Federal Register Vol. 81, No.54,

Federal Register Volume 81, Issue 54 (March 21, 2016)

Page Range14947-15152
FR Document

81_FR_54
Current View
Page and SubjectPDF
81 FR 15109 - Sunshine Act MeetingsPDF
81 FR 15109 - Sunshine Act MeetingPDF
81 FR 14953 - Addition of Certain Persons and Modification to Entries on the Entity List; and Removal of Certain Persons From the Entity ListPDF
81 FR 15133 - Sunshine Act: Notice of Agency MeetingPDF
81 FR 15133 - Sunshine Act Meeting; Institutional Advancement Committee; CorrectionPDF
81 FR 14948 - Flights to and From CubaPDF
81 FR 15143 - In the Matter of Broke Out, Inc.; Order of Suspension of TradingPDF
81 FR 15113 - Agency Information Collection Activities: Submission to OMB for Review and Approval; Public Comment RequestPDF
81 FR 15105 - Agency Information Collection Activities; Proposed Renewal of an Existing Collection (EPA ICR No. 2415.03); Comment RequestPDF
81 FR 15107 - Agency Information Collection Activities; Proposed Collection (EPA ICR No. 2531.01); Comment RequestPDF
81 FR 15144 - Certification Pursuant to the Department of State, Foreign Operations, and Related Programs Appropriations Act, 2016PDF
81 FR 14995 - Safety Zone; Hope Chest Buffalo Niagara Dragon Boat Festival, Buffalo River, Buffalo, NYPDF
81 FR 15144 - Certification Pursuant to the Department of State, Foreign Operations, and Related Programs Appropriations ActPDF
81 FR 15131 - Agency Information Collection Activities; Comment Request; Proposed Extension of the Labor Standards for Federal Service Contracts-Regulations Information CollectionPDF
81 FR 15130 - The Standard on Process Safety Management of Highly Hazardous Chemicals; Extension of the Office of Management and Budget's (OMB) Approval of Information Collection (Paperwork) RequirementsPDF
81 FR 14986 - Fisheries of the Northeastern United States; Northeast Multispecies Fishery; Adjustment of Georges Bank and Southern New England/Mid-Atlantic Yellowtail Flounder Annual Catch LimitsPDF
81 FR 14984 - Structure and Practices of the Video Relay Service Program; Telecommunications Relay Services and Speech-to-Speech Services for Individuals With Hearing and Speech DisabilitiesPDF
81 FR 15108 - Information Collection Being Reviewed by the Federal Communications CommissionPDF
81 FR 15115 - Recreational Boating Safety-Strategic Plan of the National Recreational Boating Safety Program 2017-2021PDF
81 FR 15100 - National Rivers and Streams Assessment 2008/2009 Final ReportPDF
81 FR 15090 - Applications for New Awards; Carol M. White Physical Education ProgramPDF
81 FR 15039 - Circular Welded Carbon-Quality Steel Pipe From the Sultanate of Oman, Pakistan, the United Arab Emirates, and the Socialist Republic of Vietnam: Postponement of Preliminary Determinations of Antidumping Duty InvestigationsPDF
81 FR 15039 - Aluminum Extrusions From the People's Republic of China: Initiation of Anti-Circumvention InquiryPDF
81 FR 15038 - Brass Sheet and Strip From Italy; Final Results of Antidumping Duty Administrative Review; 2014-2015PDF
81 FR 14988 - Fisheries of the Economic Exclusive Zone Off Alaska; Deep-Water Species Fishery by Vessels Using Trawl Gear in the Gulf of AlaskaPDF
81 FR 15000 - Safety Zone; Cocos Lagoon, Merizo, GUPDF
81 FR 15037 - Notice of Public Meeting of the Indiana Advisory Committee To Discuss Testimony Regarding Civil Rights and the School to Prison Pipeline in IndianaPDF
81 FR 15037 - Notice of Public Meeting of the Illinois Advisory Committee To Discuss Draft Advisory Memorandum Regarding Civil Rights and Environmental Justice in the StatePDF
81 FR 15036 - Notice of Public Meeting of the Illinois Advisory Committee To Discuss Findings and Recommendations Regarding Civil Rights and Environmental Justice in the StatePDF
81 FR 15116 - Agency Information Collection Activities: Comment Request; Extension of an Information CollectionPDF
81 FR 15099 - Advanced Hydropower, Inc.; Notice of Surrender of Preliminary PermitPDF
81 FR 15099 - Pacific Gas and Electric Company; Notice of Petition for Declaratory OrderPDF
81 FR 15098 - LS Power Development, LLC; Cross Texas Transmission, LLC; Notice Of Petiton for Declaratory OrderPDF
81 FR 15133 - License Amendment Application for Source Materials License Jefferson Proving GroundPDF
81 FR 15045 - Pacific Fishery Management Council; Public MeetingsPDF
81 FR 15047 - Mid-Atlantic Fishery Management Council (MAFMC); Public MeetingsPDF
81 FR 15047 - New England Fishery Management Council; Public MeetingPDF
81 FR 15109 - Agency Information Collection Activities: Announcement of Board Approval Under Delegated Authority and Submission to OMBPDF
81 FR 15110 - Proposed Substances To Be Evaluated for Set 30 Toxicological ProfilesPDF
81 FR 15116 - Oregon Department of Forestry; Proposed Safe Harbor Agreement for the Northern Spotted Owl and Draft Environmental AssessmentPDF
81 FR 15149 - Proposed Information Collection-Status of Loan Account-Foreclosure or Other Liquidation, VA Form 26-0971; Activity: Comment RequestPDF
81 FR 15151 - Proposed Information Collection-Designation of Beneficiary (VA Form 29-336) Activity: Comment RequestPDF
81 FR 15150 - Agency Information Collection (Student Verification of Enrollment) Activity Under OMB ReviewPDF
81 FR 15151 - Proposed Information Collection (Authorization To Disclose Personal Information to a Third Party) Activity: Comment RequestPDF
81 FR 15152 - Proposed Information Collection (Request for Determination of Loan Guaranty Eligibility-Unmarried Surviving Spouses); Activity: Comment RequestPDF
81 FR 15149 - Proposed Information Collection (Dependent's Educational Assistance (DEA) Election Letter) Activity: Comment RequestPDF
81 FR 14976 - Rights-of-Way on Indian LandPDF
81 FR 15135 - Notice of Public Meeting of Presidio Institute Advisory CouncilPDF
81 FR 15121 - Notice of Public Meeting, Albuquerque District Resource Advisory Council Meeting, New MexicoPDF
81 FR 14976 - Drawbridge Operation Regulation; Trent River, New Bern, NCPDF
81 FR 15036 - Wenatchee-Okanogan Resource Advisory CommitteePDF
81 FR 15034 - Glenn and Colusa County Resource Advisory CommitteePDF
81 FR 15035 - Tehama County Resource Advisory CommitteePDF
81 FR 15034 - Humboldt County Resource Advisory CommitteePDF
81 FR 14966 - Trade OptionsPDF
81 FR 15035 - Del Norte County Resource Advisory CommitteePDF
81 FR 15147 - Reports, Forms, and Record Keeping RequirementsPDF
81 FR 15150 - Web Automated Reference Material SystemPDF
81 FR 15110 - Change in Bank Control Notices; Acquisitions of Shares of a Bank or Bank Holding CompanyPDF
81 FR 15110 - Notice of Proposals To Engage in or To Acquire Companies Engaged in Permissible Nonbanking ActivitiesPDF
81 FR 15099 - Grand Mesa Pipeline, LLC; Notice of Petition for Declaratory OrderPDF
81 FR 15098 - Tri-State Generation and Transmission Association, Inc.; Notice of Supplement to Petition for Declaratory OrderPDF
81 FR 15064 - Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Port of Kalama Expansion Project on the Lower Columbia RiverPDF
81 FR 15048 - Takes of Marine Mammals Incidental To Specified Activities; Taking Marine Mammals Incidental To Implementation of a Test Pile Program in Anchorage, AlaskaPDF
81 FR 15111 - Proposed Data Collection Submitted for Public Comment and RecommendationsPDF
81 FR 14990 - Airworthiness Directives; Airbus AirplanesPDF
81 FR 15122 - Petroleum Wax Candles From China; Scheduling of an Expedited Five-Year ReviewPDF
81 FR 15089 - Proposed Collection; Comment RequestPDF
81 FR 15123 - Notice Pursuant to the National Cooperative Research and Production Act of 1993-National C4/Cyber Consortium (Formerly National Cyberspace Consortium)PDF
81 FR 15122 - Notice Pursuant to the National Cooperative Research and Production Act of 1993-Open Platform for NFV Project, Inc.PDF
81 FR 15123 - Notice Pursuant to the National Cooperative Research and Production Act of 1993-AllSeen Alliance, Inc.PDF
81 FR 15002 - Update of Existing and Addition of New User FeesPDF
81 FR 14975 - Patient Engagement Advisory CommitteePDF
81 FR 15141 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Amending NYSE Arca Equities Rule 7.33 To Conform the Exchange's Rules to Industry-Wide Standards for Recording the Capacity in Which an ETP Holder Executes a TransactionPDF
81 FR 15124 - United States et al. v. Springleaf Holdings, Inc., et al.; Public Comment and Response on Proposed Final JudgmentPDF
81 FR 15148 - Open Meeting of the Taxpayer Advocacy Panel Taxpayer Communications Project Committee; CorrectionPDF
81 FR 15148 - Open Meeting of the Taxpayer Advocacy Panel Tax Forms and Publications Project Committee; CorrectionPDF
81 FR 15120 - Proposed Renewal of Information Collection: OMB Control Number 1035-0004, Trust Funds for Tribes and Individual Indians, 25 CFR Part 115PDF
81 FR 14947 - Privacy Act of 1974: Implementation of Exemptions; Department of Homeland Security/U.S. Customs and Border Protection-007 Border Crossing Information System of RecordsPDF
81 FR 15135 - Addition of Competitive International Merchandise Return Service Agreements With Foreign Postal Operators 2 to Competitive Product ListPDF
81 FR 15138 - Submission for OMB Review; Comment RequestPDF
81 FR 15139 - Self-Regulatory Organizations; NYSE MKT LLC; Notice of Filing and Immediate Effectiveness of Proposed Change To Amend Its Price List Effective March 1, 2016PDF
81 FR 15136 - Self-Regulatory Organizations; NYSE MKT LLC; Notice of Filing and Immediate Effectiveness of Proposed Change Modifying the NYSE Amex Options Fee SchedulePDF
81 FR 14989 - Fisheries of the Exclusive Economic Zone Off Alaska; Sablefish Managed Under the Individual Fishing Quota ProgramPDF
81 FR 15128 - Agency Information Collection Activities: Proposed eCollection eComments Requested Monitoring Information CollectionsPDF
81 FR 15129 - Agency Information Collection Activities; Proposed eCollection eComments Requested; COPS Application PackagePDF
81 FR 15104 - Information Collection Request Submitted to OMB for Review and Approval; Comment Request; NESHAP for Miscellaneous Organic Chemical Manufacturing (Renewal)PDF
81 FR 15106 - Information Collection Request Submitted to OMB for Review and Approval; Comment Request; State and Federal Emission Guidelines for Hospital/Medical/Infectious Waste Incinerators (Renewal)PDF
81 FR 15063 - Gulf of Mexico Fishery Management Council; Public MeetingPDF
81 FR 15046 - North Pacific Fishery Management Council; Public MeetingPDF
81 FR 15102 - Information Collection Request Submitted to OMB for Review and Approval; Comment Request; Emission Guidelines for Large Municipal Waste Combustors Constructed on or Before September 20, 1994 (Renewal)PDF
81 FR 15103 - Information Collection Request Submitted to OMB for Review and Approval; Comment Request; NESHAP for Portland Cement Plants (Renewal)PDF
81 FR 15145 - Petition for Waiver of CompliancePDF
81 FR 15146 - Petition for Waiver of Compliance and Statutory ExemptionPDF
81 FR 15144 - Petition for Waiver of CompliancePDF
81 FR 15101 - Information Collection Request Submitted to OMB for Review and Approval; Comment Request; NESHAP for Petroleum Refineries (Renewal)PDF
81 FR 15102 - Information Collection Request Submitted to OMB for Review and Approval; Comment Request; NSPS for Ammonium Sulfate Manufacturing Plants (Renewal)PDF
81 FR 15100 - Information Collection Request Submitted to OMB for Review and Approval; Comment Request; TSCA Section 8(a) Preliminary Assessment Information Rule (PAIR)PDF
81 FR 15119 - Endangered and Threatened Wildlife and Plants; Availability of Proposed Low-Effect Habitat Conservation Plan, Lake County, FLPDF
81 FR 15134 - Nuclear Innovation North America LLC; South Texas Project, Units 3 and 4PDF
81 FR 15143 - Louisiana Disaster #LA-00062PDF
81 FR 14995 - Global Nutrition International; Filing of Food Additive Petition (Animal Use)PDF
81 FR 15114 - Eunice Kennedy Shriver National Institute of Child Health and Human Development; Notice of Closed MeetingsPDF
81 FR 15115 - Center for Scientific Review; Notice of Closed MeetingsPDF
81 FR 15114 - Center for Scientific Review; Notice of Closed MeetingsPDF
81 FR 15003 - Magnuson-Stevens Fishery Conservation and Management Act Provisions; Fisheries of the Northeastern United States; Northeast Groundfish Fishery; Framework Adjustment 55PDF
81 FR 14977 - Payment for Physician and Other Health Care Professional Services Purchased by Indian Health Programs and Medical Charges Associated With Non-Hospital-Based CarePDF
81 FR 14998 - Safety Zone; Richland Regatta, Columbia River, Richland, WAPDF

