition from the Coastal Plains Institute and Land Conservancy requesting that southern dusky salamander be listed as threatened under the Act. The petition clearly identified itself as such and included the requisite identification information required at 50 CFR 424.14(a); however, it did not contain copies of supporting documents. We acknowledged receipt of the petition via email on April 22, 2015. Additional materials were received on June 10, 2015. This finding addresses the petition.

    Finding

    Based on our review of the petition and sources cited in the petition, we find that the petition does not present substantial scientific or commercial information indicating that the petitioned action may be warranted for the Southern dusky salamander (Desmognathus auriculatus). Because the petition does not present substantial information indicating that listing the Southern dusky salamander may be warranted, we are not initiating a status review of this species in response to this petition. The basis and scientific support for this finding can be found as an appendix at http://www.regulations.gov under Docket No. FWS-R4-ES-2016-0038 under the Supporting Documents section. However, we ask that the public submit to us any new information that becomes available concerning the status of, or threats to, this species or its habitat at any time (see Table 3 in SUPPLEMENTARY INFORMATION).

    Evaluation of a Petition To Remove the Southwestern Willow Flycatcher From the List of Endangered and Threatened Wildlife

    Additional information regarding our review of this petition can be found as an appendix at http://www.regulations.gov under Docket No. FWS-R2-ES-2016-0039 under the Supporting Documents section.

    Species and Range

    Southwestern willow flycatcher (Empidonax traillii extimus): California, Arizona, New Mexico, Colorado, Utah, and Nevada, Texas; winters in Central and South America.

    Petition History

    On August, 20, 2015, we received a petition dated August 19, 2015, from The Pacific Legal Foundation (representing The Center for Environmental Science, Accuracy, and Reliability; Building Industry Legal Defense Fund; California Building Industry Association; California Cattlemen's Association; New Mexico Business Coalition, New Mexico Cattle Growers Association; New Mexico Farm and Livestock Bureau; and New Mexico Wool Growers Inc.), requesting that the southwestern willow flycatcher (Empidonax traillii extimus) be delisted due to error in information under the Act. The petition clearly identified itself as such and included the requisite identification information for the petitioner, required at 50 CFR 424.14(a). This finding addresses the petition.

    Finding

    Based on our review of the petition and sources cited in the petition, we find that the petition presents substantial scientific or commercial information indicating that the petitioned action (delisting) may be warranted for the Southwestern willow flycatcher (Empidonax traillii extimus), based on information related to taxonomic status. However, during our status review, we will thoroughly evaluate all potential threats to the species, including the extent to which any protections or other conservation efforts have reduced those threats. Thus, for this species, the Service requests any information relevant to whether the species falls within the definition of either an endangered species under section 3(6) of the Act or a threatened species under section 3(20), including information on the five listing factors under section 4(a)(1) and any other factors identified in this finding (see Request for Information for Status Reviews, above).

    Evaluation of Two Petitions To List the Sunda Pangolin Under the Endangered Species Act

    Additional information regarding our review of these petitions can be found as an appendix at http://www.regulations.gov under Docket No. FWS-HQ-ES-2016-0021 under the Supporting Documents section.

    Species and Range

    Sunda pangolin (Manis javanica): Brunei Darussalam; Cambodia; Indonesia; Lao People's Democratic Republic; Malaysia; Myanmar; Singapore; Thailand; Viet Nam.

    Petitions History

    On July 15, 2015, we electronically received a petition from BFUSA, CBD, HSI, HSUS, and IFAW requesting that we list seven species of pangolin (Chinese pangolin (Manis pentadactyla), Sunda pangolin (M. javanica), Philippine pangolin (M. culionensis), Indian pangolin (M. crassicaudata), tree pangolin (M. tricuspis), giant ground pangolin (M. gigantean), and the long-tailed pangolin (M. tetradactyla)) as endangered species under the Act. The petition clearly identified itself as such and included the requisite identification information for the petitioner, required at 50 CFR 424.14(a). In an August 17, 2015, letter to the petitioner, we responded that we had reviewed the information presented in the petition and did not find that the petition warranted an emergency listing under section 4(b)(7) of the Act.

    On July 15, 2015, we electronically received a second petition from CBD, IFAW, HSI, HSUS, and BFUSA requesting that the Service list the same seven species of pangolin (Chinese pangolin (Manis pentadactyla), Sunda pangolin (M. javanica), Philippine pangolin (M. culionensis), Indian pangolin (M. crassicaudata), tree pangolin (M. tricuspis), giant ground pangolin (M. gigantean), and the long-tailed pangolin (M. tetradactyla)) as an endangered species under the similarity of appearance provisions of the Act (section 4(e)), based upon the petitioners' claim of the species' similarity of appearance to the currently listed Temminck's ground pangolin (Manis temminckii). The petition clearly identified itself as such and included the requisite identification information for the petitioner, required at 50 CFR 424.14(a). In an August 17, 2015, letter to the petitioner, we responded that we had reviewed the information presented in the petition and did not find that the petition warranted an emergency listing under section 4(b)(7) of the Act.

    As both petitions address the seven unlisted species of pangolin, we are combining the petitioned actions (listing each species as either threatened or endangered either based on the five factors under section 4(a)(1) of the Act or due to a similarity of appearance under section 4(e) of the Act) into a single 90-day finding for each species. The requested action for listing based on similarity of appearance (section 4(e)) will be considered under Factor E of each finding.

    This finding addresses the Sunda pangolin (Manis javanica).

    Finding

    Based on our review of the petition and sources cited in the petition, we find that the petition presents substantial scientific or commercial information indicating that listing the Sunda pangolin (Manis javanica) may be warranted based on Factors A, B, D, and E. However, during our status review, we will thoroughly evaluate all potential threats to the species, including the extent to which any protections or other conservation efforts have reduced those threats. Thus, for this species, the Service requests any information relevant to whether the species falls within the definition of either an endangered species under section 3(6) of the Act or a threatened species under section 3(20), including information on the five listing factors under section 4(a)(1) and any other factors identified in this finding (see Request for Information for Status Reviews, above).

    Evaluation of Two Petitions To List the Tree Pangolin Under the Endangered Species Act

    Additional information regarding our review of these petitions can be found as an appendix at http://www.regulations.gov under Docket No. FWS-HQ-ES-2016-0022 under the Supporting Documents section.

    Species and Range

    Tree pangolin (Manis tricuspis): Angola (Angola); Benin; Cameroon; Central African Republic; Congo; Congo, The Democratic Republic of the; Côte d'Ivoire; Equatorial Guinea (Bioko, Equatorial Guinea (mainland)); Gabon; Ghana; Guinea; Guinea-Bissau; Kenya; Liberia; Nigeria; Rwanda; Sierra Leone; South Sudan; Tanzania, United Republic of; Togo; Uganda; Zambia.

    Petitions History

    On July 15, 2015, we electronically received a petition from BFUSA, CBD, HSI, HSUS, and IFAW requesting that we list seven species of pangolin (Chinese pangolin (Manis pentadactyla), Sunda pangolin (M. javanica), Philippine pangolin (M. culionensis), Indian pangolin (M. crassicaudata), tree pangolin (M. tricuspis), giant ground pangolin (M. gigantean), and the long-tailed pangolin (M. tetradactyla)) as endangered species under the Act. The petition clearly identified itself as such and included the requisite identification information for the petitioner, required at 50 CFR 424.14(a). In an August 17, 2015, letter to the petitioner, we responded that we had reviewed the information presented in the petition and did not find that the petition warranted an emergency listing under section 4(b)(7) of the Act.

    On July 15, 2015, we electronically received a second petition from CBD, IFAW, HSI, HSUS, and BFUSA requesting that the Service list the same seven species of pangolin (Chinese pangolin (Manis pentadactyla), Sunda pangolin (M. javanica), Philippine pangolin (M. culionensis), Indian pangolin (M. crassicaudata), tree pangolin (M. tricuspis), giant ground pangolin (M. gigantean), and the long-tailed pangolin (M. tetradactyla)) as an endangered species under the similarity of appearance provisions of the Act (section 4(e)), based upon the petitioners' claim of the species' similarity of appearance to the currently listed Temminck's ground pangolin (Manis temminckii). The petition clearly identified itself as such and included the requisite identification information for the petitioner, required at 50 CFR 424.14(a). In an August 17, 2015, letter to the petitioner, we responded that we had reviewed the information presented in the petition and did not find that the petition warranted an emergency listing under section 4(b)(7) of the Act.

    As both petitions address the seven unlisted species of pangolin, we are combining the petitioned actions (listing each species as either threatened or endangered either based on the five factors under section 4(a)(1) of the Act or due to a similarity of appearance under section 4(e) of the Act) into a single 90-day finding for each species. The requested action for listing based on similarity of appearance (section 4(e)) will be considered under Factor E of each finding.

    This finding addresses the tree pangolin (Manis tricuspis).

    Finding

    Based on our review of the petition and sources cited in the petition, we find that the petition presents substantial scientific or commercial information indicating that listing the tree pangolin (Manis tricuspis) may be warranted based on Factors A, B, D, and E. However, during our status review, we will thoroughly evaluate all potential threats to the species, including the extent to which any protections or other conservation efforts have reduced those threats. Thus, for this species, the Service requests any information relevant to whether the species falls within the definition of either an endangered species under section 3(6) of the Act or a threatened species under section 3(20), including information on the five listing factors under section 4(a)(1) and any other factors identified in this finding (see Request for Information for Status Reviews, above).

    Evaluation of a Petition To List the Western Bumble Bee as an Endangered or Threatened Species Under the Act

    Additional information regarding our review of this petition can be found as an appendix at http://www.regulations.gov under Docket No. FWS-R6-ES-2016-0023 under the Supporting Documents section.

    Species and Range

    Western bumble bee (Bombus occidentalis): Alaska, Arizona, California, Colorado, Idaho, Montana, Nebraska, New Mexico, North Dakota, Oregon, South Dakota, Washington, Wyoming, Utah; Canada: Alberta, British Columbia, Saskatchewan, Yukon Territory.

    Petition History

    On September 21, 2015, we received a petition dated September 15, 2015, from Defenders of Wildlife requesting that the western bumble bee be listed as threatened or endangered and critical habitat be designated for this species under the Act. The petition clearly identified itself as such and included the requisite identification information for the petitioner, required at 50 CFR 424.14(a). This finding addresses the petition.

    Finding

    Based on our review of the petition and sources cited in the petition, we find that the petition presents substantial scientific or commercial information indicating that listing the western bumble bee (Bombus occidentalis) may be warranted, based on Factors C, D, and E. However, during our status review, we will thoroughly evaluate all potential threats to the species, including the extent to which any protections or other conservation efforts have reduced those threats. Thus, for the western bumble bee, the Service requests any information relevant to whether the species falls within the definition of either an endangered species under section 3(6) of the Act or a threatened species under section 3(20), including information on the five listing factors under section 4(a)(1) and any other factors identified in this finding (see Request for Information for Status Reviews, above).

    Evaluation of a Petition To List the Yellow-Banded Bumble Bee as an Endangered or Threatened Species Under the Act

    Additional information regarding our review of this petition can be found as an appendix at http://www.regulations.gov under Docket No. FWS-R5-ES-2016-0024 under the Supporting Documents section.

    Species and Range

    Yellow-banded bumble bee (Bombus terricola): Connecticut, Kentucky, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Montana, New Hampshire, New Jersey, New York, North Carolina, North Dakota, Ohio, Pennsylvania, Rhode Island, South Dakota, Tennessee, Vermont, Virginia, West Virginia, Wisconsin; Canada: Alberta, British Columbia, Manitoba, Newfoundland, Nova Scotia, Ontario, Quebec, Saskatchewan.

    Petition History

    On September 15, 2015, we received a petition dated September 15, 2015, from Defenders of Wildlife requesting that the yellow-banded bumble bee (Bombus terricola) be listed as threatened or endangered and critical habitat be designated for this species under the Act. The petition clearly identified itself as such and included the requisite identification information for the petitioner, required at 50 CFR 424.14(a). This finding addresses the petition.

    Finding

    Based on our review of the petition and sources cited in the petition, we find that the petition presents substantial scientific or commercial information indicating that listing the yellow-banded bumble bee (Bombus terricola) may be warranted, based on Factors A, C, D, and E. However, during our status review, we will thoroughly evaluate all potential threats to the species, including the extent to which any protections or other conservation efforts have reduced those threats. Thus, for this species, the Service requests any information relevant to whether the species falls within the definition of either an endangered species under section 3(6) of the Act or a threatened species under section 3(20), including information on the five listing factors under section 4(a)(1) and any other factors identified in this finding (see Request for Information for Status Reviews, above).

    Conclusion

    On the basis of our evaluation of the information presented in the petitions under section 4(b)(3)(A) of the Act, we have determined that the petitions summarized above for the acuna cacus, Arizona night lizard, Arizona wetsalts tiger beetle, Bezy's night lizard, Cheoah Bald salamander, Cow Knob salamander, MacDougal's yellowtops, Monito skink, Navasota ladies-tresses, Patagonia eyed silkmoth, reticulate collared lizard, South Mountain gray-cheeked salamander, and southern dusky salamander do not present substantial scientific or commercial information indicating that the requested actions may be warranted. Therefore, we are not initiating status reviews for these species.

    The petitions summarized above for the African elephant, American burying beetle, Chinese pangolin, deseret milkvetch, giant ground pangolin, Indian pangolin, Leoncita false-foxglove, long-tailed pangolin, Philippine pangolin, Rio Grande chub, Rio Grande sucker, Sunda pangolin, tree pangolin, southwestern willow flycatcher, western bumble bee, and yellow-banded bumble bee present substantial scientific or commercial information indicating that the requested actions may be warranted.

    Because we have found that these petitions present substantial information indicating that the petitioned actions may be warranted, we are initiating status reviews to determine whether these actions under the Act are warranted. At the conclusion of each status review, we will issue a finding, in accordance with section 4(b)(3)(B) of the Act, as to whether or not the Service finds that the petitioned action is warranted.

    It is important to note that the standard for a 90-day finding differs from the Act's standard that applies to a status review to determine whether a petitioned action is warranted. In making a 90-day finding, we consider only the information in the petition and in our files, and we evaluate merely whether that information constitutes “substantial information” indicating that the petitioned action “may be warranted.” In a 12-month finding, we must complete a thorough status review of the species and evaluate the “best scientific and commercial data available” to determine whether a petitioned action “is warranted.” Because the Act's standards for 90-day and 12-month findings are different, a substantial 90-day finding does not mean that the 12-month finding will result in a “warranted” finding.

    References Cited

    A complete list of references cited is available on the Internet at http://www.regulations.gov and upon request from the appropriate lead field offices (contact the person listed under Table 3 in SUPPLEMENTARY INFORMATION).

    Authors

    The primary authors of this notice are staff members of the Ecological Services Program, U.S. Fish and Wildlife Service.

    Authority

    The authority for these actions is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.).

    Dated: February 24, 2016. Stephen Guertin, Acting Director, U.S. Fish and Wildlife Service.
    [FR Doc. 2016-05699 Filed 3-15-16; 8:45 am] BILLING CODE 4333-15-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 648 [Docket No. 150902808-6155-01] RIN 0648-BF04 Fisheries of the Northeastern United States; Amendment 17 to the Atlantic Surfclam and Ocean Quahog Fishery Management Plan AGENCY:

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

    ACTION:

    Proposed rule; request for comments.

    SUMMARY:

    NMFS proposes regulations to implement Amendment 17 to the Atlantic Surfclam and Ocean Quahog Fishery Management Plan. Amendment 17 management measures were developed by the Mid-Atlantic Fishery Management Council to: Add cost recovery provisions for the Individual Transferable Quota component of the fishery; modify how biological reference points are incorporated into the fishery management plan; and remove the plan's optimum yield range. These changes are intended to make the management plan consistent with requirements of the Magnuson-Stevens Act, and to improve the management of these fisheries.

    DATES:

    Comments must be received on or before April 15, 2016.

    ADDRESSES:

    You may submit comments on this document, identified by NOAA-NMFS-2015-0057, by any of the following methods:

    Electronic Submission: Submit all electronic public comments via the Federal e-Rulemaking Portal. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2015-0057, click the “Comment Now!” icon, complete the required fields, and enter or attach your comments.

    Mail: Submit written comments to John K. Bullard, Regional Administrator, NMFS, Greater Atlantic Regional Fisheries Office, 55 Great Republic Drive, Gloucester, MA 01930. Mark the outside of the envelope: “Comments on Surfclam/Ocean Quahog Amendment 17.”

    Instructions: Comments sent by any other method, to any other address or individual, or received after the end of the comment period, may not be considered by NMFS. All comments received are a part of the public record and will generally be posted for public viewing on www.regulations.gov without change. All personal identifying information (e.g., name, address, etc.), confidential business information, or otherwise sensitive information submitted voluntarily by the commenter may be publicly accessible. NMFS will accept anonymous comments (enter “N/A” in the required fields if you wish to remain anonymous). Attachments to electronic comments will be accepted in Microsoft Word, Excel, or Adobe PDF file formats only.

    Copies of Amendment 17, including the draft Environmental Assessment, preliminary Regulatory Impact Review, and economic analysis, are available from the Mid-Atlantic Fishery Management Council, 800 North State Street, Suite 201, Dover, DE 19901. The EA/RIR is also accessible via the Internet at: www.greateratlantic.fisheries.noaa.gov.

    FOR FURTHER INFORMATION CONTACT:

    Douglas Potts, Fishery Policy Analyst, 978-281-9341.