Issue

81 54 Monday, March 21, 2016 Contents Agency Toxic Agency for Toxic Substances and Disease Registry NOTICES Proposed Substances to be Evaluated for Set 30 Toxicological Profiles, 15110-15111 2016-06277 Agriculture Agriculture Department See

Forest Service

Antitrust Division Antitrust Division NOTICES Changes under the National Cooperative Research and Production Act: AllSeen Alliance, Inc., 15123-15124 2016-06242 National C4/Cyber Consortium (Formerly National Cyberspace Consortium), 15123 2016-06244 Open Platform for NFV Project, Inc., 15122-15123 2016-06243 Proposed Final Judgments: United States et al. v. Springleaf Holdings, Inc., et al., 15124-15128 2016-06238 Centers Disease Centers for Disease Control and Prevention NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 15111-15113 2016-06248 Civil Rights Civil Rights Commission NOTICES Meetings: Illinois Advisory Committee, 15036-15038 2016-06291 2016-06292 Indiana Advisory Committee, 15037 2016-06293 Coast Guard Coast Guard RULES Drawbridge Operations: Trent River, New Bern, NC, 14976-14977 2016-06266 PROPOSED RULES Safety Zones: Cocos Lagoon, Merizo, GU, 15000-15002 2016-06294 Hope Chest Buffalo Niagara Dragon Boat Festival, Buffalo River, Buffalo, NY, 14995-14997 2016-06312 Richland Regatta, Columbia River, Richland, WA, 14998-15000 2016-05880 NOTICES Recreational Boating Safety: Strategic Plan of the National Recreational Boating Safety Program 2017-2021, 15115-15116 2016-06303 Commerce Commerce Department See