    SUPPLEMENTARY INFORMATION: Background

    This action proposes regulations to implement Amendment 17 to the Atlantic Surfclam and Ocean Quahog Fishery Management Plan (FMP). The Mid-Atlantic Fishery Management Council developed this amendment to establish a program to recover the costs of managing the surfclam and ocean quahog individual transferable quota (ITQ) fisheries, as required by the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), and to make administrative changes to improve the efficiency of the FMP.

    Cost Recovery

    The Magnuson-Stevens Act requires each limited access privilege program, such as the surfclam/ocean quahog ITQ program, to include measures to recover the costs of management, data collection and analysis, and enforcement activities involved with the program. This action proposes to implement a cost recovery program for the surfclam and ocean quahog ITQ fisheries modeled on the Council's existing cost recovery program for the Tilefish Individual Fishing Quota (IFQ) Program.

    Under the proposed program, any surfclam or ocean quahog ITQ permit holder (also referred to in this preamble as “allocation holders”) who has quota share (i.e., receives an initial allocation of cage tags each year) would be responsible for paying a fee at the end of the year. The fee would be based on the number of the ITQ permit holder's cage tags that were ultimately used to land clams that year. In the first quarter of each year, the Greater Atlantic Regional Fisheries Office (GARFO) would announce the fee percentage and the associated per-tag fee for that year, and distribute this announcement widely. Although annual fee information would not be published in the Federal Register, distribution of the GARFO announcement would include posting it on the GARFO Web site and sending it to each ITQ permit holder with quota share. The fee percentage would be based on the total recoverable costs from the prior fiscal year, adjusted for any prior over- or under-collection, divided by the total ex-vessel value of the fishery. The resulting percentage cannot exceed the 3-percent statutory maximum. Then NMFS would calculate a per-tag fee based on the total number of cage tags used to land surfclams or ocean quahogs in the previous year. This tag fee would be separate from, and in addition to, the price allocation holders currently pay to the tag vendor to obtain the physical cage tags each year.

    This process includes an inherent assumption that a similar number of cage tags will be used each year. While the fishery has been largely stable over time, many factors (e.g., weather events, market demand, etc.) may result in the use of more or fewer tags in any given year. As a result, we fully anticipate that, in some years, we will collect more or less money than is necessary to recover our costs. Refunding over-collections and issuing supplemental bills to make up for shortfalls would increase the cost of administering the fishery, which would increase the amount charged in bills the following year. To avoid these additional costs, we would apply any over- or under-collection to our calculation of recoverable costs and per-tag fees for the following year. Our communications with the ITQ permit holders each year will make clear that any prior over- or under-collection adjustments will be incorporated into the following year's cost-recovery billing.

    The Council produced an analysis as part of Amendment 17 using 2013 landings and ex-vessel value and assuming a 0.2-percent fee, which represents approximately $100,000 of recoverable costs. This analysis showed that fees would have been $0.56 per surfclam cage tag and $0.27 per ocean quahog cage tag. A scenario using the statutory maximum 3 percent showed the fees could have been as high as $8.36 per surfclam tag and $4.10 per ocean quahog tag. However, reaching that 3-percent maximum would require recoverable costs to be over $1.5 million, far higher than any reasonable estimate for the management costs for these fisheries. Annual recoverable costs for the first 5 years of our other Greater Atlantic Region IFQ fisheries have averaged approximately $21,000 for the Tilefish IFQ Program, and $113,000 for the Limited Access General Category Scallop IFQ Program. Based on the management requirements of these programs, we anticipate total costs for the surfclam and ocean quahog ITQ program would be somewhere between the costs of these other programs.

    If allocation holders transfer some or all of their cage tags or quota share after the start of the fishing year, they would still be liable for any cost recovery fee based on landings of their initial allocation. Here is an example of how this might work for an allocation holder: Carol has a surfclam ITQ permit with a quota share ratio of 0.02, meaning she is allocated 2 percent of the total surfclam ITQ quota each year. If in a given year the quota is 1 million bushels (53.2 million L), Carol's allocation would be 20,000 bushels (1.6 million L), or 625 cage tags (i.e., 20,000 (1.6 million L) bushels divided by 32 bushels (1,700 L) per cage). In the first quarter of the year, NMFS announces that the fee will be $0.50 per tag. Over the course of the year, Carol uses 200 cages to harvest surfclams, and leases 400 cage tags to Bob. Bob in turn uses 100 cage tags and leases the 300 remaining tags to Joe who uses 150. Because each cage tag has a unique number, we can identify which tags originated from Carol's allocation no matter how many times they were leased. Of the original 625 tag allocation a total of 450 tags were used; 200 by Carol, 100 by Bob, 150 by Joe, and 175 tags were never used. At the end of the fishing year, Carol would receive a cost recovery bill for $225.00 based on the $0.50 tag fee multiplied by the 450 tags that were used to land surfclams.

    We have already begun tracking recoverable costs in these fisheries. To the extent possible, we are tracking the recoverable costs of the surfclam and ocean quahog fisheries separately, although some costs are shared (e.g., routine maintenance of our database for tracking allocations and cage tags). Under these proposed regulations, at the start of the 2017 calendar year, we would use the total recoverable costs from the 2016 fiscal year (October 1, 2015, through September 30, 2016) and the total value of the fisheries in the 2016 calendar year, to calculate fee percentages for both surfclam and ocean quahogs. We would then use the total number of tags used during the 2016 fishing year to determine a per-tag fee for the 2017 fishing year.

    In early 2018 (most likely February or March) we would issue the first cost recovery bills based on how many cage tags were used in 2017 and the 2017 per-tag fee. At the same time, we would announce the fee percentage and per-tag fees for the 2018 fishing year. If the total amount to be collected is higher or lower than the total recoverable costs used to calculate the 2017 per-tag fee (i.e., the fiscal year 2016 recoverable costs), we would adjust the fiscal year 2017 recoverable costs accordingly when calculating the 2018 per-tag fee. This anticipated timeline is detailed in Table 1.

    Table 1—Surfclam and Ocean Quahog Proposed Cost Recovery Implementation Timeline Date Anticipated action October 2015 NMFS begins tracking recoverable costs for surfclam and ocean quahog ITQ fisheries. March 2017 NMFS announces the 2017 cost recovery per-tag fee, based on recoverable costs in fiscal year 2016 and the total number of cage tags used in calendar year 2016. March 2018 NMFS issues a 2017 bill to each ITQ shareholder based on the previously announced per-tag fee and how many of the shareholder's 2017 cage tags were ultimately used to land clams. March 2018 Concurrent with issuing bills for 2017, NMFS announces the 2018 cost recovery per-tag fee, based on costs in fiscal year 2017 (adjusted for any anticipated over- or under-collection) and the total number of cage tags used in calendar year 2017. Subsequent years Each year, NMFS would issue bills for the previous fishing year and announce the cost recovery per-tag fee for the current fishing year.

    Cost recovery bills would be due within 30 days of the date of the bill, and would be paid using the Greater Atlantic Regional Fisheries Office's fishing industry Web site: Fish Online (www.greateratlantic.fisheries.noaa.gov/apps/login/login). Fish Online is a secure Web site and NMFS provides a username and password for individuals to access their accounts. Members of the fishing industry may use the site to check details about their fishing permit and landings. The Web page has been used since 2010 to collect cost recovery payments for the Tilefish IFQ and Limited Access General Category Scallop IFQ fisheries. Cost recovery bills may be paid with a credit card or with an account number and routing number from a bank account, often referred to as an Automated Clearing House or ACH payment. Once bills are issued, ITQ shareholders would be able to log onto Fish Online and access the Cost Recovery section. Payments made through Fish Online are processed using the U.S. Treasury Department's Pay.gov tool, and no bank account or credit card information is retained by NMFS. We would not be able to accept partial payments or advance payments before bills are issued. We do not anticipate that other payment methods would be accepted, as the proposed payment system has been effective for other cost recovery programs. However, other payment methods may be authorized if the Regional Administrator determines that electronic payment is not practicable.

    The proposed regulations include procedures in case an ITQ permit holder should fail to pay their cost recovery bill. If a bill is not paid by the due date, NMFS would issue a demand letter, formally referred to as an initial administrative determination. This letter would describe the past-due fee, describe any applicable interest or penalties that may apply, stipulate a 30-day deadline to either pay the amount due or submit a formal appeal to the Regional Administrator, and provide instructions for submitting such an appeal. If no appeal is submitted by the deadline, the Regional Administrator would issue a final decision letter. An appeal must be submitted in writing, allege credible facts or circumstances, and include any relevant information or documentation to support the appeal. If an appeal is submitted, the Regional Administrator would appoint an appeals officer to determine if there is sufficient information to support the appeal and that all procedural requirements have been met. The appeals officer would then review the record and issue a recommendation to the Regional Administrator. The Regional Administrator, acting on behalf of the Secretary of Commerce, would then review the appeal and issue a written decision. If the Regional Administrator's final determination (whether or not there was an appeal) finds that ITQ permit holder is out of compliance, full payment would be required within 30 days. Following a final determination, we may also suspend the ITQ permit, thereby prohibiting any transfer of cage tags or quota share, use of associated cage tags to land surfclams or ocean quahogs, or renewal of the ITQ permit until full payment, including any interest or penalties, is received. If full payment is not received within this final 30-day period as required, we may then refer the matter to the appropriate authorities, including the Department of Treasury, for collection.

    Each year NMFS would issue a report on the status of the ITQ cost recovery program. This report would provide details of the recoverable costs to be collected, the success of previous collection efforts, and other relevant information.

    Biological Reference Points

    Under National Standard 1, the Magnuson-Stevens Act requires that each Council FMP define overfishing as a rate or level of fishing mortality (F) that jeopardizes a fishery's capacity to produce maximum sustainable yield (MSY) on a continuing basis, and defines an overfished stock as a stock size that is less than a minimum biomass threshold (see 50 CFR 600.310(e)(2)). The Magnuson-Stevens Act also requires that each FMP specify objective and measurable status determination criteria (i.e., biological reference points) for identifying when stocks covered by the FMP are overfished or subject to overfishing (see section 303(a)(10), 16 U.S.C. 1853). To fulfill these requirements, status determination criteria are comprised of two components: (1) A maximum fishing mortality threshold; and (2) a minimum stock size threshold.

    Currently, the biological reference points in the FMP were set by Amendment 12 for ocean quahog (October 26, 1999; 64 FR 57587) and Amendment 13 for surfclam (December 16, 2003; 68 FR 69970). Although several stock assessments since these amendments have produced new biological reference points, there has not been an FMP amendment to adjust the figures in the plan. As a result, the definitions in the FMP have become inconsistent with the best scientific information available. This action would modify how these biological reference points are defined in the FMP. Rather than using specific definitions, the FMP would include broad criteria to allow for greater flexibility in incorporating changes to the definitions of the maximum fishing mortality threshold and/or minimum stock size threshold as the best scientific information consistent with National Standards 1 and 2 becomes available. The Council has already adopted this approach in several of its other FMPs, and this change would make the Surfclam and Ocean Quahog FMP consistent with these other FMPs.

    The maximum fishing mortality threshold for surfclams and ocean quahogs would be defined as FMSY (or a reasonable proxy thereof), which is a function of productive capacity, and would be based upon the best scientific information consistent with National Standards 1 and 2. Specifically, FMSY is the fishing mortality rate associated with MSY. The maximum fishing mortality threshold (FMSY) or a reasonable proxy may be defined as a function of (but not limited to): Total stock biomass; spawning stock biomass; total egg production; and may include males, females, both, or combinations and ratios thereof that provide the best measure of productive capacity for each of the species managed under the FMP. Exceeding the established fishing mortality threshold would constitute overfishing as defined by the Magnuson-Stevens Act.

    The minimum stock size threshold for each of the species under the FMP would be defined as 1/2 BMSY (or a reasonable proxy thereof), which is a function of productive capacity, and would be based upon the best scientific information, consistent with National Standards 1 and 2. BMSY is the stock biomass associated with MSY. The minimum stock size threshold (1/2 BMSY) or a reasonable proxy may be defined as a function of (but not limited to): Total stock biomass; spawning stock biomass; total egg production; and may include males, females, both, or combinations and ratios thereof that provide the best measure of productive capacity for each of the species managed under the FMP. The minimum stock size threshold would be the level of productive capacity associated with the relevant 1/2 MSY level. Should the measure of productive capacity for the stock fall below this minimum threshold, the stock would be considered overfished as defined by the Magnuson-Stevens Act. The target for rebuilding, when applicable, is specified as BMSY (or reasonable proxy thereof) at the level of productive capacity associated with the relevant MSY level, under the same definition of productive capacity as specified for the minimum stock size threshold.

    Specific definitions or modifications to the status determinations criteria, and their associated values, would result from the most recent peer-reviewed stock assessments and their panelist recommendations. The Northeast Regional Stock Assessment Workshop/Stock Assessment Review Committee (SAW/SARC) process is the primary mechanism utilized in the Greater Atlantic Region at present to review scientific stock assessment advice, including status determination criteria, for federally-managed species. There are also periodic reviews, which occur outside the SAW/SARC process that are subject to rigorous peer-review and may also result in scientific advice to modify or change the existing stock status determination criteria. These periodic reviews outside the SARC process could include any of the following review processes listed below, as deemed appropriate by the Council and NMFS.

    • Council Scientific and Statistical Committee (SSC) Review

    • Council externally contracted reviews with independent experts (e.g., Center for Independent Experts—CIE)

    • NMFS internally conducted review (e.g., comprised of NMFS scientific and technical experts from NMFS Science Centers or Regions)

    • NMFS externally contracted review with independent experts (e.g., CIE)

    The scientific advice developed on stock status determination criteria would be provided to the Council's SSC. The SSC would use this information to develop acceptable biological catch (ABC) recommendations that address scientific uncertainty based on the information provided in the peer reviewed assessment of the stock. The SSC would provide these recommendations to the Council. In addition, the Council's Industry Advisory groups are often engaged to provide management recommendations to the Council. The Council would then consider all available information and advice when developing its own recommendations to put forward through the regulatory process for setting the annual specifications for the upcoming fishing year, which is the primary mechanism for updating and adjusting management measures on a regular basis in order to meet the goals of the FMP.

    Optimum Yield

    Currently, the FMP specifies a surfclam optimum yield range of 1.85-3.40 million bushels (98.5 to 181.0 million L), and an ocean quahog the optimum yield range of 4.00-6.00 million bushels (213.0 to 319.4 million L). The Council must select commercial quotas within these ranges. Under the current FMP process, modification to the upper end of the ranges would require a framework adjustment. Commercial quotas may be set below the lower bounds if the SSC sets a lower ABC, resulting in an optimum yield range that is higher than ABC. The current optimum yield ranges in the FMP were based on scientific information and industry input from the 1980's, and have not been adjusted to reflect subsequent changes in our understanding of the biology of these stocks.

    This action proposes to remove the optimum yield ranges from the FMP, but commercial quotas for surfclam and ocean quahog would continue to be set under the existing system of catch limits. This is consistent with the other FMPs that the Council manages; surfclam and ocean quahog are the only stocks with optimum yield ranges specified in the FMP.

    As prescribed under this quota setting process, the Council may not exceed the ABC recommendations of the SSC, and would continue to specify annual catch limits, targets, and commercial quotas as otherwise described in the FMP. As part of the specifications process, the advisory panel would develop recommendations for commercial quotas, including optimum yield recommendations which would be provided to the Council.

    This action also proposes a modification to the regulations pursuant to the Secretary's authority under section 305(d) of the Magnuson-Stevens Act (16 U.S.C. 1855(d)) to ensure that FMPs are implemented as intended and consistent with the requirements of the Magnuson-Stevens Act. This action proposes to modify the regulations at 50 CFR 648.11(a) so that vessels holding a Federal permit for Atlantic surfclam or ocean quahog are included on the list of vessels required to carry a NMFS-certified fisheries observer if requested by the Regional Administrator. All other Federal fisheries permits issued in the Greater Atlantic Region are already covered by either § 648.11(a) or a similar provision at § 697.12(a), which applies to vessels with an American lobster permit. The recent Standardized Bycatch Reporting Methodology (SBRM) Omnibus Amendment final rule (June 30, 2015; 80 FR 37182) modified how at-sea observers are assigned to fishing vessels. The Council's discussions of that action and analysis of alternatives clearly indicate the Council intended for the requirement (that vessels carry a NMFS-certified observer if requested by the Regional Administrator) to apply to all fisheries subject to the SBRM Omnibus Amendment final rule. The surfclam and ocean quahog fisheries have historically had very low bycatch and have been a low priority for observer coverage. Prior to the SBRM Omnibus Amendment final rule, NMFS used its discretion to prioritize observer coverage to other fishing fleets. The SBRM Omnibus Amendment final rule removed this discretion and implemented a formulaic process for assigning observer coverage across fisheries. This resulted in observer coverage being assigned to the surfclam and ocean quahog fisheries. Subsequent to the publication of the SBRM Omnibus Amendment final rule, it became apparent that § 648.11(a) does not currently apply to surfclam and ocean quahog vessel permits. Over 700 vessels have a surfclam or ocean quahog permit. However, all but 15 of those vessels are already subject to this observer requirement because they also carry another Federal permit.

    Pursuant to section 303(c) of the Magnuson-Stevens Act, the Council has deemed that this proposed rule is necessary and appropriate for the purpose of implementing Amendment 17, with the exception of the measure noted above as proposed under the Secretary's authority under section 305(d) of the Magnuson-Stevens Act.

    Classification

    Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this proposed rule is consistent with Amendment 17, other provisions of the Magnuson-Stevens Act, and other applicable law, subject to further consideration after public comment.