Industry and Security Bureau

See

International Trade Administration

See

National Oceanic and Atmospheric Administration

Commodity Futures Commodity Futures Trading Commission RULES Trade Options, 14966-14975 2016-06260 Defense Department Defense Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 15089-15090 2016-06245 Education Department Education Department NOTICES Applications for New Awards: Carol M. White Physical Education Program, 15090-15098 2016-06301 Energy Department Energy Department See

Federal Energy Regulatory Commission

Environmental Protection Environmental Protection Agency NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 15105-15108 2016-06314 2016-06315 Agency Information Collection Activities; Proposals, Submissions, and Approvals: Emission Guidelines for Large Municipal Waste Combustors Constructed on or Before September 20, 1994, 15102 2016-06216 NESHAP for Miscellaneous Organic Chemical Manufacturing, Renewal, 15104-15105 2016-06220 NESHAP for Petroleum Refineries (Renewal), 15101-15102 2016-06211 NESHAP for Portland Cement Plants, 15103-15104 2016-06215 NSPS for Ammonium Sulfate Manufacturing Plants (Renewal), 15102-15103 2016-06210 Preliminary Assessment Information Rule, 15100-15101 2016-06209 State and Federal Emission Guidelines for Hospital/Medical/Infectious Waste Incinerators, 15106-15107 2016-06219 National Rivers and Streams Assessment 2008/2009 Final Report; Availability, 15100 2016-06302 Federal Aviation Federal Aviation Administration PROPOSED RULES Airworthiness Directives: Airbus Airplanes, 14990-14995 2016-06247 Federal Communications Federal Communications Commission RULES Structure and Practices of the Video Relay Service Program: Telecommunications Relay Services and Speech-to-Speech Services for Individuals with Hearing and Speech Disabilities, 14984-14986 2016-06305 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 15108-15109 2016-06304 Federal Election Federal Election Commission NOTICES Meetings; Sunshine Act, 2016-06435 15109 2016-06436 Federal Energy Federal Energy Regulatory Commission NOTICES Petitions for Declaratory Orders: Grand Mesa Pipeline, LLC, 15099 2016-06254 LS Power Development, LLC; Cross Texas Transmission, LLC, 15098-15099 2016-06285 Pacific Gas and Electric Co., 15099 2016-06286 Tri-State Generation and Transmission Association, Inc., 15098 2016-06253 Surrender of Preliminary Permits: Advanced Hydropower, Inc., 15099-15100 2016-06287 Federal Maritime Federal Maritime Commission PROPOSED RULES Update of Existing and Addition of New User Fees, 15002-15003 2016-06241 Federal Railroad Federal Railroad Administration NOTICES Petitions for Waivers of Compliance and Statutory Exemptions: Association of American Railroads, 15146-15147 2016-06213 Petitions for Waivers of Compliance: New York, Susquehanna and Western Railway, 15145-15146 2016-06214 San Diego Trolley, Inc., 15144-15145 2016-06212 Federal Reserve Federal Reserve System NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 15109-15110 2016-06278 Changes in Bank Control: Acquisitions of Shares of a Bank or Bank Holding Company, 15110 2016-06256 Proposals to Engage in or to Acquire Companies Engaged in Permissible Nonbanking Activities, 15110 2016-06255 Fish Fish and Wildlife Service NOTICES Endangered and Threatened Wildlife and Plants: Low-Effect Habitat Conservation Plan, Lake County, FL, 15119-15120 2016-06205 Environmental Assessments; Availability, etc.: Oregon Department of Forestry; Proposed Safe Harbor Agreement for the Northern Spotted Owl, 15116-15119 2016-06276 Food and Drug Food and Drug Administration RULES Patient Engagement Advisory Committee, 14975-14976 2016-06240 PROPOSED RULES Food Additive Petitions (Animal Use): Global Nutrition International, 14995 2016-06199 Forest Forest Service NOTICES Meetings: Del Norte County Resource Advisory Committee, 15035 2016-06259 Glenn and Colusa County Resource Advisory Committee, 15034-15035 2016-06264 Humboldt County Resource Advisory Committee, 15034 2016-06262 Tehama County Resource Advisory Committee, 15035-15036 2016-06263 Wenatchee-Okanogan Resource Advisory Committee, 15036 2016-06265 Health and Human Health and Human Services Department See

Agency for Toxic Substances and Disease Registry

See

Centers for Disease Control and Prevention

See

Food and Drug Administration

See

Health Resources and Services Administration

See

Indian Health Service

See

National Institutes of Health

Health Resources Health Resources and Services Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 15113-15114 2016-06318 Homeland Homeland Security Department See

Coast Guard

See

U.S. Customs and Border Protection

See

U.S. Immigration and Customs Enforcement

RULES Flights to and from Cuba, 14948-14953 2016-06371 Privacy Act; Systems of Records: Department of Homeland Security/U.S. Customs and Border Protection-007 Border Crossing Information, 14947-14948 2016-06233
Indian Affairs Indian Affairs Bureau RULES Rights-of-Way on Indian Land, 14976 2016-06269 Indian Health Indian Health Service RULES Payment for Physician and Other Health Care Professional Services Purchased by Indian Health Programs and Medical Charges Associated with Non-Hospital-Based Care, 14977-14984 2016-06087 Industry Industry and Security Bureau RULES Addition and Removal of Certain Persons and Modification to Entries on the Entity List, 14953-14966 2016-06406 Interior Interior Department See

Fish and Wildlife Service

See

Indian Affairs Bureau

See

Land Management Bureau

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Trust Funds for Tribes and Individual Indians, 15120-15121 2016-06235
Internal Revenue Internal Revenue Service NOTICES Meetings: Taxpayer Advocacy Panel Tax Forms and Publications Project Committee; Correction, 15148 2016-06236 Taxpayer Advocacy Panel Taxpayer Communications Project Committee; Correction, 15148-15149 2016-06237 International Trade Adm International Trade Administration NOTICES Antidumping or Countervailing Duty Investigations, Orders, or Reviews: Aluminum Extrusions from the People's Republic of China, 15039-15045 2016-06299 Brass Sheet and Strip from Italy, 15038-15039 2016-06298 Circular Welded Carbon-Quality Steel Pipe from the Sultanate of Oman, Pakistan, the United Arab Emirates, and the Socialist Republic of Vietnam, 15039 2016-06300 International Trade Com International Trade Commission NOTICES Antidumping or Countervailing Duty Investigations, Orders, or Reviews: Petroleum Wax Candles from China, 15122 2016-06246 Justice Department Justice Department See

Antitrust Division

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: COPS Application Package, 15129-15130 2016-06223 Monitoring Information Collections, 15128-15129 2016-06224
Labor Department Labor Department See

Occupational Safety and Health Administration

See

Wage and Hour Division

Land Land Management Bureau NOTICES Meetings: Albuquerque District Resource Advisory Council, New Mexico, 15121-15122 2016-06267 Legal Legal Services Corporation NOTICES Meetings; Sunshine Act, 15133 2016-06394 National Credit National Credit Union Administration NOTICES Meetings; Sunshine Act, 15133 2016-06402 National Highway National Highway Traffic Safety Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 15147-15148 2016-06258 National Institute National Institutes of Health NOTICES Meetings: Center for Scientific Review, 15114-15115 2016-06196 2016-06197 Eunice Kennedy Shriver National Institute of Child Health and Human Development, 15114-15115 2016-06198 National Oceanic National Oceanic and Atmospheric Administration RULES Fisheries of the Economic Exclusive Zone off Alaska: Deep-Water Species Fishery by Vessels Using Trawl Gear in the Gulf of Alaska; Closure, 14988 2016-06295 Fisheries of the Exclusive Economic Zone Off Alaska: Sablefish Managed Under the Individual Fishing Quota Program, 14989 2016-06225 Fisheries of the Northeastern United States: Northeast Multispecies Fishery; Adjustment of Georges Bank and Southern New England/Mid-Atlantic Yellowtail Flounder Annual Catch Limits, 14986-14988 2016-06306 PROPOSED RULES Fisheries of the Northeastern United States: Northeast Groundfish Fishery; Framework Adjustment 55, 15003-15033 2016-06186 NOTICES Meetings: Gulf of Mexico Fishery Management Council, 15063-15064 2016-06218 Mid-Atlantic Fishery Management Council, 15047 2016-06281 New England Fishery Management Council, 15047-15048 2016-06280 North Pacific Fishery Management Council, 15046-15047 2016-06217 Pacific Fishery Management Council, 15045-15046 2016-06282 Takes of Marine Mammals Incidental to Specified Activities: Incidental to Implementation of a Test Pile Program in Anchorage, AK, 15048-15063 2016-06251 Incidental to Port of Kalama Expansion Project on the Lower Columbia River, 15064-15089 2016-06252 Nuclear Regulatory Nuclear Regulatory Commission NOTICES Combined licenses and Record of Decision; Issuance: Nuclear Innovation North America LLC; South Texas Project, Units 3 and 4, 15134-15135 2016-06204 License Amendment Applications: Jefferson Proving Ground; Source Materials License, 15133-15134 2016-06283 Occupational Safety Health Adm Occupational Safety and Health Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Standard on Process Safety Management of Highly Hazardous Chemicals, 15130-15131 2016-06307 Postal Service Postal Service NOTICES Addition of Competitive International Merchandise Return Service Agreements with Foreign Postal Operators 2 to Competitive Product List, 15135 2016-06232 Presidio Presidio Trust NOTICES Meetings: Presidio Institute Advisory Council, 15135 2016-06268 Securities Securities and Exchange Commission NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 15138-15139 2016-06230 Self-Regulatory Organizations; Proposed Rule Changes: NYSE Arca, Inc., 15141-15143 2016-06239 NYSE MKT LLC, 15136-15141 2016-06228 2016-06229 Trading Suspension Orders: Broke Out, Inc., 15143 2016-06365 Small Business Small Business Administration NOTICES Disaster Declarations: Louisiana, 15143 2016-06202 State Department State Department NOTICES Certifications Pursuant to the Department of State, Foreign Operations, and Related Programs Appropriations Act, 15144 2016-06313 2016-06309 2016-06311 Transportation Department Transportation Department See

Federal Aviation Administration

See

Federal Railroad Administration

See

National Highway Traffic Safety Administration

Treasury Treasury Department See

Internal Revenue Service

Customs U.S. Customs and Border Protection RULES Flights to and from Cuba, 14948-14953 2016-06371 Immigration U.S. Immigration and Customs Enforcement NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 15116 2016-06290 Veteran Affairs Veterans Affairs Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Authorization to Disclose Personal Information to a Third Party, 15151 2016-06272 Dependent's Educational Assistance Election Letter, 15149 2016-06270 Designation of Beneficiary, 15151-15152 2016-06274 Request for Determination of Loan Guaranty Eligibility -- Unmarried Surviving Spouses, 15152 2016-06271 Status of Loan Account -- Foreclosure or other Liquidation, 15149-15150 2016-06275 Student Verification of Enrollment, 15150-15151 2016-06273 Web Automated Reference Material System, 15150 2016-06257 Wage Wage and Hour Division NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Labor Standards for Federal Service Contracts, 15131-15133 2016-06308 Reader Aids

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

To subscribe to the Federal Register Table of Contents LISTSERV electronic mailing list, go to http://listserv.access.thefederalregister.org and select Online mailing list archives, FEDREGTOC-L, Join or leave the list (or change settings); then follow the instructions.

81 54 Monday, March 21, 2016 Rules and Regulations DEPARTMENT OF HOMELAND SECURITY Office of the Secretary 6 CFR Part 5 [Docket No. DHS-2016-0016] Privacy Act of 1974: Implementation of Exemptions; Department of Homeland Security/U.S. Customs and Border Protection-007 Border Crossing Information System of Records AGENCY:

Privacy Office, Department of Homeland Security.

ACTION:

Final rule.

SUMMARY:

The Department of Homeland Security (DHS) is issuing a final rule to extend the exemptions from certain provisions of the Privacy Act to the updated and reissued system of records titled, “DHS/U.S. Customs and Border Protection (CBP)-007 Border Crossing Information System of Records.” Specifically, the Department exempts portions of the “DHS/CBP-007 Border Crossing Information System of Records” from one or more provisions of the Privacy Act because of criminal, civil, and administrative enforcement requirements.

DATES:

This final rule is effective March 21, 2016.

FOR FURTHER INFORMATION CONTACT:

For general questions, please contact: John Connors, (202) 344-1610, Privacy Officer, U.S. Customs and Border Protection, Privacy and Diversity Office, 1300 Pennsylvania Avenue NW., Washington, DC 20229. For privacy questions, please contact: Karen L. Neuman, (202) 343-1717, Chief Privacy Officer, Privacy Office, Department of Homeland Security, Washington, DC 20528.

SUPPLEMENTARY INFORMATION: I. Background

The Department of Homeland Security (DHS) U.S. Customs and Border Protection (CBP) published a notice of proposed rulemaking in the Federal Register, 80 FR 79487, Dec. 22, 2015, proposing to exempt portions of the system of records from one or more provisions of the Privacy Act because of criminal, civil, and administrative enforcement requirements. DHS reissued the DHS/CBP-007 Border Crossing Information (BCI) System of Records in the Federal Register on May 11, 2015 (80 FR 26937), to provide notice to the public that DHS/CBP was updating the categories of records to include the capture of certain biometric information and Advance Passenger Information System (APIS) records at the border. This final rule exempts portions of the new categories of records ingested from APIS that are claimed for APIS records pursuant to 5 U.S.C. 552a(j)(2) and 5 U.S.C. 552a(k)(2).

II. Public Comments

DHS received no comments on the NPRM and will implement the rulemaking as proposed.

List of Subjects in 6 CFR Part 5

Freedom of information, Privacy.

For the reasons stated in the preamble, DHS amends chapter I of title 6, Code of Federal Regulations, as follows:

PART 5—DISCLOSURE OF RECORDS AND INFORMATION 1. The authority citation for part 5 continues to read as follows: Authority:

Pub. L. 107-296, 116 Stat. 2135; (6 U.S.C. 101 et seq.); 5 U.S.C. 301. Subpart A also issued under 5 U.S.C. 552. Subpart B also issued under 5 U.S.C. 552a.

2. In appendix C to part 5, revise paragraph 46 to read as follows: Appendix C to Part 5—DHS Systems of Records Exempt From the Privacy Act

46. The DHS/CBP-007 Border Crossing Information System of Records consists of electronic and paper records and will be used by DHS and its Components. The DHS/CBP-007 Border Crossing Information System of Records is a repository of information held by DHS in connection with its several and varied missions and functions including, but not limited to the enforcement of civil and criminal laws; investigations, inquiries, and proceedings thereunder; and law enforcement, border security, and intelligence activities. The DHS/CBP-007 Border Crossing Information System of Records contains information that is collected by, on behalf of, in support of, or in cooperation with DHS and its Components and may contain personally identifiable information collected by other Federal, State, local, tribal, foreign, or international government agencies. At the time of border crossing and during the process of determining admissibility, CBP collects two types of data for which it claims different exemptions.