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

    The Council prepared a draft environmental assessment (EA) for this FMP amendment that analyzes the impacts on the environment as a result of this action. A copy of the draft EA is available from the Federal e-Rulemaking portal www.regulations.gov. Type “NOAA-NMFS-2015-0057” in the Enter Keyword or ID field and click search. A copy of the draft EA is also available upon request from the Council (see ADDRESSES).

    The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration (SBA) that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities. The Council prepared an analysis of the potential economic impacts of this action, which is included in the draft EA for this action and supplemented by information contained in the preamble of this proposed rule. The SBA defines a small business in the commercial harvesting sector, as a firm with receipts (gross revenues) of up to $5.5 million for shellfish businesses and $20.5 million for finfish businesses. Using these definitions, there are 26 small entities and 3 large entities that landed surfclam and/or ocean quahog in 2013, the most recent year of data available to the Council during development of Amendment 17.

    The alternatives for the mechanism to update biological reference points and to change the optimum yield range in the FMP are administrative in nature. None of the alternatives are expected to change fishing methods or activities, nor will they alter the catch and landings limits for these species or the allocation of the resources among user groups. These administrative alternative measures are not expected to impact the economic aspects of these fisheries, as they are not expected to produce changes in landings, prices, consumer and producer surplus, harvesting costs, enforcement costs, or to have distributional effects.

    Four alternatives were considered for the development of a cost recovery program. All of the alternatives would recover the costs of management, data collection and analysis, and enforcement activities related to the ITQ program, as required by the Magnuson-Stevens Act. Each alternative varies in how these costs would be distributed across the fishery. The total recovered costs could be up to the statutory maximum of 3 percent of the ex-vessel value of surfclams and ocean quahogs harvested under the ITQ program, although estimates predict that the recoverable costs would be much lower than this maximum. A conservative initial estimate placed costs at approximately $100,000 annually, or about 0.2 percent of the ex-vessel value of the fishery in 2013. For comparison, both a 3-percent fee and a 0.2-percent fee were used in the analysis of potential economic impact of the alternatives. Table 2 presents the average cost associated with a 0.2- and 3-percent cost recovery program for active surfclam and ocean quahog fishery small entities in 2013.

    Table 2—Active Surfclam and Ocean Quahog Fishery Small Entities in 2013, Including Entity Average Surfclam and Ocean Quahog (SC/OQ) Revenues Revenue
  • (millions of dollars (M))
  • Count
  • of small
  • entity
  • firms
  • Average
  • gross
  • receipts
  • Average
  • SC/OQ
  • receipts
  • Average
  • cost
  • associated with
  • a 0.2-percent
  • fee recovery
  • program
  • Average
  • cost
  • associated with
  • a 3-percent
  • fee recovery
  • program
  • Per firm
  • average cost
  • associated with
  • a 0.2-percent
  • fee recovery
  • program
  • Per firm
  • average cost
  • associated with
  • a 3-percent
  • fee recovery
  • program
  • 0-1M 17 $421,701 $393,488 $787 $11,805 $46 $694 1-2M 5 1,366,782 1,355,820 2,712 40,675 542 8,135 2-5.5M 4 3,591,773 3,489,377 6,979 104,681 1,745 26,170 Total 26 1,091,150 1,054,843 2,110 31,645 81 1,217

    As illustrated by this analysis and Table 2 (above), the anticipated annual fee for each small entity is very low under both the anticipated 0.2-percent fee and the statutory maximum 3-percent fee, and would not have a significant economic impact on a substantial number of small entities.

    As a result, an initial regulatory flexibility analysis is not required and none has been prepared.

    List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: March 10, 2016. Samuel D. Rauch III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

    For the reasons set out in the preamble, 50 CFR part 648 is proposed to be amended as follows:

    PART 648—FISHERIES OF THE NORTHEASTERN UNITED STATES 1. The authority citation for part 648 continues to read as follows: Authority:

    16 U.S.C. 1801 et seq.

    2. In § 648.11, revise paragraph (a) to read as follows:
    § 648.11 At-sea sea sampler/observer coverage.

    (a) The Regional Administrator may request any vessel holding a permit for Atlantic sea scallops, NE multispecies, monkfish, skates, Atlantic mackerel, squid, butterfish, scup, black sea bass, bluefish, spiny dogfish, Atlantic herring, tilefish, Atlantic surfclam, ocean quahog, or Atlantic deep-sea red crab; or a moratorium permit for summer flounder; to carry a NMFS-certified fisheries observer. A vessel holding a permit for Atlantic sea scallops is subject to the additional requirements specific in paragraph (g) of this section. Also, any vessel or vessel owner/operator that fishes for, catches or lands hagfish, or intends to fish for, catch, or land hagfish in or from the exclusive economic zone must carry a NMFS-certified fisheries observer when requested by the Regional Administrator in accordance with the requirements of this section.

    3. In § 648.14, redesignate paragraphs (j)(3) through (6) as (j)(4) through (7) and add paragraph (j)(3) to read as follows:
    § 648.14 Prohibitions.

    (j) * * *

    (3) ITQ cost recovery. (i) Fail to pay an ITQ cost recovery bill for which they are responsible by the due date specified in a final decision, as specified at § 648.74(c)(6)(iii)(C).

    (ii) Possess or land surfclams or ocean quahogs harvested in or from the EEZ if the associated ITQ permit has been suspended for non-payment, as specified at § 648.74(c)(6)(iii)(C).

    4. In § 648.72, revise paragraphs (a) introductory text and (a)(1) to read as follows:
    § 648.72 Surfclam and ocean quahog specifications.

    (a) Establishing catch quotas. The amount of surfclams or ocean quahogs that may be caught annually by fishing vessels subject to these regulations will be specified for up to a 3-year period by the Regional Administrator. Specifications of the annual quotas will be accomplished in the final year of the quota period, unless the quotas are modified in the interim pursuant to paragraph (b) of this section.

    (1) Quota reports. On an annual basis, MAFMC staff will produce and provide to the MAFMC an Atlantic surfclam and ocean quahog annual quota recommendation paper based on the ABC recommendation of the SSC, the latest available stock assessment report prepared by NMFS, data reported by harvesters and processors, and other relevant data, as well as the information contained in paragraphs (a)(1)(i) through (vi) of this section. Based on that report, and at least once prior to August 15 of the year in which a multi-year annual quota specification expires, the MAFMC, following an opportunity for public comment, will recommend to the Regional Administrator annual quotas and estimates of DAH and DAP for up to a 3-year period. In selecting the annual quotas, the MAFMC shall consider the current stock assessments, catch reports, and other relevant information concerning:

    (i) Exploitable and spawning biomass relative to the quotas.

    (ii) Fishing mortality rates relative to the quotas.

    (iii) Magnitude of incoming recruitment.

    (iv) Projected effort and corresponding catches.

    (v) Geographical distribution of the catch relative to the geographical distribution of the resource.

    (vi) Status of areas previously closed to surfclam fishing that are to be opened during the year and areas likely to be closed to fishing during the year.

    5. In § 648.74, add paragraph (c) to read as follows:
    § 648.74 Individual Transferable Quota (ITQ) Program.

    (c) ITQ cost recovery—(1) General. The cost recovery program collects fees of up to three percent of the ex-vessel value of surfclams or ocean quahogs harvested under the ITQ program in accordance with the Magnuson-Stevens Act. NMFS collects these fees to recover the actual costs directly related to the management, data collection, and enforcement of the surfclam and ocean quahog ITQ program.

    (2) Fee responsibility. If you are an ITQ permit holder who holds ITQ quota share and receives an annual allocation pursuant to paragraph (a) of this section, you shall incur a cost recovery fee, based on all landings of surfclams or ocean quahogs authorized under your initial annual allocation of cage tags. You are responsible for paying the fee assessed by NMFS, even if the landings are made by another ITQ permit holder (i.e., if you transfer cage tags to another individual who subsequently uses those tags to land clams). If you permanently transfer your quota share, you are still responsible for any fee that results from your initial annual allocation of cage tags even if the landings are made after the quota share is permanently transferred.

    (3) Fee basis. NMFS will establish the fee percentages and corresponding per-tag fees for both the surfclam and ocean quahog ITQ fisheries each year. The fee percentages cannot exceed three percent of the ex-vessel value of surfclams and ocean quahogs harvested under the ITQ fisheries pursuant to section 304(d)(2)(B) of the Magnuson-Stevens Act.

    (i) Calculating fee percentage. In the first quarter of each calendar year, NMFS will calculate the fee percentages for both the surfclam and ocean quahog ITQ fisheries based on information from the previous year. NMFS will use the following equation to annually determine the fee percentages: Fee percentage = the lower of 3 percent or (DPC/V) × 100, where:

    (A) “DPC,” or direct program costs, are the actual incremental costs for the previous fiscal year directly related to the management, data collection, and enforcement of the ITQ program. “Actual incremental costs” mean those costs that would not have been incurred but for the existence of the ITQ program. If the amount of fees collected by NMFS is greater or lesser than the actual incremental costs incurred, the DPC will be adjusted accordingly for calculation of the fee percentage in the following year.

    (B) “V” is the total ex-vessel value from the previous calendar year attributable to the ITQ fishery.

    (ii) Calculating per-tag fee. To facilitate fee collection, NMFS will convert the annual fee percentages into per-tag fees for both the surfclam and ocean quahog ITQ fisheries. NMFS will use the following equation to determine each per-tag fee: Per-Tag Fee = (Fee Percentage × V)/T, where:

    (A) “T” is the number of cage tags used, pursuant to § 648.77, to land shellfish in the ITQ fishery in the previous calendar year.

    (B) “Fee percentage” and “V” are defined in paragraph (c)(i) of this section.

    (C) The per-tag fee is rounded down so that it is expressed in whole cents.

    (iii) Publication. During the first quarter of each calendar year, NMFS will announce the fee percentage and per-tag fee for the surfclam and ocean quahog ITQ fisheries, and publish this information on the Regional Office Web site (www.greateratlantic.fisheries.noaa.gov).

    (4) Calculating individual fees. If you are responsible for a cost recovery fee under paragraph (c)(2) of this section, the fee amount is the number of ITQ cage tags you were initially allocated at the start of the fishing year that were subsequently used to land shellfish multiplied by the relevant per-tag fee, as described in paragraph (c)(3)(ii) of this section. If no tags from your initial allocation are used to land clams you will not incur a fee.

    (5) Fee payment and collection. NMFS will send you a bill each year for any applicable ITQ cost recovery fee.

    (i) Payment due date. You must submit payment within 30 days of the date of the bill.

    (ii) Payment method. You may pay your bill electronically using a credit card or direct Automated Clearing House withdrawal from a designated checking account through the Federal web portal, www.pay.gov, or another internet site designated by the Regional Administrator. Instructions for electronic payment will be included with your bill and are available on the payment Web site. Alternatively, payment by check may be authorized by the Regional Administrator if he/she determines that electronic payment is not practicable.

    (6) Payment compliance. If you do not submit full payment by the due date, NMFS will notify you in writing via an initial administrative determination (IAD) letter.

    (i) IAD. In the IAD, NMFS will:

    (A) Describe the past-due fee;

    (B) Describe any applicable interest charges that may apply;

    (C) Provide you 30 days to either pay the specified amount or submit an appeal; and

    (D) Include instructions for submitting an appeal.

    (ii) Appeals. If you wish to appeal the IAD, your appeal must:

    (A) Be in writing;

    (B) Allege credible facts or circumstances;

    (C) Include any relevant information or documentation to support your appeal; and

    (D) Be received by NMFS no later than 30 calendar days after the date on the IAD. If the last day of the time period is a Saturday, Sunday, or Federal holiday, the time period will extend to the close of the business on the next business day. Your appeal must be mailed or hand delivered to the address specified in the IAD.

    (iii) Final decision—(A) Final decision on your appeal. If you appeal an IAD, the Regional Administrator shall appoint an appeals officer. After determining there is sufficient information and that all procedural requirements have been met, the appeals officer will review the record and issue a recommendation on your appeal to the Regional Administrator, which shall be advisory only. The recommendation must be based solely on the record. Upon receiving the findings and recommendation, the Regional Administrator, acting on behalf of the Secretary of Commerce, will issue a written decision on your appeal which is the final decision of the Department of Commerce.

    (B) Final decision if you do not appeal. If you do not appeal the IAD within 30 calendar days, NMFS will notify you via a final decision letter. The final decision will be from the Regional Administrator and is the final decision of the Department of Commerce.

    (C) If the final decision determines that you are out of compliance. (1) After the final decision has been made, NMFS may suspend your ITQ permit, thereby prohibiting any transfer of cage tags or quota share, use of associated cage tags to land surfclams or ocean quahogs, or renewal of your ITQ permit until the outstanding balance is paid in full, including any applicable interest.

    (2) The final decision will require full payment within 30 calendar days.

    (3) If full payment is not received within 30 calendar days of issuance of the final decision, NMFS may refer the matter to the appropriate authorities for the purposes of collection or enforcement.

    (7) Annual report. NMFS will publish annually a report on the status of the ITQ cost recovery program. The report will provide details of the costs incurred by NMFS for the management, data collection, and enforcement of the surfclam and ocean quahog ITQ program, and other relevant information at the discretion of the Regional Administrator.

    6. In § 648.79, revise paragraph (a)(1) to read as follows:
    § 648.79 Surfclam and ocean quahog framework adjustments to management measures.

    (a)* * *

    (1) Adjustment process. The MAFMC shall develop and analyze appropriate management actions over the span of at least two MAFMC meetings. The MAFMC must provide the public with advance notice of the availability of the recommendation(s), appropriate justification(s) and economic and biological analyses, and the opportunity to comment on the proposed adjustment(s) at the first meeting, and prior to and at the second MAFMC meeting. The MAFMC's recommendations on adjustments or additions to management measures must come from one or more of the following categories: Adjustments within existing ABC control rule levels; adjustments to the existing MAFMC risk policy; introduction of new AMs, including sub-ACTs; description and identification of EFH (and fishing gear management measures that impact EFH); habitat areas of particular concern; set-aside quota for scientific research; VMS; and suspension or adjustment of the surfclam minimum size limit. Issues that require significant departures from previously contemplated measures or that are otherwise introducing new concepts may require an amendment of the FMP instead of a framework adjustment.

    [FR Doc. 2016-05846 Filed 3-15-16; 8:45 am] BILLING CODE 3510-22-P lley End:
    81 51 Wednesday, March 16, 2016 Notices DEPARTMENT OF AGRICULTURE Agricultural Marketing Service [Document Number AMS-NOP-15-0085; NOP-15-16] Notice of Meeting of the National Organic Standards Board AGENCY:

    Agricultural Marketing Service, USDA.

    ACTION:

    Notice of public meeting.

    SUMMARY:

    In accordance with the Federal Advisory Committee Act, as amended, (5 U.S.C. App.), the Agricultural Marketing Service (AMS), Department of Agriculture, is announcing a meeting of the National Organic Standards Board (NOSB) to assist the Department in the development of standards for substances to be used in organic production and to advise the Secretary of Agriculture on any other aspects of the implementation of Organic Foods Production Act.

    DATES:

    The Board will hold one webinar at which it will receive public comment: April 19 from 1:00 p.m. to approximately 4:00 p.m. Eastern Time. A face-to-face meeting will be held April 25-27, 2016, from approximately 8:30 a.m. to approximately 6:00 p.m. Eastern Time. Deadline to sign up for oral comment: Midnight Eastern Time, 30 days after publication of this notice. Deadline to submit written comments: Midnight Eastern Time, 30 days after publication of this notice.

    ADDRESSES:

    The April 19, 2016 meeting will take place via webinar (access information will be available on the NOP Web site prior to the webinar). The April 25-27, 2016 meeting will take place at the Omni Shoreham Hotel, 2500 Calvert Street NW., Washington, DC 20008. http://www.omnihotels.com/hotels/washington-dc-shoreham. Detailed information pertaining to the meeting, including instructions about providing written and oral comments can be found at www.ams.usda.gov/NOSBMeetings.

    FOR FURTHER INFORMATION CONTACT:

    Ms. Michelle Arsenault, Advisory Committee Specialist, National Organic Standards Board, USDA-AMS-NOP, 1400 Independence Ave. SW., Room 2642-S, Mail Stop 0268, Washington, DC 20250-0268; Phone: (202) 720-3252; Email: [email protected]

    SUPPLEMENTARY INFORMATION:

    The NOSB makes recommendations to the Department of Agriculture about whether substances should be allowed or prohibited in organic production and/or handling, assists in the development of standards for organic production, and advises the Secretary on other aspects of the implementation of the Organic Foods Production Act (7 U.S.C. 6501-6522). The public meeting allows the NOSB to discuss and vote on proposed recommendations to the USDA, receive updates from the USDA National Organic Program (NOP) on issues pertaining to organic agriculture, and receive comments from the organic community. The meeting is open to the public. The meeting agenda, NOSB proposals and discussion documents, instructions for submitting and viewing public comments, and instructions for requesting time for oral comments will be available on the AMS Web site at www.ams.usda.gov/NOSBMeetings. Meeting topics will encompass a wide range of issues, including: Substances petitioned for addition to or deletion from the National List of Allowed and Prohibited Substances (National List), substances on the National List that require NOSB review before their 2018 sunset dates, and guidance on organic policies. At this meeting, the NOSB will begin its review of substances that have a sunset date in 2018.

    Public Comments

    Comments should address specific topics noted on the meeting agenda.

    Written comments:

    Written public comments will be accepted on or before midnight Eastern Time, 30 days after publication of this notice via www.regulations.gov. Comments submitted after this date will be provided to the NOSB, but Board members may not have adequate time to consider those comments prior to making a recommendation. The NOP strongly prefers comments to be submitted electronically; however, written comments may also be submitted (i.e. postmarked) by the deadline, via mail to Ms. Michelle Arsenault listed under FOR FURTHER INFORMATION.

    Oral Comments:

    The NOSB is providing the public multiple dates and opportunities to provide oral comments and will accommodate as many individuals and organizations as time permits. Persons or organizations wishing to make oral comments must pre-register by midnight Eastern Time, 30 days after publication of this notice, and can only register for one speaking slot: Either during the webinar, April 19, 2016, or at the face-to-face meeting April 25-27, 2016. Instructions for registering and participating in the webinar can be found at www.ams.usda.gov/NOSBMeetings or by contacting Michelle Arsenault listed under FOR FURTHER INFORMATION CONTACT.

    Meeting Accommodations: The meeting hotel is ADA Compliant, and the USDA provides reasonable accommodation to individuals with disabilities where appropriate. If you need a reasonable accommodation to participate in this public meeting, please notify Michelle Arsenault listed under FOR FURTHER INFORMATION CONTACT. Determinations for reasonable accommodation will be made on a case-by-case basis.

    Dated: March 10, 2016. Elanor Starmer, Acting Administrator, Agricultural Marketing Service.
    [FR Doc. 2016-05835 Filed 3-15-16; 8:45 am] BILLING CODE 3410-02-P
    DEPARTMENT OF AGRICULTURE Agricultural Marketing Service [Doc. No. AMS-SC-15-0080; SC16-996-2] Peanut Standards Board AGENCY:

    Agricultural Marketing Service, USDA.

    ACTION:

    Notice; request for nominations.

    SUMMARY:

    The Farm Security and Rural Investment Act of 2002 (2002 Farm Bill) requires the Secretary of Agriculture to establish a Peanut Standards Board (Board) for the purpose of advising the Secretary on quality and handling standards for domestically produced and imported peanuts. The initial Board was appointed by the Secretary and announced on December 5, 2002. USDA seeks nominations for individuals to be considered for selection as Board members for a term of office ending June 30, 2019. Selected nominees would replace three producer and three industry representatives who currently serve on the Board and have terms of office that end on June 30, 2016. The Board consists of 18 members representing producers and the industry. In an effort to obtain diversity among candidates, USDA encourages the nomination of men and women of all racial and ethnic groups and persons with a disability.

    DATES:

    Written nominations must be received on or before May 2, 2016.

    ADDRESSES:

    Nominations should be sent to Steven W. Kauffman of the Southeast Marketing Field Office, Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA, 1124 1st Street South, Winter Haven, FL 33880; Telephone: (863) 837-3375; Fax: (863) 291-8614; Email: [email protected]

    SUPPLEMENTARY INFORMATION:

    Section 1308 of the 2002 Farm Bill requires the Secretary of Agriculture to establish and consult with the Board for the purpose of advising the Secretary regarding the establishment of quality and handling standards for all domestic and imported peanuts marketed in the United States.

    The 2002 Farm Bill provides that the Board's makeup will include three producers and three peanut industry representatives from States specified in each of the following producing regions: Southeast (Alabama, Georgia, and Florida); Southwest (Texas, Oklahoma, and New Mexico); and Virginia/Carolina (Virginia and North Carolina).

    The term “peanut industry representatives” includes, but is not limited to, representatives of shellers, manufacturers, buying points, marketing associations and marketing cooperatives. The 2002 Farm Bill exempted the appointment of the Board from the requirements of the Federal Advisory Committee Act.

    USDA invites individuals, organizations, and groups affiliated with the categories listed above to nominate individuals for membership on the Board. Nominees sought by this action would fill two positions in the Southeast region, two positions in the Southwest region, and two positions in the Virginia/Carolina region.

    Nominees should complete a Peanut Standards Board Background Information form and submit it to Steven Kauffman at the address provided in the ADDRESSES section above. Copies of this form may be obtained at the Internet site http://www.ams.usda.gov/about-ams/facas-advisory-councils/peanut-board, or from the Southeast Marketing Field Office. USDA seeks a diverse group of members representing the peanut industry.

    Equal opportunity practices will be followed in all appointments to the Board in accordance with USDA policies. To ensure that the recommendations of the Board have taken into account the needs of the diverse groups within the peanut industry, membership shall include, to the extent practicable, individuals with demonstrated abilities to represent minorities, women, persons with disabilities, and limited resource agriculture producers.

    Authority:

    7 U.S.C. 7958.

    Dated: March 10, 2016. Elanor Starmer, Acting Administrator, Agricultural Marketing Service.
    [FR Doc. 2016-05867 Filed 3-15-16; 8:45 am] BILLING CODE 3410-02-P
    DEPARTMENT OF AGRICULTURE Food and Nutrition Service Agency Information Collection Activities: Proposed Collection; Comment Request—Application of Schools Applying for Recognition Through HealthierUS School Challenge: Smarter Lunchrooms AGENCY:

    Food and Nutrition Service (FNS), USDA.

    ACTION:

    Notice.

    SUMMARY:

    In accordance with the Paperwork Reduction Act of 1995, this notice invites the general public and other public agencies to comment on this proposed information collection. This collection is a new collection for reviewing and evaluating the practices of schools participating in both the National School Lunch and School Breakfast Programs as a part of their application for recognition through HealthierUS School Challenge: Smarter Lunchrooms. The goal is to highlight and recognize those schools that are achieving success above and beyond Federal meal pattern requirements in the areas of actively implementing smarter lunchroom techniques, Smart Snacks, nutrition education, physical education, local school wellness policies, and other criteria for excellence.

    DATES:

    Written comments must be received on or before May 16, 2016.

    ADDRESSES:

    Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions that were used; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on those who are to respond, including use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.

    Comments may be sent to: Ebony James, Food and Nutrition Service, U.S. Department of Agriculture, 3101 Park Center Drive, Room 630, Alexandria, VA 22302. Comments may also be submitted via fax to the attention of Ebony James at 703-305-2549 or via email to [email protected] Comments will also be accepted through the Federal eRulemaking Portal. Go to http://www.regulations.gov, and follow the online instructions for submitting comments electronically.

    All written comments will be open for public inspection at the office of the Food and Nutrition Service during regular business hours (8:30 a.m. to 5 p.m. Monday through Friday) at 3101 Park Center Drive, Room 630, Alexandria, Virginia 22302.

    All responses to this notice will be summarized and included in the request for Office of Management and Budget approval. All comments will be a matter of public record.

    FOR FURTHER INFORMATION CONTACT:

    Requests for additional information or copies of this information collection should be directed to Ebony James at 703-305-2827.

    SUPPLEMENTARY INFORMATION:

    Title: HealthierUS School Challenge: Smarter Lunchrooms Application.

    Form Number: FNS-779.

    OMB Number: Not Yet Assigned.

    Expiration Date: Not Yet Determined.

    Type of Request: New collection.

    Abstract: The HealthierUS School Challenge (HUSSC), begun in 2004, serves as a way to motivate and facilitate improvements in nutrition and physical activity in schools by collecting and sharing best practices. It also allows the Food and Nutrition Service (FNS) to showcase schools that have made positive steps in advancing implementation of wellness policies and the latest Dietary Guidelines for Americans and food guidance system. Research supports the use of both incentives and the recognition of good work to promote positive behavior and performance. Therefore, the foundation of the HealthierUS School Challenge: Smarter Lunchrooms (HUSSC: SL) initiative is based on four levels of excellence in nutrition and physical activity. Team Nutrition schools that voluntarily submit applications for one of HUSSC: SL's four levels of excellence, and meet the HUSSC: SL criteria, receive an award plaque, banner, monetary incentive, and national and community recognition of their accomplishments.

    This information collection will inform how the Food and Nutrition Service develops policy and technical assistance regarding the school nutrition environment. Collective feedback from the schools submitting application forms will inform FNS on what is actually being implemented at the local level. An assessment of the information obtained from schools will help FNS to better target efforts to design science-based nutrient standards for school meals, develop training and nutrition education materials in support of Federal child nutrition programs, plan for program enhancements, and share descriptive information about best practices with other schools across the country; and will assist those schools in planning and implementing their own feasible, results-oriented practices. Ultimately, the information on the application forms will help FNS better meet the needs of its customers, strengthen the development of policy directed toward the administration's interest in eliminating childhood obesity and food insecurity, and enhance the health and nutritional status of the US population.

    This application is currently approved under OMB Control No. 0584-0524 Generic Clearance to Conduct Formative Research (which expires June 30, 2016). FNS is now seeking approval for this application in its own information collection.

    Affected Public: State, Local, and Tribal Government. Respondent groups identified include school and school district representatives.

    Estimated Number of Respondents: FNS anticipates that 1,000 school or school district representatives will voluntarily submit HealthierUS School Challenge: Smarter Lunchrooms applications over a one year period (see chart).

    Estimated Number of Responses per Respondent: The school or district representative will be asked to participate in completing one application form.

    Estimated Total Annual Responses: 1,000.

    Estimated Time per Response: 2 hours.

    Estimated Total Annual Burden on Respondents: 2,000 hours.

    See the table below for estimated total annual burden for the respondents.

    Respondent Estimated number of
  • respondents
  • Responses annually per respondent Total annual responses
  • (Col. bxc)
  • Estimated
  • average
  • number
  • of hours per
  • response
  • Estimated total hours
  • (Col. dxe)
  • Reporting Burden School or School District Representative 1,000 1 1,000 2 2,000 Total Reporting Burden 1,000 1,000 2,000
    Dated: March 8, 2016. Audrey Rowe, Administrator, Food and Nutrition Service.
    [FR Doc. 2016-05893 Filed 3-15-16; 8:45 am] BILLING CODE 3410-30-P
    DEPARTMENT OF AGRICULTURE Food and Nutrition Service Agency Information Collection Activities: Proposed Collection; Comment Request—Successful Approaches To Reduce Sodium in School Meals AGENCY:

    Food and Nutrition Service, United States Department of Agriculture (USDA).

    ACTION:

    Notice and request for comments.

    SUMMARY:

    In accordance with the Paperwork Reduction Act of 1995, this notice invites the general public and other public agencies to comment on this proposed information collection. This collection is a new collection to study Successful Approaches to Reduce Sodium in School Meals.

    DATES:

    Written comments must be received on or before May 16, 2016.

    ADDRESSES:

    Comments are invited on the following topics: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions that were used; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on those who are to respond, including use of appropriate automated, electronic, mechanical, or other technological collection techniques, and/or other forms of information technology.

    Comments may be sent to Alice Ann Gola, Social Science Research Analyst, Special Nutrition Evaluation Branch, Office of Policy Support, USDA Food and Nutrition Service, 3101 Park Center Drive, Room 1014, Alexandria, VA 22302. Comments may also be submitted via email to [email protected] Comments will also be accepted through the Federal eRulemaking Portal. Go to http://www.regulations.gov and follow the online instructions for submitting comments electronically.

    All responses to this notice will be summarized and included in the request for Office of Management and Budget approval. All comments will be a matter of public record.

    FOR FURTHER INFORMATION CONTACT:

    Requests for additional information or copies of this information collection should be directed to Alice Ann Gola at [email protected]

    SUPPLEMENTARY INFORMATION:

    Title: Successful Approaches to Reduce Sodium in School Meals.

    Form Number: N/A.

    OMB Number: Not yet assigned.

    Expiration Date: Not yet determined.

    Type of Request: New collection.

    Abstract: The National School Lunch Program (NSLP) and the School Breakfast Program (SBP) are federally assisted meal programs operating in almost 100,000 public schools, non-profit private schools, and residential child-care institutions. Any child enrolled in a participating school may purchase a meal through the SBP and NSLP. Children from families with incomes at or below 130 percent of the poverty level are eligible for free meals. Children from families with incomes between 130 percent and 185 percent of poverty are eligible for reduced-price meals. School districts that participate in NSLP receive cash subsidies and commodities (USDA foods) from the USDA for each meal they serve. In return, they must serve meals that meet Federal requirements.

    Federal regulations (7 CFR part 210.10) set nutritional and other meal requirements for school lunches, including targets for sodium levels. The purpose of this study is to identify, among schools that are successfully meeting the sodium targets, “best practices” that could be used to provide technical assistance to School Food Authorities (SFAs) for developing lower sodium menus. This study relies on qualitative data from four sources: SFA directors, school administrators, community-based stakeholders, and local food suppliers to SFAs. The study activities subject to this notice include online prescreening surveys, brief telephone interviews, in-depth telephone interviews, and in-depth on-site interviews. The online prescreening survey will verify which SFAs are currently meeting sodium targets. The brief site visit selection telephone interview will provide additional information used to determine which of the eligible sites will experience in-depth interviews, either on-site or by telephone.

    Affected Public: This study includes four respondent groups: (1) State, Local, and Tribal Government (SFA directors and school administrators), (2) Business or Other For-Profit (local food suppliers), (3) Individuals or Households (community-based stakeholders), and (4) Not-For-Profit Institutions (community-based stakeholders).

    Estimated Number of Respondents: The total estimated number of respondents is 753. This figure includes 608 respondents and 145 non-respondents. The initial sample will consist of 625 SFA directors. Assuming that 80 percent respond to the pre-screening survey, the resulting respondent sample will include approximately 500 SFA directors. Of the SFA directors identified as eligible from the pre-screening survey results, 45 will be contacted with an expected response rate of 80 percent (36 SFA director respondents and 9 non-respondents). In-depth interviews will be conducted with the 36 SFA directors (with an expected 100 percent response rate). The following respondent types will be recruited within each of the SFAs, resulting in 36 responses per respondent type: 40 school administrators (with an expected response rate of 90 percent); 46 local food suppliers (with an expected response rate of 78 percent); and 42 community-based stakeholders (32 individuals with an expected response rate of 87.5 percent and 10 not-for-profit institutions with an expected response rate of 80 percent). The 145 non-respondents include 125 SFA directors, 4 school administrators, 10 local food suppliers, 4 individual community-based stakeholders, and 2 not-for-profit community-based stakeholders.

    Estimated Frequency of Responses per Respondent: FNS estimates that the frequency of responses per respondent will average 1.11 responses per respondent across the entire collection. SFA directors may provide responses on three occasions (prescreening survey, brief site visit selection telephone interview, and in-depth interview), although most will provide responses on the prescreening survey only. School administrators, community-based stakeholders, and local food suppliers to SFAs will be expected to provide a one-time response during the in-depth interview.

    Estimated Total Annual Responses: The total number of responses expected across all respondent categories is 834.

    Estimated Time per Response: The estimated time will vary depending on the respondent category and will range from three minutes (0.05 hours) to one hour. The table that follows outlines the estimated total annual burden for each type of respondent. Across all study respondents and non-respondents, the average estimated time per response is 0.47 hours.

    Estimated Total Annual Burden Hours on Respondents: 391.22 hours (see table below for estimated total annual burden hours by type of respondent).

    EN16MR16.012 Dated: March 7, 2016. Audrey Rowe, Administrator, Food and Nutrition Service.
    [FR Doc. 2016-05895 Filed 3-15-16; 8:45 am] BILLING CODE 3410-30-C
    DEPARTMENT OF AGRICULTURE Rural Utilities Service Information Collection Activity; Comment Request AGENCY:

    Rural Utilities Service, USDA.

    ACTION:

    Notice and request for comments.

    SUMMARY:

    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35, as amended), the Rural Utilities Service (RUS) invites comments on this information collection for which RUS intends to request approval from the Office of Management and Budget (OMB).

    DATES:

    Comments on this notice must be received by May 16, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Thomas P. Dickson, Acting Director, Program Development & Regulatory Analysis, Rural Utilities Service, USDA, 1400 Independence Ave. SW., STOP 1522, Room 5164 South Building, Washington, DC 20250-1522. Telephone: (202) 690-4492. FAX: (202) 720-4120.

    SUPPLEMENTARY INFORMATION:

    Title: Seismic Safety of New Building Construction.

    OMB Control Number: 0572-0099.

    Type of Request: Extension of a currently approved information collection.

    Abstract: The Earthquake Hazards Reduction Act of 1977 (42 U.S.C. 7701 et seq.) was enacted to reduce risks to life and property through the National Earthquake Hazards Reduction Program (NEHRP). The Federal Emergency Management Agency (FEMA) is designated as the agency with the primary responsibility to plan and coordinate the NEHRP. This program includes the development and implementation of feasible design and construction methods to make structures earthquake resistant. Executive Order 12699 of January 5, 1990, Seismic Safety of Federal and Federally Assisted or Regulated New Building Construction, requires that measures to assure seismic safety be imposed on federally assisted new building construction.

    Title 7 Part 1792, Subpart C, Seismic Safety of Federally assisted New Building Construction, identifies acceptable seismic standards which must be employed in new building construction funded by loans, grants, or guarantees made by RUS or the Rural Telephone Bank (RTB) or through lien accommodations or subordinations approved by RUS or RTB. This subpart implements and explains the provisions of the loan contract utilized by the RUS for both electric and telecommunications borrowers and by the RTB for its telecommunications borrowers requiring construction certifications affirming compliance with the standards.

    Estimate of Burden: Public reporting burden for this collection of information is estimated to average .75 hours per response.

    Respondents: Small business or organizations.

    Estimated Number of Respondents: 192.

    Estimated Number of Responses per Respondent: 1.

    Estimated Total Annual Burden on Respondents: 144.