(a) CBP will not assert any exemption to limit an individual from accessing or amending his or her record with respect to information maintained in the system that is collected from a person at the time of crossing and submitted by that person's air, sea, bus, or rail carriers.

The Privacy Act requires DHS to maintain an accounting of the disclosures made pursuant to all routine uses. Pursuant to 5 U.S.C. 552a(j)(2), CBP will not disclose the fact that a law enforcement or intelligence agency has sought particular records because it may affect ongoing law enforcement activities. The Secretary of Homeland Security has exempted this system from subsections (c)(3), (e)(8), and (g) of the Privacy Act of 1974, as amended, as is necessary and appropriate to protect this information. Further, DHS will claim exemption from subsection (c)(3) of the Privacy Act of 1974, as amended, pursuant to 5 U.S.C. 552a(k)(2) as is necessary and appropriate to protect this information. Exemptions from these particular subsections are justified, on a case-by-case basis to be determined at the time a request is made, for the following reasons:

(i) From subsection (c)(3) (Accounting for Disclosures) because release of the accounting of disclosures could alert the subject of an investigation of an actual or potential criminal, civil, or regulatory violation to the existence of that investigation and reveal investigative interest on the part of DHS as well as the recipient agency. Disclosure of the accounting would therefore present a serious impediment to law enforcement efforts and/or efforts to preserve national security. Disclosure of the accounting would also permit the individual who is the subject of a record to impede the investigation, to tamper with witnesses or evidence, and to avoid detection or apprehension, which would undermine the entire investigative process.

(ii) From subsection (e)(8) (Notice on Individuals) because compliance would interfere with DHS's ability to obtain, serve, and issue subpoenas, warrants, and other law enforcement mechanisms that may be filed under seal and could result in disclosure of investigative techniques, procedures, and evidence.

(iii) From subsection (g) (Civil Remedies) to the extent that the system is exempt from other specific subsections of the Privacy Act.

(b) Additionally, this system contains records or information recompiled from or created from information contained in other systems of records that are exempt from certain provisions of the Privacy Act. For these records or information only, the Secretary of Homeland Security, pursuant to 5 U.S.C. 552a(j)(2), has exempted this system from the following provisions of the Privacy Act: 5 U.S.C. 552a(c)(3), (c)(4); (d)(1)-(4); (e)(1), (e)(2), (e)(3), (e)(4)(G), (e)(4)(H), (e)(4)(I), (e)(5) and (e)(8); (f); and (g). Additionally, the Secretary of Homeland Security, pursuant to 5 U.S.C. 552a(k)(2), has exempted this system from the following provisions of the Privacy Act, 5 U.S.C. 552a(c)(3); (d)(1)-(4); (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I); and (f). Exemptions from these particular subsections are justified, on a case-by-case basis to be determined at the time a request is made, for the following reasons:

(i) From subsection (c)(3) and (c)(4) (Accounting for Disclosures) because release of the accounting of disclosures could alert the subject of an investigation of an actual or potential criminal, civil, or regulatory violation to the existence of that investigation and reveal investigative interest on the part of DHS as well as the recipient agency. Disclosure of the accounting would therefore present a serious impediment to law enforcement efforts and/or efforts to preserve national security. Disclosure of the accounting would also permit the individual who is the subject of a record to impede the investigation, to tamper with witnesses or evidence, and to avoid detection or apprehension, which would undermine the entire investigative process.

(ii) From subsection (d) (Access to Records) because access to the 6records contained in this system of records could inform the subject of an investigation of an actual or potential criminal, civil, or regulatory violation to the existence of that investigation and reveal investigative interest on the part of DHS or another agency. Access to the records could permit the individual who is the subject of a record to impede the investigation, and to avoid detection or apprehension. Amendment of the records could interfere with ongoing investigations and law enforcement activities and would impose an unreasonable administrative burden by requiring investigations to be continually reinvestigated. In addition, permitting access and amendment to such information could disclose security-sensitive information that could be detrimental to homeland security.

(iii) From subsection (e)(1) (Relevancy and Necessity of Information) because in the course of investigations into potential violations of federal law, the accuracy of information obtained or introduced occasionally may be unclear, or the information may not be strictly relevant or necessary to a specific investigation. In the interests of effective law enforcement, it is appropriate to retain all information that may aid in establishing patterns of unlawful activity.

(iv) From subsection (e)(2) (Collection of Information from Individuals) because requiring that information be collected from the subject of an investigation would alert the subject to the nature or existence of the investigation, thereby interfering with that investigation and related law enforcement activities.

(v) From subsection (e)(3) (Notice to Subjects) because providing such detailed information could impede law enforcement by compromising the existence of a confidential investigation or reveal the identity of witnesses or confidential informants.

(vi) From subsections (e)(4)(G), (e)(4)(H), and (e)(4)(I) (Agency Requirements) and (f) (Agency Rules), because portions of this system are exempt from the individual access provisions of subsection (d) for the reasons noted above, and therefore DHS is not required to establish requirements, rules, or procedures with respect to such access. Providing notice to individuals with respect to existence of records pertaining to them in the system of records or otherwise setting up procedures pursuant to which individuals may access and view records pertaining to themselves in the system would undermine investigative efforts and reveal the identities of witnesses, potential witnesses, and confidential informants.

(vii) From subsection (e)(5) (Collection of Information) because with the collection of information for law enforcement purposes, it is impossible to determine in advance what information is accurate, relevant, timely, and complete. Compliance with subsection (e)(5) would preclude DHS agents from using their investigative training and exercise of good judgment to both conduct and report on investigations.

(viii) From subsection (e)(8) (Notice on Individuals) because compliance would interfere with DHS's ability to obtain, serve, and issue subpoenas, warrants, and other law enforcement mechanisms that may be filed under seal and could result in disclosure of investigative techniques, procedures, and evidence.

(ix) From subsection (g) (Civil Remedies) to the extent that the system is exempt from other specific subsections of the Privacy Act.

Dated: March 2, 2016. Karen L. Neuman, Chief Privacy Officer, Department of Homeland Security.
[FR Doc. 2016-06233 Filed 3-18-16; 8:45 am] BILLING CODE 9111-14-P
DEPARTMENT OF HOMELAND SECURITY 8 CFR Part 234 U.S. Customs and Border Protection 19 CFR Part 122 [USCBP-2016-0015; CBP Dec 16-06] RIN 1651-AB10 Flights to and From Cuba AGENCY:

U.S. Customs and Border Protection, DHS.

ACTION:

Interim final rule; request for comments.

SUMMARY:

Current U.S. Customs and Border Protection (CBP) regulations contain a separate subpart O addressing flights to and from Cuba. The provisions in that subpart are either obsolete due to intervening regulatory changes or are duplicative of regulations applicable to all other similarly situated international flights. This rule therefore amends the regulations by removing subpart O. These amendments are consistent with the President's policy promoting the normalization of relations between the United States and Cuba.

DATES:

This interim final rule is effective on March 21, 2016. Comments must be received by April 20, 2016.

ADDRESSES:

You may submit comments, identified by docket number, by one of the following methods:

Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments via docket number USCBP-2016-0015.

Mail: Border Security Regulations Branch, Regulations and Rulings, Office of International Trade, U.S. Customs and Border Protection, 90 K Street NE., 10th Floor, Washington, DC 20229-1177.

Instructions: All submissions received must include the agency name and docket number for this rulemaking. All comments received will be posted without change to http://www.regulations.gov, including any personal information provided.