    Comments are invited on (a) whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of burden including the validity of the methodology and assumption used; (c) ways to enhance the quality, utility and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques on other forms of information technology. Comments may be sent to: Thomas P. Dickson, Acting Director, Program Development and Regulatory Analysis, USDA Rural Utilities Service, STOP 1522, 1400 Independence Ave. SW., Washington, DC 20250-1522. FAX: (202) 720-8435. Email: [email protected]

    Copies of this information collection can be obtained from MaryPat Daskal, Program Development and Regulatory Analysis, at (202) 720-7853. FAX: (202) 720-8435. Email: [email protected] All responses to this notice will be summarized and included in the request for OMB approval. All comments will also become a matter of public record.

    Dated: March 9, 2016. Brandon McBride, Administrator, Rural Utilities Service.
    [FR Doc. 2016-05925 Filed 3-15-16; 8:45 am] BILLING CODE P
    DEPARTMENT OF AGRICULTURE Rural Utilities Service Notice of Solicitation of Applications (NOSA); Correction AGENCY:

    Rural Utilities Service, USDA.

    ACTION:

    Notice; correction.

    SUMMARY:

    The Rural Utilities Service (RUS) published in the Federal Register, on March 9, 2016 a Notice of Solicitation of Applications (NOSA), announcing the Household Water Well System Grant Program application window for fiscal year (FY) 2016. Inadvertently, an incorrect web link was included in the NOSA that did not permit access to the intended Web site. This document removes the incorrect web reference and replaces it with the correct version.

    DATES:

    Effective on March 16, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Derek Jones, Community Programs Specialist, Water and Environmental Programs, Rural Utilities Service, Rural Development, U.S. Department of Agriculture, STOP 1570, Room 2234-S, 1400 Independence Avenue SW., Washington, DC 20250-1570, Telephone: (202) 720-9640, fax: (202) 690-0649, email: [email protected]

    SUPPLEMENTARY INFORMATION:

    The Rural Utilities Service (RUS) published in the Federal Register on March 9, 2016, at 81 FR 12451, a Notice of Solicitation of Applications (NOSA), for its Household Water Well System Grant Program application window for fiscal year (FY) 2016. Inadvertently, an incorrect web link was included in the NOSA that did not permit access to the intended Web site. This document removes all references to the incorrect web link published on March 9, 2016 and replaces it with the correct web reference.

    In the Notice of Solicitation of Applications (NOSA) FR Doc. 2016-05170 published on March 9, 2016, at 81 FR 12451, make the following correction. Remove “rurdev.usda.gov/UWP-individualwellsystems” and add in its place “http://www.rd.usda.gov/programs-services/household-water-well-system-grants” on the following pages:

    Page 12451, second column, ADDRESSES: 1. Electronic copies: Page 12453, second column, IV. Application and Submission Information, A. Where To Get Application Information, 1. Internet for electronic copies; Page 12454, column one, (14) Assurances and certifications of compliance with other Federal Statutes; and, Page 12457, column 2, VII Agency Contacts, A. Web site.

    Dated: March 10, 2016. Brandon McBride, Administrator, Rural Utilities Service.
    [FR Doc. 2016-05926 Filed 3-15-16; 8:45 am] BILLING CODE P
    COMMISSION ON CIVIL RIGHTS Notice of Public Meeting of the Michigan Advisory Committee to Discuss Preparations for a Public Hearing Regarding the Civil Rights Impact of Civil Forfeiture Practices in the State AGENCY:

    U.S. Commission on Civil Rights.

    ACTION:

    Announcement of meeting.

    SUMMARY:

    Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission) and the Federal Advisory Committee Act that the Michigan Advisory Committee (Committee) will hold a meeting on Tuesday, March 29, 2016, at 10:00 a.m. EDT for the purpose of discussing preparations for a public hearing regarding the civil rights impact of civil asset forfeiture in the State.

    This meeting is available to the public through the following toll-free call-in number: 888-556-4997, conference ID: 2174573. Any interested member of the public may call this number and listen to the meeting. An open comment period will be provided to allow members of the public to make a statement at the end of the meeting. The conference call operator will ask callers to identify themselves, the organization they are affiliated with (if any), and an email address prior to placing callers into the conference room. Callers can expect to incur regular charges for calls they initiate over wireless lines according to their wireless plan, and the Commission will not refund any incurred charges. Callers will incur no charge for calls they initiate over land-line connections to the toll-free telephone number. Persons with hearing impairments may also follow the proceedings by first calling the Federal Relay Service at 1-800-977-8339 and providing the Service with the conference call number and conference ID number.

    Members of the public are also entitled to submit written comments; the comments must be received in the regional office within 30 days following the meeting. Written comments may be mailed to the Regional Programs Unit, U.S. Commission on Civil Rights, 55 W. Monroe St., Suite 410, Chicago, IL 60615. They may also be faxed to the Commission at (312) 353-8324, or emailed to Carolyn Allen at [email protected] Persons who desire additional information may contact the Regional Programs Unit at (312) 353-8311.

    Records and documents discussed during the meeting will be available for public viewing prior to and after the meeting at http://facadatabase.gov/committee/meetings.aspx?cid=255. Click on the “Meeting Details” and “Documents” links to download. Records generated from this meeting may also be inspected and reproduced at the Regional Programs Unit, as they become available, both before and after the meeting. Persons interested in the work of this Committee are directed to the Commission's Web site, http://www.usccr.gov, or may contact the Regional Programs Unit at the above email or street address.

    Agenda
    Welcome and Introductions Donna Budnick, Chair Preparatory Discussion for Public Hearing: Civil Rights Impact of Civil Forfeiture Practices in Michigan Future plans and actions Open Comment Adjournment DATES:

    The meeting will be held on Tuesday, March 29, 2016, at 10:00 a.m. EDT, Public Call Information: Dial: 888-556-4997, Conference ID: 2174573.

    FOR FURTHER INFORMATION CONTACT:

    Melissa Wojnaroski at [email protected] or 312-353-8311.

    Dated March 10, 2016. David Mussatt, Chief, Regional Programs Unit.
    [FR Doc. 2016-05845 Filed 3-15-16; 8:45 am] BILLING CODE 6335-01-P
    COMMISSION ON CIVIL RIGHTS Notice of Public Meeting of the Missouri Advisory Committee To Discuss Draft Report Resulting From Testimony Received Regarding Civil Rights and Police/Community Interactions in the State AGENCY:

    U.S. Commission on Civil Rights.

    ACTION:

    Notice of meeting.

    SUMMARY:

    Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission) and the Federal Advisory Committee Act that the Missouri Advisory Committee (Committee) will hold a meeting on Thursday April 21, 2016, for the purpose of discussing oral and written testimony received during two public meetings focused on civil rights and police and community interactions in Missouri. Themes and findings discussed during this meeting will form the basis of a report to be issued to the Commission on this topic.

    Members of the public can listen to the discussion. This meeting is available to the public through the following toll-free call-in number: 888-587-0615, conference ID: 4444578. Any interested member of the public may call this number and listen to the meeting. Callers can expect to incur regular charges for calls they initiate over wireless lines according to their wireless plan, and the Commission will not refund any incurred charges. Callers will incur no charge for calls they initiate over land-line connections to the toll-free telephone number. Persons with hearing impairments may also follow the proceedings by first calling the Federal Relay Service at 1-800-977-8339 and providing the Service with the conference call number and conference ID number.

    Members of the public are also entitled to submit written comments; the comments must be received in the regional office within thirty days following the meeting. Written comments may be mailed to the Midwestern Regional Office, U.S. Commission on Civil Rights, 55 W. Monroe St., Suite 410, Chicago, IL 60615. They may also be faxed to the Commission at (312) 353-8324, or emailed to Corrine Sanders at [email protected]. Persons who desire additional information may contact the Midwestern Regional Office at (312) 353-8311.

    Records generated from this meeting may be inspected and reproduced at the Midwestern Regional Office, as they become available, both before and after the meeting. Records of the meeting will be available at https://database.faca.gov/committee/meetings.aspx?cid=258. Click on “meeting details” and “documents” to download. Persons interested in the work of this Committee are directed to the Commission's Web site, http://www.usccr.gov, or may contact the Midwestern Regional Office at the above email or street address.

    Agenda
    Welcome and Introductions Committee Discussion: Draft report resulting from Committee hearings on Civil Rights and Police/Community Relations in Missouri. (February 23, 2015 St. Louis; August 20, 2015 Kansas City) Open Comment Recommendations and Next Steps DATES:

    The meeting will be held on Thursday, April 21, 2016, at 11:30 a.m. CDT

    Public Call Information:

    Dial: 888-587-0615

    Conference ID: 4444578

    FOR FURTHER INFORMATION CONTACT:

    Melissa Wojnaroski, DFO, at 312-353-8311 or [email protected].

    Dated: March 10, 2016. David Mussatt, Chief, Regional Programs Unit.
    [FR Doc. 2016-05844 Filed 3-15-16; 8:45 am] BILLING CODE 6335-01-P
    DEPARTMENT OF COMMERCE International Trade Administration [A-570-890] Wooden Bedroom Furniture From the People's Republic of China: Notice of Court Decision Not in Harmony With Final Scope Ruling and Notice of Amended Final Scope Ruling Pursuant to Court Decision AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    SUMMARY:

    On February 29, 2016, the United States Court of International Trade (“CIT” or “Court”) sustained the Department of Commerce's (“Department”) final results of redetermination 1 in which the Department determined, under protest, that four chests of Ethan Allen Operations, Inc. (“Ethan Allen”) are not subject to the scope of the WBF Order, 2 pursuant to the CIT's remand order in Ethan Allen Operations, Inc. v. United States, Consol. Court No. 14-00147 (December 1, 2015) (“Ethan Allen”).

    1Ethan Allen Operations, Inc. v. United States, Court No. 14-000147, Slip Op. 16-19 (CIT February 29, 2016) (“Ethan Allen II”), which sustained the Final Results of Redetermination Pursuant to Court Order, Ethan Allen Operations, Inc. v. United States, dated February 11, 2016 (“Final Remand Results”).

    2See Notice of Amended Final Determination of Sales at Less Than Fair Value and Antidumping Duty Order: Wooden Bedroom Furniture from the People's Republic of China, 70 FR 329 (January 4, 2005) (“WBF Order”).

    Consistent with the decision of the United States Court of Appeals for the Federal Circuit (“CAFC”) in Timken, 3 as clarified by Diamond Sawblades, 4 the Department is notifying the public that the Court's final judgment in this case is not in harmony with the Department's Ethan Allen Scope Ruling and is therefore amending its final scope ruling.5

    3See Timken Co. v. United States, 893 F.2d 337 (Fed. Cir. 1990) (“Timken”).

    4See Diamond Sawblades Mfrs. Coalition v. United States, 626 F.3d 1374 (Fed. Cir. 2010) (“Diamond Sawblades”).

    5See Memorandum to Christian Marsh, Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations, “Wooden Bedroom Furniture from the People's Republic of China: Scope Ruling on Ethan Allen Operations Inc.'s Chests” (May 27, 2014) (“Ethan Allen Scope Ruling”).

    DATES:

    Effective Date: March 10, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Cara Lofaro, Office IV, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC, 20230; telephone: (202) 482-5720.

    SUPPLEMENTARY INFORMATION: Background

    On May 27, 2014 the Department issued the Ethan Allen Scope Ruling, in which it determined that Ethan Allen's Marlene, Nadine, and Serpentine chests were subject to the WBF Order based on an analysis under 19 CFR 351.225(k)(1), and that the Vivica chest was also subject merchandise based on an analysis of the factors under both 19 CFR 351.225(k)(1) and (k)(2) (the “(k)(2) analysis”). The Department then requested a voluntary remand to allow further notice to, and comment from, parties on its (k)(2) analysis of the Vivica chest, which the Court granted. In the Voluntary Remand Results, the Department responded to the arguments of the parties to the dispute and determined, again, based on a (k)(2) analysis, that Ethan Allen's Vivica chest is subject to the scope of the WBF Order. 6

    6See Final Results of Voluntary Redetermination Pursuant To Court Order, dated November 26, 2014. (“Voluntary Remand Results”).

    On December 1, 2015, the Court issued its opinion on the Ethan Allen Scope Ruling, remanding each of the Department's determinations back to the agency for further analysis,7 as discussed in further detail in the Final Remand Results. 8 Specifically, the Court held that with respect to the Vivica chest, “because the (k)(1) factors are dispositive as to the Vivica chest and demonstrate that the Vivica chest is not within the scope of the WBF Order, the court does not proceed to an analysis of the (k)(2) factors and remands to Commerce to issue a ruling consistent with this opinion.” 9 The Court further held that with respect to the Marlene, Nadine, and Serpentine chests “because the (k)(1) factors are non-dispositive {in the Ethan Allen Scope Ruling the Department determined that the Marlene, Nadine, and Serpentine chests were covered by the WBF Order after analyzing the criteria listed in 19 CFR 351.225(k)(1)}, Commerce should evaluate the (k)(2) factors consistent with this decision,” in which the Court noted, in part, that “the proper inquiry should focus on the intended function of the product, i.e., whether it was intended and designed for use in the bedroom.” 10

    7See Ethan Allen.

    8See Final Remand Results at 1-2.

    9See Ethan Allen at 16.

    10Id. at 13.

    Accordingly, the Department issued the Final Remand Results and, consistent with the Court's analysis, determined that the Vivica chest is not subject to the WBF Order. Furthermore, in accordance with the Court's holding that the Marlene, Nadine, and Serpentine chests should be evaluated using a (k)(2) analysis, Commerce conducted such an analysis and determined that “the weight of the record evidence supports a determination that the Nadine, Marlene, and Serpentine chests are not covered by the scope of the WBF Order.” 11

    11See Final Remand Results at 14.

    In Ethan Allen II, the Court sustained the Department's Final Remand Results in its entirety.12

    12See Ethan Allen II.

    Timken Notice

    In its decision in Timken13 as clarified by Diamond Sawblades, the CAFC held that, pursuant to sections 516A(c) and (e) of the Tariff Act of 1930, as amended (the “Act”), the Department must publish a notice of a court decision that is not “in harmony” with a Department determination and must suspend liquidation of entries pending a “conclusive” court decision. The CIT's February 29, 2016, judgment in Ethan Allen II, sustaining the Department's decision in the Final Remand Results that the four chests at issue are not covered by the scope of the WBF Order, constitutes a final decision of that court that is not in harmony with the Ethan Allen Scope Ruling. This notice is published in fulfillment of the publication requirements of Timken. Accordingly, the Department will continue the suspension of liquidation of the chests at issue pending expiration of the period to appeal or, if appealed, pending a final and conclusive court decision.

    13See Timken, 893 F.2d at 341.

    Amended Final Determination

    Because there is now a final court decision with respect to the Ethan Allen Scope Ruling, the Department is amending its final scope ruling. The Department finds that the scope of the WBF Order does not cover the products addressed in the Ethan Allen Scope Ruling. The Department will instruct U.S. Customs and Border Protection (“CBP”) that the cash deposit rate will be zero percent for the four chests imported by Ethan Allen. In the event that the CIT's ruling is not appealed, or if appealed, upheld by the CAFC, the Department will instruct CBP to liquidate entries of Ethan Allen's four chests at issue without regard to antidumping and/or countervailing duties, and to lift suspension of liquidation of such entries.

    This notice is issued and published in accordance with section 516A(c)(1) of the Act.

    Dated: March 9, 2016. Paul Piquado, Assistant Secretary for Enforcement and Compliance.
    [FR Doc. 2016-05942 Filed 3-15-16; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration [A-580-867] Large Power Transformers From the Republic of Korea: Final Results of Antidumping Duty Administrative Review; 2013-2014 AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    SUMMARY:

    On September 4, 2015, the Department of Commerce (the Department) published the preliminary results of the administrative review of the antidumping duty order on large power transformers from the Republic of Korea.1 The review covers five producers/exporters of the subject merchandise, Hyosung Corporation (Hyosung), Hyundai Heavy Industries Co., Ltd. (Hyundai), ILJIN, ILJIN Electric Co., Ltd. (ILJIN Electric), and LSIS Co., Ltd. (LSIS). ILJIN, ILJIN Electric, and LSIS, were not selected for individual examination. The period of review (POR) is August 1, 2013, through July 31, 2014. As a result of our analysis of the comments and information received, these final results differ from the Preliminary Results. For the final weighted-average dumping margins, see the “Final Results of Review” section below.

    1See Large Power Transformers From the Republic of Korea: Preliminary Results of Antidumping Duty Administrative Review; 2013-2014, 80 FR 53496 (September 4, 2015) (Preliminary Results).

    DATES:

    Effective Date: March 16, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Brian Davis (Hyosung) or Edythe Artman (Hyundai), AD/CVD Operations, Office VI, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-7924 or (202) 482-3931, respectively.

    SUPPLEMENTARY INFORMATION: Background

    On September 4, 2015, the Department published the Preliminary Results. In accordance with 19 CFR 351.309(c)(1)(ii), we invited parties to comment on our Preliminary Results. 2 On October 16, 2015, Hyundai timely submitted a case brief and on October 19, 2015, Hyosung and ABB Inc. (Petitioner) timely submitted case briefs.3 Rebuttal briefs were also timely filed by Hyosung, Hyundai, and Petitioner, on October 27, 2015.4 On December 22, 2015, the Department issued a memorandum extending the time period for issuing the final results of this administrative review from January 4, 2016 to February 24, 2016.5 On February 29, 2016, the Department further extended the final results to March 8, 2015.6

    2 The Department issued the briefing schedule in a Memorandum to the File, dated September 9, 2015. This briefing schedule was later extended at the request of interested parties to October 16, 2015 for briefs and October 26, 2015 for rebuttal briefs.

    3See Case Brief from Petitioner regarding Hyundai, (Petitioner Brief Hyundai), Brief from Petitioner regarding Hyosung (Petitioner Brief Hyosung), and Hyosung Brief, all dated October 19, 2015, and Hyundai Brief, dated October 16, 2015.

    4See Hyosung Rebuttal Brief, Hyundai Rebuttal Brief and Petitioner Rebuttal Brief: All dated October 26, 2015. Petitioner requested an extension for the briefing schedule to 30 days after Hyundai's submission of a post-verification supplemental questionnaire and an extension for filing rebuttal briefs, which the Department partially granted for all parties in a letter dated September 29, 2015 and extended in a letter dated October 13, 2015. See Letter to Petitioner dated September 29, 2015 and Letter to Petitioner dated October 13, 2015.

    5See Memorandum to Christian Marsh, Deputy Assistant Secretary for AD/CVD Operations, “Large Power Transformers from the Republic of Korea: Extension of Deadline for Final Results of Antidumping Duty Administrative Review; 2013-2014” (December 22, 2015).

    6See Memorandum to Christian Marsh, Deputy Assistant Secretary for AD/CVD Operations, “Large Power Transformers from the Republic of Korea: Extension of Deadline for Final Results of Antidumping Duty Administrative Review; 2013-2014” (February 29, 2016); see also Memorandum to the Record from Ron Lorentzen, Acting Assistant Secretary for Enforcement & Compliance, regarding “Tolling of Administrative Deadlines As a Result of the Government Closure During Snowstorm Jonas,” dated January 27, 2016. As explained in this memorandum, the Department has exercised its discretion to toll all administrative deadlines due to the recent closure of the Federal Government. All deadlines in this segment of the proceeding have been extended by four business days. The revised deadline for the final determination is now March 8, 2016.

    Scope of the Order

    The scope of this order covers large liquid dielectric power transformers (LPTs) having a top power handling capacity greater than or equal to 60,000 kilovolt amperes (60 megavolt amperes), whether assembled or unassembled, complete or incomplete. The merchandise subject to the order is currently classified in the Harmonized Tariff Schedule of the United States at subheadings 8504.23.0040, 8504.23.0080 and 8504.90.9540.7

    7 For a full description of the scope of the order, see the Memorandum from Christian Marsh, Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations, to Paul Piquado, Assistant Secretary for Enforcement and Compliance, titled “Issues and Decision Memorandum for the Final Results of the Administrative Review of the Antidumping Duty Order on Large Power Transformers from the Republic of Korea; 2013-2014” (Issues and Decision Memorandum), which is issued concurrently with, and hereby adopted by, this notice.

    Analysis of Comments Received

    All issues raised in the case and rebuttal briefs by parties to this administrative review are addressed in the Issues and Decision Memorandum.8 A list of the issues that parties raised and to which we responded is attached to this notice as an Appendix. The Issues and Decision Memorandum is a public document and is on-file electronically via ACCESS. ACCESS is available to registered users at http://access.trade.gov and in the Central Records Unit, Room B8024 of the main Department of Commerce building. In addition, a complete version of the Issues and Decision Memorandum can be accessed directly on the Internet at http://enforcement.ita.doc.gov/frn/index.html. The signed Issues and Decision Memorandum and the electronic version of the Issues and Decision Memorandum are identical in content.

    8Id.

    Changes Since the Preliminary Results

    Based on a review of the record and comments received from interested parties regarding our Preliminary Results, we recalculated Hyosung's and Hyundai's weighted-average dumping margins for these final results.

    For Hyosung, we revised our margin program by adjusting our treatment of Hyosung's installation revenue, indirect selling expense ratio, U.S. commission expenses, and U.S. warranty expenses.9 For Hyundai, we revised the margin program with respect to our treatment of bank charges and packing expenses incurred in the home market, installation and supervision expenses incurred in both markets, domestic inventory carrying costs and U.S. credit expenses, and U.S. commission expenses.10

    9See Memorandum from Brian Davis to the File, regarding “Analysis of Data Submitted by Hyosung Corporation in the Final Results of the Administrative Review of the Antidumping Duty Order on Large Power Transformers from the Republic of Korea; 2013-2014” (Hyosung Final Analysis Memorandum), dated March 23, 2014, at section “Changes from the Preliminary Results,” for further information.

    10See Memorandum from Edythe Artman to the File, regarding “Analysis of Data Submitted by Hyundai Heavy Industries Co., Ltd. in the Final Results of the Administrative Review of the Antidumping Duty Order on Large Power Transformers from the Republic of Korea; 2013-2014” (Hyundai Final Analysis Memorandum), dated March 23, 2014, at section “Changes from the Preliminary Results,” for further information.

    As a result of the aforementioned recalculations of Hyosung's and Hyundai's weighted-average dumping margins, the weighted-average dumping margin for the three non-selected companies also changed.

    Final Results of the Review

    As a result of this review, the Department determines the following weighted-average dumping margins 11 for the period August 1, 2013, through July 31, 2014, are as follows:

    11 As we did not have publicly-ranged U.S. sales volumes for Hyosung for the period August 1, 2013, through July 31, 2014, to calculate a weighted-average percentage margin for the non-selected companies (i.e., ILJIN, ILJIN Electric, and LSIS) in this review, the rate applied to the non-selected companies is a simple-average percentage margin calculated based on the margins calculated for Hyosung and Hyundai.

    Manufacturer/exporter Weighted-
  • average
  • margin
  • (percent)
  • Hyosung Corporation 9.40 Hyundai Heavy Industries Co., Ltd 4.07 ILJIN Electric Co., Ltd 6.74 ILJIN 6.74 LSIS Co., Ltd 6.74
    Duty Assessment

    The Department shall determine and U.S. Customs and Border Protection (CBP) shall assess antidumping duties on all appropriate entries.12 For any individually examined respondents whose weighted-average dumping margin is above de minimis, we calculated importer-specific ad valorem duty assessment rates based on the ratio of the total amount of dumping calculated for the importer's examined sales to the total entered value of those same sales in accordance with 19 CFR 351.212(b)(1). Upon issuance of the final results of this administrative review, if any importer-specific assessment rates calculated in the final results are above de minimis (i.e., at or above 0.5 percent), the Department will issue instructions directly to CBP to assess antidumping duties on appropriate entries.

    12 In these final results, the Department applied the assessment rate calculation method adopted in Antidumping Proceedings: Calculation of the Weighted-Average Dumping Margin and Assessment Rate in Certain Antidumping Proceedings: Final Modification, 77 FR 8101 (February 14, 2012).

    To determine whether the duty assessment rates covering the period were de minimis, in accordance with the requirement set forth in 19 CFR 351.106(c)(2), for each respondent we calculated importer (or customer)-specific ad valorem rates by aggregating the amount of dumping calculated for all U.S. sales to that importer or customer and dividing this amount by the total entered value of the sales to that importer (or customer). Where an importer (or customer)-specific ad valorem rate is greater than de minimis, and the respondent has reported reliable entered values, we apply the assessment rate to the entered value of the importer's/customer's entries during the review period.

    We intend to issue assessment instructions directly to CBP 15 days after publication of the final results of this review.

    Cash Deposit Requirements

    The following cash deposit requirements will be effective upon publication of this notice for all shipments of subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication of these final results, as provided by section 751(a)(2) of the Act: (1) The cash deposit rate for respondents noted above will be the rate established in the final results of this administrative review; (2) for merchandise exported by manufacturers or exporters not covered in this administrative review but covered in a prior segment of the proceeding, the cash deposit rate will continue to be the company specific rate published for the most recently completed segment of this proceeding; (3) if the exporter is not a firm covered in this review, a prior review, or the original investigation, but the manufacturer is, the cash deposit rate will be the rate established for the most recently completed segment of this proceeding for the manufacturer of the subject merchandise; and (4) the cash deposit rate for all other manufacturers or exporters will continue to be 22.00 percent, the all-others rate established in the antidumping investigation.13 These cash deposit requirements, when imposed, shall remain in effect until further notice.

    13See Large Power Transformers From the Republic of Korea: Antidumping Duty Order, 77 FR 53177 (August 31, 2012).

    Notification to Importers Regarding the Reimbursement of Duties

    This notice also serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f) to file a certificate regarding the reimbursement of antidumping and/or countervailing duties prior to liquidation of the relevant entries during the POR. Failure to comply with this requirement could result in the Department's presumption that reimbursement of antidumping and/or countervailing duties occurred and the subsequent assessment of doubled antidumping duties.

    Administrative Protective Order

    This notice also serves as a reminder to parties subject to administrative protective orders (APO) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3), which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of the return/destruction of APO materials, or conversion to judicial protective order, is hereby requested. Failure to comply with the regulations and the terms of an APO is a sanctionable violation.

    We are issuing and publishing this notice in accordance with sections 751(a)(1) and 777(i)(1) of the Act and 19 CFR 351.213(h).

    Dated: March 8, 2016. Paul Piquado, Assistant Secretary for Enforcement and Compliance. Appendix List of Topics Discussed in the Final Issues and Decision Memorandum I. Summary II. List of Issues III. Background IV. Scope of the Order V. Discussion of Interested Party Comments A. General Issues Comment 1: The Use of Constructed Value to Calculate Normal Value Comment 2: Whether the Department Should Apply the Transaction-to-Transaction Method, and Whether the Department Should Alter Its Application of Differential Pricing in this Administrative Review B. Hyosung—Specific Issues Comment 3: The Department's Capping of Certain Expense Revenues Comment 4: The Department's Adjustment to Home Market Warranty Expenses and Indirect Selling Expenses Comment 5: The Department's Treatment of Ocean Freight Revenue Comment 6: The Department's Treatment of U.S. Commission Expenses Comment 7: Clerical Error Related to U.S. Direct Selling Expenses C. Hyundai Heavy Industries Co., Ltd.—Specific Issues Comment 8: Hyundai's Reporting of Constructed Value Comment 9: The Department's Treatment of U.S. Commission Offset Comment 10: Hyundai's Failure to Report Reimbursed Expenses Comment 11: Hyundai Reporting of U.S. and Home Market Dates of Sale Comment 12: Hyundai's Reported Installation and Supervision Expenses Comment 13: Hyundai's Calculations of Indirect Selling Expenses for the Home and U.S. Markets Comment 14: Hyundai's Failure to Provide Audited 2013 Financial Statements for Hyundai Corporation (Korea) Comment 15: Application of Adverse Facts Available to Hyundai Comment 16: Hyundai's Reporting of U.S. Credit Expenses Comment 17: Hyundai's Reporting of Bank Charges Incurred on its U.S. Sales Comment 18: Hyundai's Reporting of U.S. Brokerage Expenses Comment 19: Hyundai's Reporting of U.S. Inland Freight Expenses for U.S. Sales that Included Spare Parts Comment 20: Hyundai's Reporting of its U.S. Supervision Costs Comment 21: Verification of Amounts Reported by Hyundai for Warranty Expenses and Domestic Indirect Selling Expenses Incurred in the United States Comment 22: Hyundai's Failure to Report Inventory Carrying Costs Incurred in the United States Comment 23: Issues with Specific U.S. Sales Comment 24: Hyundai's Reporting of Insurance and Packing Expenses for Home-Market Sales Comment 25: Hyundai's Reporting of Home-Market Inland Trucking Expenses Comment 26: Hyundai's Reporting Home Market Insurance Expenses Comment 27: Hyundai's Reporting of Other Direct Selling Expenses Comment 28: Hyundai's Reporting of Actual Packing Expenses Comment 29: Hyundai's Reporting of Warranty Guarantee Expenses Comment 30: Correction to Hyundai's Liquidation Instructions VI. Recommendation
    [FR Doc. 2016-05940 Filed 3-15-16; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration [A-570-956 and C-570-957] Seamless Carbon Alloy Steel Standard Line and Pressure Pipes From the People's Republic of China: Continuation of Antidumping Duty Order and Countervailing Duty Order AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    SUMMARY:

    As a result of the determinations by the Department of Commerce (the Department) and the International Trade Commission (ITC) that revocation of the antidumping duty (AD) order and countervailing duty (CVD) order on seamless carbon alloy steel standard line and pressure pipes (seamless pipe) from the People's Republic of China (PRC) would likely lead to a continuation or recurrence of dumping and countervailable subsidies and material injury to an industry in the United States, the Department is publishing a notice of continuation of the antidumping duty order and the countervailing duty order.

    DATES:

    Effective Date: March 16, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Aleksandras Nakutis, Office IV, or, Peter Zukowski, Office I, AD/CVD Operations, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-3147 or (202) 482-0189.

    SUPPLEMENTARY INFORMATION: Background

    On November 10, 2010, the Department published the AD and CVD orders on imports of seamless pipes from the PRC.1 There have been no administrative reviews since issuance of the Orders. There have been no related findings or rulings (e.g., changed circumstances review, scope ruling, duty absorption review) since issuance of the Orders.

    1See Certain Seamless Carbon and Alloy Steel Standard, Line, and Pressure Pipe From the People's Republic of China: Amended Final Determination of Sales at Less Than Fair Value and Antidumping Duty Order, 75 FR 69052 (November 10, 2010); see also Certain Seamless Carbon and Alloy Steel Standard, Line, and Pressure Pipe From the People's Republic of China: Amended Final Affirmative Countervailing Duty Determination and Countervailing Duty Order, 75 FR 69050 (November 10, 2010) (Orders).

    On October 1, 2015, the Department published a notice of initiation of the first sunset review of the AD and CVD Orders on seamless pipe from the PRC, pursuant to section 751(c) of the Tariff Act of 1930, as amended (the Act).2 As a result of its reviews, the Department determined that revocation of the AD order would likely lead to a continuation or recurrence of dumping and that revocation of the CVD order would likely lead to continuation or recurrence of countervailable subsidies. The Department, therefore, notified the ITC of the magnitude of the margin and the net countervailable subsidy rates likely to prevail should the antidumping order and the countervailing duty order be revoked.3 On March 7, 2016, the ITC published notice of its determination, pursuant to section 751(c) of the Act, that revocation of the AD and CVD orders on seamless pipe from the PRC would likely lead to a continuation or recurrence of material injury to an industry in the United States within a reasonably foreseeable time.4

    2See Initiation of Five-Year “Sunset” Reviews, 80 FR 59133 (October 1, 2015).

    3See Seamless Carbon and Alloy Steel Standard, Line, and Pressure Pipe From the People's Republic of China: Final Results of the Expedited Sunset Review of the Antidumping Duty Order, 81 FR 7305 (February 11, 2016) and accompanying Issues and Decision Memorandum; see also Seamless Carbon and Alloy Steel Standard, Line, and Pressure Pipe From the People's Republic of China: Final Results of Expedited First Sunset Review of the Countervailing Duty Order, 81 FR 5985 (February 4, 2016) and the accompanying Issues and Decision Memorandum.

    4See Certain Seamless Carbon and Alloy Steel Standard, Line, and Pressure Pipe from China: Determination, 81 FR 11837 (March 7, 2016); see also Certain Seamless Carbon and Alloy Steel Standard, Line, and Pressure Pipe from China: Investigation Numbers 701-TA-469 and 731-TA-1168 (Review), USITC Publication 4595, (February 2016).

    Scope of the Orders

    The scope of these orders consists of certain seamless carbon and alloy steel (other than stainless steel) pipes and redraw hollows, less than or equal to 16 inches (406.4 mm) in outside diameter, regardless of wall-thickness, manufacturing process (e.g., hot-finished or cold-drawn), end finish (e.g., plain end, beveled end, upset end, threaded, or threaded and coupled), or surface finish (e.g., bare, lacquered or coated). Redraw hollows are any unfinished carbon or alloy steel (other than stainless steel) pipe or “hollow profiles” suitable for cold finishing operations, such as cold drawing, to meet the American Society for Testing and Materials (“ASTM”) or American Petroleum Institute (“API”) specifications referenced below, or comparable specifications. Specifically included within the scope are seamless carbon and alloy steel (other than stainless steel) standard, line, and pressure pipes produced to the ASTM A-53, ASTM A-106, ASTM A-333, ASTM A-334, ASTM A-589, ASTM A-795, ASTM A-1024, and the API 5L specifications, or comparable specifications, and meeting the physical parameters described above, regardless of application, with the exception of the exclusion discussed below.

    Specifically excluded from the scope of the orders are: (1) All pipes meeting aerospace, hydraulic, and bearing tubing specifications; (2) all pipes meeting the chemical requirements of ASTM A-335, whether finished or unfinished; and (3) unattached couplings. Also excluded from the scope of the order are all mechanical, boiler, condenser and heat exchange tubing, except when such products conform to the dimensional requirements, i.e., outside diameter and wall thickness of ASTM A-53, ASTM A-106 or API 5L specifications.

    The merchandise covered by the orders is currently classified in the Harmonized Tariff Schedule of the United States (“HTSUS”) under item numbers: 7304.19.1020, 7304.19.1030, 7304.19.1045, 7304.19.1060, 7304.19.5020, 7304.19.5050, 7304.31.6050, 7304.39.0016, 7304.39.0020, 7304.39.0024, 7304.39.0028, 7304.39.0032, 7304.39.0036, 7304.39.0040, 7304.39.0044, 7304.39.0048, 7304.39.0052, 7304.39.0056, 7304.39.0062, 7304.39.0068, 7304.39.0072, 7304.51.5005, 7304.51.5060, 7304.59.6000, 7304.59.8010, 7304.59.8015, 7304.59.8020, 7304.59.8025, 7304.59.8030, 7304.59.8035, 7304.59.8040, 7304.59.8045, 7304.59.8050, 7304.59.8055, 7304.59.8060, 7304.59.8065, and 7304.59.8070. Although the HTSUS subheadings are provided for convenience and customs purposes, our written description of the merchandise subject to this scope is dispositive.