Docket: For access to the docket to read background documents or comments received, go to http://www.regulations.gov. Comments submitted will be available for public inspection during regular business days between the hours of 9:00 a.m. and 4:30 p.m. at Regulations and Rulings, Office of International Trade, U.S. Customs and Border Protection, 90 K Street NE., 10th Floor, Washington, DC 20229-1177. Arrangements to inspect submitted comments should be made in advance by calling Mr. Joseph Clark at (202) 325-0118.

FOR FURTHER INFORMATION CONTACT:

Arthur A.E. Pitts, Sr., U.S. Customs and Border Protection, Office of Field Operations, by phone at (202) 344-2752 or by email at [email protected]

SUPPLEMENTARY INFORMATION:

Public Participation

Interested persons are invited to participate in this rulemaking by submitting written data, views, or arguments on all aspects of the interim final rule. DHS also invites comments that relate to the economic, environmental, or federalism effects that might result from this interim final rule. Comments that will provide the most assistance to DHS will reference a specific portion of the interim final rule, explain the reason for any recommended change, and include data, information, or authority that support such recommended change.

Background

As part of the President's new approach to Cuba policy, DHS and CBP examined their regulations and policies pertaining to Cuba, particularly as they relate to air travel between the two countries.1 The existing regulations pertaining to flights to and from Cuba (codified at 19 CFR part 122, subpart O) are no longer needed because they are either obsolete in light of intervening regulatory changes or substantively identical to the general CBP requirements applicable to aircraft seeking to fly into or out of the United States. Accordingly, DHS is amending 19 CFR part 122 to remove subpart O and to make conforming amendments to other provisions.

1See Fact Sheet: Charting a New Course on Cuba, The White House (Dec. 17, 2014), https://www.whitehouse.gov/the-press-office/2014/12/17/statement-president-cuba-policy-changes.

Under 19 CFR part 122, subpart O, only certain CBP-approved airports may accept aircraft traveling to or from Cuba. Section 122.153 (19 CFR 122.153) provides a process by which a port authority must submit a written request to CBP requesting that an airport receive approval to accept flights to or from Cuba. Section 122.153 also contains a list of approved airports. The remaining sections in subpart O pertain to other requirements for flights to and from Cuba, including notice of arrival, documents to be presented upon arrival, the release of passengers arriving from Cuba, and documents required for clearance. None of the regulatory requirements that apply specifically to flights to and from Cuba is mandated by statute, but rather are authorized by the broad authority granted to the Secretary of Homeland Security respecting all aircraft arriving in and departing from the United States under 19 U.S.C. 1433, 1644 and 1644a.2

2 Specifically, 19 U.S.C. 1433(c) provides that the pilot of any aircraft arriving in the United States or the U.S. Virgin Islands from any foreign location is required to comply with such advance notification, arrival reporting, and landing requirements as regulations may require. Under 19 U.S.C. 1644 and 1644a, the Secretary can designate ports of entry for aircraft and apply vessel entry and clearance laws and regulations to civil aircraft.

Prior to 2011, only three U.S. airports were authorized to accept flights to and from Cuba: John F. Kennedy International Airport, Los Angeles International Airport, and Miami International Airport. In 2011, the President announced a series of changes to ease certain restrictions on travel to and from Cuba.3 The announcement stated that the regulation should be modified to allow a U.S. airport to apply to accept authorized flights if the airport has adequate customs and immigration capabilities and if an authorized carrier has expressed an interest in providing service between Cuba and the airport.4 In response, DHS issued a final rule in the Federal Register (76 FR 5058) on January 28, 2011, that amended 19 CFR 122.153 to allow additional airports to request approval to accept Cuba flights.

3Reaching Out to the Cuban People, The White House (Jan. 14, 2011), https://www.whitehouse.gov/the-press-office/2011/01/14/reaching-out-cuban-people.

4Id.

On December 17, 2014, the President announced that the United States would begin the process of normalizing relations with Cuba, including taking steps to re-establish diplomatic relations (which occurred on July 20, 2015), adjust regulations to more effectively empower the Cuban people, and facilitate an expansion of authorized travel under general licenses for the twelve existing categories of travel to Cuba authorized by law.5 As part of the President's new approach to relations with Cuba, the Department of the Treasury's Office of Foreign Assets Control (OFAC), and the Department of Commerce's Bureau of Industry and Security (BIS) have issued five sets of amendments to the Cuban Assets Control Regulations (CACR) and Export Administration Regulations (EAR), respectively.6 In February 2016, representatives from the Departments of State and Transportation signed an arrangement with Cuba that provides the basis for the restoration of scheduled air services between the United States and Cuba.7

5Fact Sheet: Charting a New Course on Cuba, The White House (Dec. 17, 2014), https://www.whitehouse.gov/the-press-office/2014/12/17/fact-sheet-charting-new-course-cuba.

6See 81 FR 13989 (Mar. 16, 2016), 81 FR 4583 (Jan. 27, 2016), 80 FR 56915 (Sept. 21, 2015), 80 FR 34053 (June 15, 2015), and 80 FR 2291 (Jan. 16, 2015) (amending the CACR); 81 FR 13972 (Mar. 16, 2016), 81 FR 4580 (Jan. 27, 2016), 80 FR 56898 (Sept. 21, 2015), 80 FR 43314 (July 22, 2015), and 80 FR 2286 (Jan. 16, 2015) (amending the EAR).

7United States, Cuba Sign Arrangement Restoring Scheduled Air Service, U.S. Dep't of Transp. (Feb. 16, 2016), https://www.transportation.gov/briefing-room/united-states-cuba-sign-arrangement-restoring-scheduled-air-service.

In light of these intervening regulatory changes, the regulations specifically addressing flights to and from Cuba in 19 CFR part 122, subpart O are no longer necessary. Accordingly, DHS is removing that subpart. DHS is also making conforming amendments to certain provisions in titles 8 and 19 of the CFR: 8 CFR 234.2, 19 CFR 122.31, and 19 CFR 122.42. The removal of part 122, subpart O, will make clear that flights to and from Cuba are subject to the same entry and clearance requirements in 19 CFR part 122 as all other similarly situated international flights.

Removal of 19 CFR Part 122, Subpart O

Part 122, subpart O, of title 19 CFR, consists of eight sections numbered from 122.151 to 122.158 (19 CFR 122.151-122.158). A description of each section follows, along with an explanation as to why it is no longer necessary, desirable, or consistent with the U.S. government's current approach towards Cuba.

Section 122.151 (19 CFR 122.151) consists of two definitions, one for the “United States” and one for “Cuba,” which apply within subpart O. The definition for the “United States” is duplicative of the one in 19 CFR 122.1(l), and is therefore unnecessary. “Cuba” is not defined in 19 CFR 122.1, but this definition is also unnecessary in light of the removal of the special regulations governing flights to and from Cuba.

Section 122.152 (19 CFR 122.152), regarding the application of subpart O, provides that the subpart applies to all aircraft entering or departing the United States to or from Cuba, except for public aircraft. As explained below, the other sections in subpart O are unnecessary, so there is no longer a need for this section.

Section 122.153 (19 CFR 122.153) covers the limitation on airports of entry and departure for flights to and from Cuba. Under this section, flights to or from Cuba are limited to the Miami International Airport, John F. Kennedy International Airport, Los Angeles International Airport, or any other airport approved by CBP according to the procedures in paragraph (b). Paragraph (b) of § 122.153 outlines the approval process, which allows an international airport, landing rights airport, or user fee airport to request CBP approval to become an airport of entry and departure for aircraft traveling to and from Cuba. Under this process, CBP would determine whether the airport is properly equipped to facilitate passport control and baggage inspection and whether there is an OFAC licensed carrier that is prepared to provide flights between the airport and Cuba. Approved airports are listed on the CBP Web site and in updates to a list of approved airports in paragraph (c) of § 122.153.