    Continuation of the Orders

    As a result of the determinations by the Department and the ITC that revocation of the AD and CVD orders would likely lead to a continuation or recurrence of dumping and countervailable subsidies and material injury to an industry in the United States, pursuant to section 751(d)(2) of the Act and 19 CFR 351.218(a), the Department hereby orders the continuation of the AD order and CVD order on seamless pipe from the PRC. U.S. Customs and Border Protection will continue to collect antidumping and countervailing duty cash deposits at the rates in effect at the time of entry for all imports of subject merchandise.

    The effective date of the continuation of the orders will be the date of publication in the Federal Register of this notice of continuation. Pursuant to section 751(c)(2) of the Act, the Department intends to initiate the next five-year review of the orders not later than 30 days prior to the fifth anniversary of the effective date of continuation.

    These five-year (“sunset”) reviews and this notice are in accordance with section 751(c) of the Act and published pursuant to section 777(i)(1) of the Act and 19 CFR 351.218(f)(4).

    Dated: March 9, 2016. Paul Piquado, Assistant Secretary for Enforcement and Compliance.
    [FR Doc. 2016-05941 Filed 3-15-16; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration [A-201-847] Heavy Walled Rectangular Carbon Steel Pipes and Tubes From Mexico: Amended Preliminary Determination of Sales at Less Than Fair Value AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    SUMMARY:

    As a result of the correction of a significant ministerial error, the Department of Commerce (the Department) continues to preliminarily determine that heavy walled rectangular carbon steel pipes and tubes (HWR pipes and tubes) from Mexico are being sold in the United States at less than fair value (LTFV), as provided in section 733(b) of the Tariff Act of 1930, as amended (the Act). The period of investigation is July 1, 2014, through June 30, 2015. Interested parties are invited to comment on this amended preliminary determination.

    DATES:

    Effective Date: March 1, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Blaine Wiltse or David Crespo, AD/CVD Operations, Office II, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-6345 or (202) 482-3693, respectively.

    SUPPLEMENTARY INFORMATION: Background

    On February 29, 2016, Productos Laminados de Monterrey S.A. de C.V. (Prolamsa), alleged that the Department made a significant ministerial error in the Preliminary Determination. 1

    1See Heavy Walled Rectangular Welded Carbon Steel Pipes and Tubes From Mexico: Affirmative Preliminary Determination of Sales at Less Than Fair Value and Postponement of Final Determination, 81 FR 10587 (March 1, 2016) (Preliminary Determination).

    Scope of the Investigation

    The products covered by this investigation are certain heavy walled rectangular welded steel pipes and tubes of rectangular (including square) cross section, having a nominal wall thickness of not less than 4 mm. The merchandise includes, but is not limited to, the American Society for Testing and Materials (ASTM) A-500, grade B specifications, or comparable domestic or foreign specifications.

    Included products are those in which: (1) Iron predominates, by weight, over each of the other contained elements; (2) the carbon content is 2 percent or less, by weight; and (3) none of the elements below exceeds the quantity, by weight, respectively indicated:

    • 2.50 percent of manganese, or

    • 3.30 percent of silicon, or

    • 1.50 percent of copper, or

    • 1.50 percent of aluminum, or

    • 1.25 percent of chromium, or

    • 0.30 percent of cobalt, or

    • 0.40 percent of lead, or

    • 2.0 percent of nickel, or

    • 0.30 percent of tungsten, or

    • 0.80 percent of molybdenum, or

    • 0.10 percent of niobium (also called columbium), or

    • 0.30 percent of vanadium, or

    • 0.30 percent of zirconium.

    The subject merchandise is currently provided for in item 7306.61.1000 of the Harmonized Tariff Schedule of the United States (HTSUS). Subject merchandise may also enter under HTSUS 7306.61.3000. While the HTSUS subheadings and ASTM specification are provided for convenience and customs purposes, the written description of the scope of this investigation is dispositive.

    Significant Ministerial Error

    A ministerial error is defined in 19 CFR 351.224(f) as “an error in addition, subtraction, or other arithmetic function, clerical error resulting from inaccurate copying, duplication, or the like, and any other similar type of unintentional error which the Secretary considers ministerial.” Further, 19 CFR 351.224(e) provides that the Department “will analyze any comments received and, if appropriate, correct any significant ministerial error by amending the preliminary determination.” A significant ministerial error is defined as a ministerial error, the correction of which, singly or in combination with other errors, would result in: (1) A change of at least five absolute percentage points in, but not less than 25 percent of, the weighted-average dumping margin calculated in the original (erroneous) preliminary determination; or (2) a difference between a weighted-average dumping margin of zero or de minimis and a weighted-average dumping margin of greater than de minimis or vice versa.2

    2See 19 CFR 351.224(g)(1) and (2).

    Ministerial Error Allegation

    Productos Laminados de Monterrey S.A. de C.V. (Prolamsa) argues that the Department in its margin calculations incorrectly referenced the variable name for the production quantity reported in Prolamsa' cost of production database as “QUANTITY,” rather than “PRODQTY.” 3 As a result of this error, Prolamsa points out that the Department failed to weight average Prolamsa's reported costs by production quantity, but instead calculated a simple average of Prolamsa's costs.

    3See letter from Prolamsa entitled, “Heavy Walled Rectangular Carbon Steel Pipes and Tubes from Mexico: Ministerial Error Comments,” dated February 29, 2016, at page 3.

    We agree with Prolamsa. Moreover, pursuant to 19 CFR 351.224(g)(2), this error is significant because the correction of the error results in a change of at least five absolute percentage points in, but not less than 25 percent of, the weighted-average dumping margin originally calculated for Prolamsa. Therefore, we are correcting the error alleged by Prolamsa and we are amending our preliminary determination accordingly.

    The collection of cash deposits and suspension of liquidation will be revised accordingly in accordance with sections 733(d) and (f) of the Act and 19 CFR 351.224. Because the correction of the error for Prolamsa results in a reduced cash deposit rate, the revised rates calculated for Prolamsa and the companies covered by the “all others” rate will be effective retroactively to March 1, 2016, the date of publication of the Preliminary Determination.

    Amended Preliminary Determination

    We are amending the preliminary determination of sales at LTFV for HWR pipes and tubes from Mexico to reflect the correction of a ministerial error made in the margin calculation of that determination for Prolamsa. As a result of the correction of the ministerial error, the revised weighted-average dumping margins are as follows:

    Exporter/manufacturer Weighted-average dumping margin
  • (percent)
  • Productos Laminados de Monterrey S.A. de C.V. 5.17 All Others 4 4.92
    International Trade Commission (ITC) Notification

    In accordance with section 733(f) of the Act, we are notifying the International Trade Commission (ITC) of our amended preliminary determination of sales at LTFV. If our final determination is affirmative, the ITC will determine before the later of 120 days after the date of this preliminary determination or 45 days after our final determination whether these imports are materially injuring, or threaten material injury to, the U.S. industry.5

    4 In this investigation, we based our calculation of the all-others rate on the weighted-average of the margins calculated for Maquilacero S.A. de C.V. and Prolamsa using publicly-ranged data. Because we cannot apply our normal methodology of calculating a weighted-average margin due to requests to protect business-proprietary information, we find this rate to be the best proxy of the actual weighted-average margin determined for these respondents. For further discussion of this calculation, see the memorandum entitled “Less-Than-Fair-Value Investigation of Heavy Walled Rectangular Welded Carbon Steel Pipes and Tubes from Mexico: Calculation of the All-Others Rate for the Amended Preliminary Determination,” dated concurrently with this notice.

    5See 735(b)(2) of the Act.

    Notification to Interested Parties

    The Department intends to disclose calculations performed in connection with this amended preliminary determination within five days of the date of publication of this notice in accordance with 19 CFR 351.224(b).

    This determination is issued and published in accordance with sections 733(f) and 777(i) of the Act and 19 CFR 351.224(e).

    Dated: March 9, 2016. Paul Piquado, Assistant Secretary for Enforcement and Compliance.
    [FR Doc. 2016-05943 Filed 3-15-16; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration [A-427-602] Brass Sheet and Strip From France: Final Results of Antidumping Duty Administrative Review; 2014-2015 AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    SUMMARY:

    On December 1, 2015, the Department of Commerce (the Department) published the preliminary results of the administrative review of the antidumping duty order on brass sheet and strip from France.1 The review covers Griset SA (Griset) and KME France SAS (KME France). The period of review (POR) is March 1, 2014, through February 28, 2015. We invited interested parties to comment on our Preliminary Results. No parties commented, and our final results remain unchanged from our Preliminary Results. The final results are listed in the section entitled “Final Results of Review” below.

    1See Brass Sheet and Strip From France: Preliminary Results of Antidumping Duty Administrative Review; 2014-2015, 80 FR 75055 (December 1, 2015) (Preliminary Results).

    DATES:

    Effective Date: March 16, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Mark Flessner or Robert James, AD/CVD Operations, Office VI, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-6312 or (202) 482-0649, respectively.

    SUPPLEMENTARY INFORMATION: Background

    On December 1, 2015, the Department published the preliminary results of this review in the Federal Register. See Preliminary Results. We invited parties to comment on the Preliminary Results. No party commented, nor did any party request a hearing.

    As explained in the memorandum from the Acting Assistant Secretary for Enforcement & Compliance, the Department has exercised its discretion to toll all administrative deadlines due to the recent closure of the Federal Government. All deadlines in this segment of the proceeding have been extended by four business days. The revised deadline for the final results of this review is now April 5, 2016.2

    2See Memorandum to the Record from Ron Lorentzen, Acting A/S for Enforcement & Compliance, regarding “Tolling of Administrative Deadlines As a Result of the Government Closure During Snowstorm Jonas,” dated January 27, 2016. Therefore, the deadline for signature of these final results will be Tuesday, April 5, 2016.

    Scope of the Order

    The product covered by the order is brass sheet and strip, other than leaded and tinned brass sheet and strip, from France. The merchandise is currently classified under Harmonized Tariff Schedule of the United States (HTSUS) item numbers 7409.21.00 and 7409.29.00.3

    3 For a full description of the scope of the order, see the memorandum from Christian Marsh, Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations, to Paul Piquado, Assistant Secretary for Enforcement and Compliance, entitled “Decision Memorandum for Preliminary Results of the 2014-2015 Antidumping Duty Administrative Review: Brass Sheet and Strip from France,” dated November 17, 2015.

    Final Results of Review

    As noted above, the Department has received no comments concerning the Preliminary Results on the record of this segment of the proceeding. As there are no changes from, or comments upon, the Preliminary Results, there is no decision memorandum accompanying this Federal Register notice. For further details of the issues addressed in this proceeding, see Preliminary Results. The final weighted-average dumping margin for the period March 1, 2014, through February 28, 2015, is as follows:

    Producer or exporter Estimated
  • weighted-average
  • dumping margin
  • (percent)
  • Griset SA 42.24 KME France SAS 42.24
    Assessment

    The Department shall determine, and U.S. Customs and Border Protection (CBP) shall assess, antidumping duties on all appropriate entries, in accordance with 19 CFR 351.212(b)(1). The Department intends to issue appropriate assessment instructions for the companies subject to this review to CBP 15 days after the date of publication of these final results. We shall instruct CBP to apply an ad valorem assessment rate of 42.24 percent to all entries of subject merchandise during the POR which were produced and/or exported by Griset or KME France.

    Cash Deposit Requirements

    The following deposit rates will be effective upon publication of the final results of this administrative review for all shipments of brass sheet and strip from France entered, or withdrawn from warehouse, for consumption on or after the publication date, as provided by section 751(a)(2)(C) of the Tariff Act of 1930, as amended (the Act): (1) For Griset or KME France, the cash deposit rate will be equal to the weighted-average dumping margin listed above; (2) for previously reviewed or investigated companies not listed above, the cash deposit rate will continue to be the company-specific rate published for the most recently completed segment of this proceeding in which that manufacturer or exporter participated; (3) if the exporter is not a firm covered in this review, a prior review, or the original LTFV investigation, but the producer is, the cash deposit rate will be the rate established for the most recently completed segment of this proceeding for the producer of the merchandise; and (4) if neither the exporter nor the producer is a firm covered in this review, any previous review, or the original investigation, the cash deposit rate will be 42.24 percent ad valorem, the “all others” rate established in the LTFV investigation.4 These cash deposit requirements, when imposed, shall remain in effect until further notice.

    4See Antidumping Duty Order; Brass Sheet and Strip From France, 52 FR 6995 (March 6, 1987).

    Notification to Importers

    This notice serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.

    Administrative Protective Order Notification to Interested Parties

    This notice serves as the only reminder to parties subject to administrative protective order (APO) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3), which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of the return or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and the terms of an APO is a sanctionable violation.

    Notification to Interested Parties

    This administrative review and notice are issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Act and 19 CFR 351.213(h)(1).

    Dated: March 9, 2016. Paul Piquado, Assistant Secretary for Enforcement and Compliance.
    [FR Doc. 2016-05992 Filed 3-15-16; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration [A-570-909] Certain Steel Nails From the People's Republic of China: Final Results of Antidumping Duty Administrative Review; 2013-2014 AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    SUMMARY:

    The Department of Commerce (the “Department”) published the Preliminary Results of the sixth administrative review of the antidumping duty order on certain steel nails from the People's Republic of China (“PRC”) on September 4, 2015.1 We gave interested parties an opportunity to comment on the Preliminary Results. Based upon our analysis of the comments and information received, we made changes to the margin calculation for these final results regarding one of the mandatory respondents, Stanley.2 We also continue to find that the other mandatory respondent, Shandong Oriental Cherry Hardware Group Co., Ltd. (“Shandong Oriental Cherry”), withheld requested information, significantly impeded this administrative review, and did not cooperate to the best of its ability. Accordingly, pursuant to sections 776(a) and (b) of the Tariff Act of 1930, as amended (“the Act”), we continue to apply total adverse facts available (“AFA”) to Shandong Oriental Cherry and find that it is not eligible for separate rate status and, thus, is part of the PRC-wide entity. The final dumping margins are listed below in the “Final Results of Administrative Review” section of this notice. The period of review (“POR”) is August 1, 2013, through July 31, 2014.

    1See Certain Steel Nails from the People's Republic of China: Preliminary Results of the Antidumping Duty Administrative Review and Preliminary Determination of No Shipments; 2013-2014, 80 FR 53490 (September 4, 2015) (“Preliminary Results”) and accompanying Preliminary Decision Memorandum.

    2 The Stanley Works (Langfang) Fastening Systems Co., Ltd. and Stanley Black & Decker, Inc. (collectively, “Stanley”).

    DATES:

    Effective Date: March 16, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Julia Hancock or Matthew Renkey, AD/CVD Operations, Office V, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone 202-482-1394 or 202-482-2312, respectively.

    SUPPLEMENTARY INFORMATION: Background

    The Department published the Preliminary Results on September 4, 2015.3 On December 21, 2015, the Department extended the deadline in this proceeding by 60 days.4 As explained in the memorandum from the Acting Assistant Secretary for Enforcement and Compliance, the Department has exercised its discretion to toll all administrative deadlines due to the recent closure of the Federal Government. All deadlines in this segment of the proceeding have been extended by four business days. The revised deadline for the final results of this review is now March 7, 2016.5

    3See Preliminary Results.

    4See Memorandum to Gary Taverman, “Certain Steel Nails from the People's Republic of China: Extension of Deadline for Final Results of the Sixth Antidumping Duty Administrative Review,” (December 21, 2015).

    5See Memorandum to the Record from Ron Lorentzen, Acting A/S for Enforcement & Compliance, regarding “Tolling of Administrative Deadlines As a Result of the Government Closure During Snowstorm Jonas,” (January 27, 2016).

    In accordance with 19 CFR 351.309, we invited parties to comment on our Preliminary Results. On October 30, 2015, Qingdao D&L, et al., 6 Nanjing Yuechang,7 National Nail,8 Petitioner,9 Shandong Oriental Cherry, and Tianjin Jinchi 10 submitted timely-filed case briefs, pursuant to our regulations.11 Additionally, on November 6, 2015, Petitioner and Stanley submitted timely-filed rebuttal briefs.12 Moreover, on November 20, 2015, Stanley submitted its timely-filed case brief, pursuant to our regulations.13 Finally, on January 12, 2016, the Department held a public hearing where counsel for National Nail, Petitioner, Shandong Oriental Cherry, and Stanley presented issues raised in their case and rebuttal briefs.

    6 Qingdao D&L Group Ltd. (“Qingdao D&L”), SDC International Aust. PTY. Ltd. (“SDC International”), Tianjin Lianda Group Co., Ltd. (“Tianjin Lianda”), and Tianjin Universal Machinery Import & Exp. Corporation (“Tianjin Universal”) (collectively, “Qingdao D&L, et al.”).

    7 Nanjing Yuechang Hardware Co., Ltd. (“Nanjing Yuechang”).

    8 National Nail Corp. (“National Nail”).

    9 Mid Continent Steel & Wire, Inc. (“Petitioner”).

    10 Tianjin Jinchi Metal Products Co., Ltd. (“Tianjin Jinchi”).

    11See Letter to the Secretary from Qingdao D&L, et al., “Certain Steel Nails from the People's Republic of China: Case Brief” (October 30, 2015) (“Qingdao D&L, et al.'s Case Brief”); Letter to the Secretary from Nanjing Yuechang, “Certain Steel Nails from the People's Republic of China; Case Brief” (October 30, 2015) (“Nanjing Yuechang's Case Brief”); Letter to the Secretary from National Nail, “Certain Steel Nails from the People's Republic of China: Case Brief” (October 30, 2015); Letter to the Secretary from Petitioner, “Certain Steel Nails from the People's Republic of China: Case Brief” (October 30, 2015) (“Petitioner's Case Brief”); Letter to the Secretary from Shandong Oriental Cherry, “Certain Steel Nails from the People's Republic of China: Case Brief,” (October 30, 2015) (“Shandong Oriental Cherry's Case Brief”); and Letter to the Secretary from Tianjin Jinchi, “Certain Steel Nails from the People's Republic of China: Case Brief,” (October 30, 2015) (“Tianjin Jinchi's Case Brief”).

    12See Letter to the Secretary from Petitioner, “Certain Steel Nails from China: Petitioner's Rebuttal Brief” (November 6, 2015) (“Petitioner's Rebuttal Brief”); and Letter to the Secretary from Stanley, “Certain Steel Nails from China: Stanley's Rebuttal Brief” (November 6, 2015) (“Stanley's Rebuttal Brief”).

    13See Letter to the Secretary from Stanley, “Certain Steel Nails from China: Stanley's Revised Case Brief” (November 20, 2015) (“Stanley's Revised Case Brief”).

    Scope of the Order

    The merchandise covered by the order includes certain steel nails having a shaft length up to 12 inches. Certain steel nails subject to the order are currently classified under the Harmonized Tariff Schedule of the United States (“HTSUS”) subheadings 7317.00.55, 7317.00.65, 7317.00.75, and 7907.00.6000.14 While the HTSUS subheadings are provided for convenience and customs purposes, the written description of the scope of the order, which is contained in the accompanying Issues and Decision Memorandum (“I&D Memo”), is dispositive.15

    14 The Department recently added the Harmonized Tariff Schedule category 7907.00.6000, “Other articles of zinc: Other,” to the language of the Order. See Memorandum to Gary Taverman, Senior Advisor for Antidumping and Countervailing Duty Operations, through James C. Doyle, Director, Office 9, Antidumping and Countervailing Duty Operations, regarding “Certain Steel Nails from the People's Republic of China: Cobra Anchors Co. Ltd. Final Scope Ruling,” (September 19, 2013).

    15 For a full description of the scope of the Order, see Memorandum from Christian Marsh, Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations, to Paul Piquado, Assistant Secretary for Enforcement and Compliance, “Issues and Decision Memorandum for the Final Results of Sixth Antidumping Duty Administrative Review: Certain Steel Nails from the People's Republic of China” (March 7, 2016) (“I&D Memo”) which is adopted by this notice.

    Analysis of Comments Received

    We addressed all issues raised in the case and rebuttal briefs by parties in this review in the I&D Memo. Attached to this notice, in Appendix I, is a list of the issues which parties raised. The I&D Memo is a public document and is on file in the Central Records Unit (“CRU”), Room B8024 of the main Department of Commerce building, as well as electronically via Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (“ACCESS”). ACCESS is available to registered users at http://access.trade.gov and in the CRU. In addition, a complete version of the I&D Memo can be accessed directly on the internet at http://enforcement.trade.gov/frn/index.html. The signed I&D Memo and the electronic versions of the I&D Memo are identical in content.

    Changes Since the Preliminary Results

    Based on a review of the record and comments received from interested parties regarding our Preliminary Results, and for the reasons explained in the Issues and Decision Memorandum, we revised the margin calculation for Stanley. Accordingly, for the final results, the Department has updated the margin to be assigned to companies eligible for a separate rate as the revised calculated margin of the sole mandatory respondent, Stanley, whose margin is not zero, de minimis, or based on facts available, unlike the other mandatory respondent, Shandong Oriental Cherry, whose margin is the PRC-wide entity rate of 118.04 percent. The Surrogate Values Memo contains further explanation of our changes to the surrogate values selected for Stanley's factors of production.16 For a list of all issues addressed in these final results, please refer to Appendix I accompanying this notice.

    16See Memorandum to the File, through Paul Walker, Program Manager, Office V, Enforcement and Compliance, from Julia Hancock, Senior International Trade Analyst, Office V, Enforcement and Compliance, regarding Sixth Antidumping Administrative Review of Certain Steel Nails from the People's Republic of China: Surrogate Values for the Final Results, dated concurrently with and hereby adopted by this notice (“Surrogate Values Memo”).

    Final Determination of No Shipments

    In the Preliminary Results, the Department preliminarily determined that Besco Machinery Industry (Zhejiang) Co., Ltd. (“Besco”), Certified Products International Inc. (“CPI”), Huanghua Jinhai Hardware Products Co., Ltd. (“Jinhai”), Huanghua Xionghua Hardware Products Co., Ltd. (“Huanghua Xionghua”), Nanjing Yuechang Hardware Co., Ltd. (“Yuechang”), PT Enterprise Inc., Qingdao Jisco Co., Ltd. and Jisco Corporation (collectively, “JISCO”), Shanghai Jade Shuttle Hardware Tools Co., Ltd. (“Shanghai Jade Shuttle”), Shanghai Tengyu Hardware Tools Co., Ltd. (“Shanghai Tengyu”), Shanxi Yuci Broad Wire Products Co., Ltd. (“Shanxi Yuci”), and Zhejiang Gem-Chun Hardware Accessory Co., Ltd (“Gem-Chun”) did not have any reviewable transactions during the POR. Consistent with the Department's assessment practice in non-market economy (“NME”) cases, we completed the review with respect to the above-named companies. Based on the certifications submitted by the aforementioned companies, and our analysis of CBP information, we continue to determine that these companies did not have any reviewable transactions during the POR. As noted in the “Assessment Rates” section below, the Department intends to issue appropriate instructions to CBP for the above-named companies based on the final results of this review.

    Final Results of Administrative Review

    The weighted-average dumping margins for the administrative review are as follows:

    Exporter Weighted-
  • average
  • margin
  • (percent)
  • Stanley 11.95 Chiieh Yung Metal Ind. Corp 11.95 Dezhou Hualude Hardware Products Co., Ltd 11.95 Hebei Cangzhou New Century Foreign Trade Co., Ltd 11.95 Nanjing Caiqing Hardware Co., Ltd 11.95 Qingdao D&L Group Ltd 11.95 SDC International Aust. PTY. Ltd 11.95 Shandong Dinglong Import & Export Co., Ltd 11.95 Shanghai Curvet Hardware Products Co., Ltd 11.95 Shanghai Yueda Nails Industry Co., Ltd 11.95 Shanxi Hairui Trade Co., Ltd 11.95 Shanxi Pioneer Hardware Industrial Co., Ltd 11.95 Shanxi Tianli Industries Co., Ltd 11.95 S-Mart (Tianjin) Technology Development Co., Ltd 11.95 Suntec Industries Co., Ltd 11.95 Tianjin Jinchi Metal Products Co., Ltd 11.95 Tianjin Jinghai County Hongli Industry & Business Co., Ltd 11.95 Tianjin Lianda Group Co., Ltd 11.95 Tianjin Universal Machinery Imp. & Exp. Corporation 11.95 Tianjin Zhonglian Metals Ware Co., Ltd 11.95 Xi'an Metals & Minerals Import & Export Co., Ltd 11.95

    In addition, the Department continues to find that the companies identified in Appendix to the Issues and Decision Memorandum, attached to this notice, are part of the PRC-wide entity.17

    17 The Department notes that a company, Nanjing Yuechang Hardware Co., Ltd. (“Yuechang”), is no longer being considered part of the PRC-wide entity, as discussed in Comment 13 of the Issues and Decision Memorandum.

    Assessment Rates

    Pursuant to section 751(a)(2)(A) of the Tariff Act of 1930, as amended (the “Act”), and 19 CFR 351.212(b), the Department has determined, and U.S. Customs and Border Protection (“CBP”) shall assess, antidumping duties on all appropriate entries of subject merchandise in accordance with the final results of this review. The Department intends to issue appropriate assessment instructions directly to CBP 15 days after publication of the final results of this administrative review.

    Where the respondent reported reliable entered values, we calculated importer- (or customer specific ad valorem rates by aggregating the dumping margins calculated for all U.S. sales to each importer (or customer) and dividing this amount by the total entered value of the sales to each importer (or customer).18 Where the Department calculated a weighted-average dumping margin by dividing the total amount of dumping for reviewed sales to that party by the total sales quantity associated with those transactions, the Department will direct CBP to assess importer-specific assessment rates based on the resulting per-unit rates.19 Where an importer- (or customer-) specific ad valorem or per-unit rate is greater than de minimis, the Department will instruct CBP to collect the appropriate duties at the time of liquidation.20 Where an importer- (or customer-) specific ad valorem or per-unit rate is zero or de minimis, the Department will instruct CBP to liquidate appropriate entries without regard to antidumping duties.21 We intend to instruct CBP to liquidate entries containing subject merchandise exported by the PRC-wide entity at the PRC-wide rate.

    18See 19 CFR 351.212(b)(1).

    19Id.

    20Id.

    21See 19 CFR 351.106(c)(2).

    Pursuant to the Department's assessment practice, for entries that were not reported in the U.S. sales databases submitted by companies individually examined during this review, the Department will instruct CBP to liquidate such entries at the PRC-wide entity rate. Additionally, if the Department determines that an exporter had no shipments of the subject merchandise, any suspended entries that entered under that exporter's case number (i.e., at that exporter's rate) will be liquidated at the PRC-wide entity rate.22

    22See Non-Market Economy Antidumping Proceedings: Assessment of Antidumping Duties, 76 FR 65694 (October 24, 2011).

    Cash Deposit Requirements

    The following cash deposit requirements will be effective upon publication of the final results of this administrative review for all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date, as provided for by section 751(a)(2)(C) of the Act: (1) For the exporter listed above, the cash deposit rate will be the rate established in the final results of review (except, if the rate is zero or de minimis, i.e., less than 0.5 percent, a zero cash deposit rate will be required for that company); (2) for previously investigated or reviewed PRC and non-PRC exporters not listed above that have separate rates, the cash deposit rate will continue to be the exporter-specific rate published for the most recent period; (3) for all PRC exporters of subject merchandise which have not been found to be entitled to a separate rate, the cash deposit rate will be the PRC-Wide rate of 118.04 percent; and (4) for all non-PRC exporters of subject merchandise which have not received their own rate, the cash deposit rate will be the rate applicable to the PRC exporters that supplied that non-PRC exporter. The deposit requirements shall remain in effect until further notice.

    Disclosure

    We intend to disclose the calculations performed within five days of the date of publication of this notice to parties in this proceeding in accordance with 19 CFR 351.224(b).

    Notification to Importers

    This notice also serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this POR. Failure to comply with this requirement could result in the Department's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of doubled antidumping duties.

    Administrative Protective Orders

    This notice also serves as a reminder to parties subject to administrative protective order (“APO”) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3), which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of the return or destruction of APO materials, or conversion to judicial protective order, is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanction.

    We are issuing and publishing these final results of administrative review in accordance with sections 751(a)(1) and 777(i) of the Act.

    Dated: March 7, 2016. Paul Piquado, Assistant Secretary for Enforcement and Compliance. Appendix I—Issues and Decision Memorandum I. Summary II. Background III. Scope of the Order IV. Discussion of the Issues Comment 1: Withdrawal of the Regulatory Provisions Governing Targeted Dumping in Less-than-Fair-Value Investigations Comment 2: Differential Pricing Methodology Comment 3: Calculation of Separate Rate Margin Comment 4: Application of Total Adverse Facts Available (“AFA”) to Shandong Oriental Cherry Comment 5: Granting a Separate Rate to the Shandong Oriental Cherry Entity Comment 6: Rejection of Stanley's Case Brief Comment 7: Surrogate Value for Stanley's Steel Wire Rod Input Comment 8: Surrogate Value for Stanley's Plastic Granules Comment 9: Treatment of Stanley's Rubber Bands Comment 10: Use of Customer Code or Common Customer Code in the Cohen's d Test To Identify the Purchaser in Stanley's Margin Program Comment 11: Granting of Separate Rates to Qingdao D&L, et al. Comment 12: Tianjin Jinchi's Status in This Review Comment 13: Yuechang's Status in This Review V. Conclusion
    [FR Doc. 2016-05994 Filed 3-15-16; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XC969 Draft Guidance for Assessing the Effects of Anthropogenic Sound on Marine Mammal Hearing—Acoustic Threshold Levels for Onset of Permanent and Temporary Threshold Shifts AGENCY:

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

    ACTION:

    Notice; request for comments.

    SUMMARY:

    The National Marine Fisheries Service (NMFS), on behalf of NMFS and the National Ocean Service (referred collectively here as the National Oceanic and Atmospheric Administration (NOAA)), announces the availability of a document containing proposed changes to its Draft Guidance for Assessing the Effects of Anthropogenic Sound on Marine Mammal Hearing. The Guidance provides updated received levels, or thresholds, at which individual marine mammals under NOAA's management authority are predicted to experience changes in their hearing sensitivity (either temporary or permanent) for all underwater anthropogenic sound sources. NOAA has re-evaluated and modified several parts of the Draft Guidance and is soliciting public comment on the proposed changes.

    DATES:

    Comments must be received by March 30, 2016.

    ADDRESSES:

    The proposed changes to the Draft Guidance are available in electronic form via the Internet at http://www.nmfs.noaa.gov/pr/acoustics/.

    You may submit comments, which should be identified with NOAA-NMFS-2013-0177, by either of the following methods:

    Electronic Submissions: Submit all electronic public comments via the Federal eRulemaking Portal http://www.regulations.gov.

    Mail: Send comments to: Chief, Marine Mammal and Sea Turtle Conservation Division, Office of Protected Resources, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910-3226, Attn: Acoustic Guidance.

    Instructions: All comments received are a part of the public record and will generally be posted to http://www.regulations.gov without change. All Personal Identifying Information (e.g., name, address, etc.) voluntarily submitted by the commenter may be publicly accessible. Do not submit Confidential Business Information or otherwise sensitive or protected information.

    NMFS will accept anonymous comments (enter N/A in the required fields if you wish to remain anonymous). You may submit attachments to electronic comments in Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only.

    FOR FURTHER INFORMATION CONTACT:

    Amy Scholik-Schlomer, Office of Protected Resources, 301-427-8449, [email protected]

    SUPPLEMENTARY INFORMATION:

    NOAA has developed Draft Guidance for assessing the effects of anthropogenic sound on the hearing of marine mammal species under NOAA's jurisdiction (i.e., whales, dolphins, porpoises, seals and sea lions). Specifically, the Guidance, which is technical in nature, identifies the received levels, or thresholds, at which individual marine mammals are predicted to experience changes in their hearing sensitivity (either temporary or permanent) for all underwater anthropogenic sound sources. This Guidance is intended to be used by NOAA analysts and managers and other relevant user groups and stakeholders, including other federal agencies, when seeking to determine whether and how their activities are expected to result in particular types of impacts to marine mammals via acoustic exposure. The document outlines NOAA's updated acoustic threshold levels, describes in detail how the thresholds were developed, and explains how we intend to update them in the future.

    NOAA first published a Federal Register Notice on December 27, 2013, announcing the availability of the Draft Guidance and a 30-day public comment period (78 FR 78822), which was extended another 45 days based upon public request (79 FR 4672; January 29, 2014). While NOAA was in the process of evaluating and addressing public comments, the U.S. Navy updated its methodology for the development of marine mammal auditory weighting functions and acoustic threshold levels. NOAA evaluated the proposed methodology and determined that it reflected the best available science. As a result, NOAA incorporated the Navy's methodology into our Draft Guidance and conducted another 45-day public comment period (80 FR 45642; July 31, 2015). Please refer to these Federal Register Notices for additional background about the 2013 and 2015 Draft Guidance.

    While NOAA was working to address public comments from the second public comment period and finalize the Guidance, NOAA and the Navy (SPAWAR Systems Center Pacific) further evaluated certain aspects of the U.S. Navy's methodology. As a result, several recommendations/modifications were suggested.

    The recommendations include: An updated methodology for predicting a composite audiogram for LF cetaceans; modification of the methodology used to establish auditory threshold levels for LF cetaceans; movement of the white-beaked dolphin (Lagenorhynchus albirostris) from mid-frequency (MF) to high-frequency (HF) cetaceans; the inclusion of a newly published harbor porpoise (HF cetacean) audiogram (Kastelein et al. 2015); the exclusion of multiple data sets from the phocid pinniped weighting function; removal of peak sound pressure level (PK) acoustic threshold levels for non-impulsive sounds; and updated methodology for deriving PK acoustic threshold levels for functional hearing groups where no data are available.

    After consideration of these recommendations, NOAA has updated the Draft Guidance to reflect the suggested changes and is soliciting public comment on those revisions, which have been placed in a stand-alone document, via a focused 14-day public comment period. As the Guidance is finalized, NOAA will address all substantive public comments on the Guidance (i.e., from the first and second public comment periods, as well as those from this focused third public comment period). Accordingly, there is no need to reiterate or resubmit comments made during the first and second public comment period on other sections of the Draft Guidance. NOAA encourages the public to focus comment on the document containing the proposed changes to the Guidance.

    The Guidance is classified as a Highly Influential Scientific Assessment by the Office of Management and Budget. As such, independent peer review is required prior to broad public dissemination by the Federal Government. As part of this process, NOAA has conducted three independent peer reviews in association with the Guidance. Details of all peer reviews can be found within the Guidance and at the following Web site: http://www.nmfs.noaa.gov/pr/acoustics/. Concurrent with this third public comment period, NOAA requested that the peer reviewers of the Navy's methodology review the document containing the proposed changes to the Draft Guidance and indicate whether the revisions would significantly alter any of the commen