The limitations regarding airports authorized to provide flights to and from Cuba are not required by statute. The regulation, now codified at 19 CFR 122.153, was originally promulgated in 1980 and appeared at 19 CFR 6.3a. The preamble for the Federal Register document implementing the regulation stated that “[b]ecause of the present situation involving aliens attempting to reach the U.S. from Cuba, there is serious reason to believe that unsafe and unlawful means of transportation will be utilized.” 8 As to the authority underlying the new limits, the preamble stated the rule was being undertaken in accordance with regulations propounded by the Federal Aviation Administration (14 CFR 91.101), the Immigration and Naturalization Service (8 CFR parts 231 and 239), and the Department of Commerce (15 CFR 371.19). None of these authorities limits the number of airports that can service flights to or from Cuba or requires an application process to qualify airports to service Cuban flights in particular.

8 45 FR 29247 (May 1, 1980).

DHS has determined that the approval process set forth in § 122.153(b) is no longer necessary because the criteria for obtaining approval to accept flights to and from Cuba are not materially different than the requirements applicable to all other similarly situated airports and aircraft operators seeking to conduct international flights. In evaluating requests by aircraft for permission to land at an international, landing rights or user fee airport, CBP researches and evaluates the impact on the overall operations at a given airport regardless of its classification. CBP also evaluates, in consultation with the airport authority where appropriate, the ability of the proposed airport to handle the flight, travelers, baggage, and cargo. CBP ensures that each airport for which a new international flight is requested is equipped to facilitate passport control and baggage inspection, and has the appropriate infrastructure to properly service the plane from the runway to its assigned gate.9

9 Certain aircraft arriving from areas south of the United States are subject to a modified process. Such flights are subject to specific notice of arrival requirements and must land at the airport listed under 19 CFR 122.24(b) that is nearest the point at which the aircraft crosses the border, unless an overflight exemption is granted. See 19 CFR 122.23-122.25. In designating the airports listed in 19 CFR 122.24(b), CBP has determined that these airports have adequate facilities and resources available to inspect and process aircraft subject to the regulation and their attendant crew, passengers, and cargo. If an exemption is sought pursuant to 19 CFR 122.25, CBP considers whether the proposed destination airport has adequate resources to handle the flight, travelers, baggage, and cargo, just as it considers these factors when deciding whether to grant permission to land a new international flight that is not subject to 19 CFR 122.24. This modified process does not apply to (1) public aircraft, (2) aircraft operated on a regularly published schedule, pursuant to a certificate of public convenience and necessity or foreign aircraft permit issued by the Department of Transportation, authorizing interstate, overseas air transportation; or (3) aircraft with a seating capacity of more than 30 passengers or a maximum payload capacity of more than 7,500 pounds which are engaged in air transportation for compensation or hire on demand. See 19 CFR 122.23(a). With the removal of 19 CFR part 122, subpart O, the requirements in 19 CFR 122.23-122.25 would apply to flights to and from Cuba that fall within the scope of those regulations.

The requirement in § 122.153 that the requesting airport must have an OFAC-licensed carrier service provider that is prepared to provide flights between the airport and Cuba is obsolete. OFAC no longer requires an air carrier to obtain a specific license to provide carrier services to or from Cuba. Rather, an air carrier may fly to or from Cuba pursuant to a general license under the CACR, so long as the air carrier is providing carrier services in connection with travel or transportation of persons, baggage, or cargo that is itself authorized under the CACR, 31 CFR part 515, and is no longer required to obtain a specific license from OFAC.10 See 31 CFR 515.317 and 515.572(a).

10 According to OFAC, “A general license authorizes persons subject to U.S. jurisdiction to provide carrier services by vessel or aircraft to, from, or within Cuba, in connection with authorized travel, without the need for a specific license.” Frequently Asked Questions Related to Cuba, U.S. Department of Treasury (last updated Mar. 15, 2016), https://www.treasury.gov/resource-center/sanctions/Programs/Documents/cuba_faqs_new.pdf. See also 31 CFR 501.801(a) (“General licenses have been issued authorizing under appropriate terms and conditions certain types of transactions which are subject to the prohibitions contained in this chapter.”).

Accordingly, by eliminating § 122.153, CBP will make clear that it follows the same process in certifying flights to and from Cuba as it does with all international flights. Aircraft operators will be required to follow the usual procedures for international flights found in governing law, including the regulations in 19 CFR part 122, subpart B, for obtaining permission to land and to secure new international routes. The specific requirements vary depending on whether the airport is an international airport, a landing rights airport, or a user fee airport. See 19 CFR 122.11-122.13 (international airports); 122.14 (landing rights airports); 122.15 (user fee airports).

Section 122.154 (19 CFR 122.154) sets forth notice of arrival requirements. This section provides that all aircraft entering the United States from Cuba (except for OFAC-approved scheduled commercial aircraft of a scheduled airline) must give advance notice of arrival, not less than one hour before crossing the U.S. coast or border. The notice must provide the type of aircraft; name of the aircraft commander; number of U.S. citizen and alien passengers; place of last foreign departure; estimated time of crossing the border; and estimated time of arrival. Section 122.154 is being removed as it is redundant with other provisions within part 122. Generally, all inbound aircraft (not just those arriving from Cuba) are required to provide notice to CBP prior to arriving in the United States. Section 122.22 (19 CFR 122.22) generally requires all private aircraft pilots to transmit notice of arrival and manifest information to CBP at least 60 minutes prior to departure of the aircraft from the foreign port or place.11 The data required under § 122.22 includes the data required under § 122.154. Section 122.23 (19 CFR 122.23) requires similar notice of arrival information for certain non-public aircraft arriving from locations south of the United States. Section 122.31 (19 CFR 122.31) requires advance notice of arrival from all other aircraft, with the exception of aircraft of a scheduled airline arriving under a regular schedule. In addition, 19 CFR 122.49a, 122.49b, 122.49c, and 8 CFR 231.1(a) require commercial carriers to transmit electronic manifest information for all passengers and crew.

11 If the United States is not the original destination and the flight is diverted to the United States due to an emergency, the information is required no later than 30 minutes prior to arrival. 19 CFR 122.22(b)(2)(ii).

Section 122.155 (19 CFR 122.155) requires the aircraft commander of a flight arriving from Cuba to present to CBP the manifest required by 8 CFR 231.1(b),12 and the documents required by subpart E of 19 CFR part 122, upon arrival in the United States. As § 122.155 merely cross-references subpart E of 19 CFR part 122 and 8 CFR 231.1(b), the information referred to in this section is already required of all aircraft that are subject to the cited provisions. Furthermore, 19 CFR 122.22 imposes electronic manifest requirements on private aircraft that are commensurate with the electronic manifest requirements for commercial aircraft contained in subpart E.

12 While 19 CFR 122.155 refers to the manifest required by 8 CFR 231.1(b), § 231.1(b) actually requires the submission of a properly completed Arrival/Departure Record, Form I-94 for each arriving passenger, with certain exceptions; § 231.1(a) requires the submission of an electronic manifest.

Section 122.156 (19 CFR 122.156) concerns the release of passengers and aircraft. This section provides that neither passengers arriving from Cuba, nor the aircraft, will be released by Customs before the passengers are released by the Immigration and Naturalization Service or a Customs officer acting on behalf of that agency. This section is outdated due to the reorganization in 2002 which prompted the creation of CBP, in which customs and immigration functions were consolidated.13 Moreover, the requirement that all arriving persons report to a Customs officer and that all aliens seeking admission undergo immigration inspection is set forth in various provisions in the United States Code and titles 19 and 8 of the CFR.14 Clearance of aircraft departing the United States is covered generally in 19 CFR part 122, subparts F, G, H and I.

13 Pursuant to the Homeland Security Act of 2002, Public Law 107-296, 116 Stat. 2135 (HSA), as of March 1, 2003, the legacy Immigration and Naturalization Service (INS) of the Department of Justice and the legacy Customs Service of the Department of the Treasury were transferred to DHS and reorganized to become CBP, U.S. Immigration and Customs Enforcement (ICE), and U.S. Citizenship and Immigration Services (USCIS). All inspectional functions previously assigned to legacy INS were transferred to DHS. As provided in 6 U.S.C. 552(d), references relating to an agency that is transferred to DHS in statutes, executive orders, rules, regulations, directives, or delegations of authority that precede the effective date of the HSA are deemed to refer to DHS, its officers, employees, or agents, or to its corresponding organizational units or functions.

14See, e.g., 19 U.S.C. 1459(b) and (d) (requiring all individuals arriving aboard a reported conveyance to report to the designated customs facility and prohibiting departure from the facility until authorized to do so by the appropriate customs officer); 8 U.S.C. 235(a) (requiring all aliens who are applicants for admission or otherwise seeking admission or readmission to the United States to undergo an immigration inspection); 8 CFR 235.1(a) (requiring application to lawfully enter the United States to be made in person to an immigration officer at a U.S. port-of-entry); and 8 CFR 234.2(c) (prohibiting aircraft carrying passengers or crew required to be inspected from discharging or permitting to depart any passenger or crewman without permission from an immigration officer).

Section 122.157 (19 CFR 122.157) sets forth the documents that are required to clear an aircraft for departure. Under this section, the aircraft commander must present documents required by subpart H and a license issued by the Department of Commerce under 15 CFR 371.19 or by the Department of State under 22 CFR part 123. This section is outdated and is no longer necessary. First, 15 CFR 371.19 no longer exists. Under the current regulations, flights on a “temporary sojourn” to or from Cuba generally qualify for a license exception under the EAR provided they meet certain conditions, which are administered by BIS. In general, flying an aircraft to Cuba, even temporarily, constitutes an export or re-export to Cuba.15 However, the governing EAR provision authorizes departure from the United States of foreign registry civil aircraft on temporary sojourn in the United States and of U.S. civil aircraft for temporary sojourn abroad.16 Thus, if the aircraft departing the United States for Cuba meets the “temporary sojourn” definition to qualify for the license exception, there is no license requirement imposed on such aircraft. Second, clearance requirements for all international flights are currently covered under 19 CFR part 122, subparts C, F, G and H. 22 CFR part 123, which pertains to the importation or exportation of certain defense articles, contains other potential requirements for clearance. These requirements, however, are not specific to flights to and from Cuba and would apply regardless of the removal of 19 CFR part 122, subpart O.

15Cuba, Bureau of Industry and Security, https://www.bis.doc.gov/index.php/policy-guidance/country-guidance/sanctioned-destinations/cuba (last accessed Feb. 24, 2016); see also 15 CFR 746.2(a) (requiring a license to export or re-export all items subject to the EAR to Cuba, except as provided in the regulation).

16 15 CFR 740.15. Former 15 CFR 371.19, which is referenced in 19 CFR 122.157, described general licensing requirements for aircraft on a temporary sojourn to or from the United States, reflecting a prior regulatory regime that relied on general licenses, rather than license exceptions. See 61 FR 12714, 12778 (Mar. 25, 1996) (interim rule replacing general license requirement with license exceptions).

Section 122.158 (19 CFR 122.158) states that all other provisions of part 122 relating to entry and clearance of aircraft are applicable to aircraft subject to subpart O. This section is duplicative of 19 CFR 122.0(a), which provides that the regulations in part 122 relate to the entry and clearance of aircraft and the transportation of persons and cargo by aircraft, and are applicable to all air commerce.

For the reasons discussed above, DHS has determined that 19 CFR part 122, subpart O is no longer necessary to regulate air travel to and from Cuba due to changes in the regulatory requirements governing travel and trade between the United States and Cuba, and the implementation of robust reporting requirements that apply to international flights generally. Therefore, DHS is amending 19 CFR part 122 to remove 19 CFR part 122, subpart O, pertaining to flights to and from Cuba. Flights to and from Cuba will continue to be subject to the remaining entry and clearance requirements in 19 CFR part 122, as well as all other legal requirements relating to travel and trade between the United States and Cuba including, but not limited to, the CACR and the EAR.

Conforming Amendments

DHS is amending various sections in title 8 CFR and title 19 CFR to bring these sections into conformity with the removal of 19 CFR part 122, subpart O. These amendments are described below.

Section 234.2 of title 8 (8 CFR 234.2) sets forth landing requirements for aircraft carrying passengers or crew required to be inspected under the Immigration and Nationality Act. Section 234.2(a) specifies the general requirements regarding the place of landing for such aircraft and also includes a special requirement for flights to and from Cuba. Specifically, the last sentence in § 234.2(a) specifies that aircraft carrying passengers or crew required to be inspected on flights originating in Cuba land only at airports that have been authorized by CBP pursuant to 19 CFR 122.153 as an airport of entry for flights arriving from Cuba, unless advance permission to land elsewhere has been obtained from the Office of Field Operations at CBP Headquarters. DHS is amending § 234.2(a) to remove the last sentence.

Section 122.31 of title 19 (19 CFR 122.31) sets forth notice of arrival requirements for aircraft entering the United States from a foreign area. Paragraph (c)(1)(ii) specifies that aircraft arriving from Cuba must follow the advance notice of arrival procedures set forth in § 122.154 in part 122, subpart O. Paragraph (c)(1)(iii) specifies that certain aircraft arriving from areas south of the United States (other than Cuba) must follow the notice of arrival procedures set forth in § 122.23 in part 122. As a result of removing subpart O, flights arriving from Cuba will now give advance notice of arrival in accordance with the other provisions in 19 CFR part 122. Accordingly, DHS is removing paragraph (c)(1)(ii) from § 122.31 and making other conforming amendments to paragraph (c)(1).

Section 122.42 of title 19 (19 CFR 122.42) sets forth certain aircraft entry requirements. Paragraph (d) provides that an aircraft of a scheduled airline which stops only for refueling at the first place or arrival in the United States shall not be required to enter provided it meets certain conditions, except for flights to Cuba (provided for in subpart O of this part). To conform with the removal of subpart O, DHS is removing this exception language from paragraph (d) of § 122.42.

Additional Requirements for Aircraft Traveling to or From Cuba

All aircraft entering/departing the United States from/to Cuba must be properly licensed or otherwise authorized to travel between the United States and Cuba. Several federal agencies administer the necessary authorizations, and it is the responsibility of the owner or person in command of the aircraft to ensure that the aircraft has the necessary authorization to travel.

OFAC administers the CACR, 31 CFR part 515, which prohibit, in relevant part, all persons subject to the jurisdiction of the United States from engaging in travel-related transactions involving Cuba unless authorized by OFAC. As mentioned before, air carriers are authorized to provide service to and from Cuba under a “general license” so long as the air carrier complies with the terms and conditions of the general license.

BIS administers the EAR, 15 CFR parts 730 through 774, which prohibit certain exports and re-exports to Cuba unless authorized by a license or license exception. As discussed above, flying an aircraft to Cuba constitutes an export or re-export under the EAR, but certain flights on a “temporary sojourn” qualify for a license exception. An aircraft that fails to qualify for the “temporary sojourn” license exception under 15 CFR 740.15 may require an individually validated license under the EAR in order to depart the United States for Cuba. Baggage and cargo onboard the aircraft may also require a license if it does not qualify for a license exception under the EAR.

Additionally, an aircraft traveling between the United States and Cuba may require a license from other federal agencies, as applicable, and must obtain economic and safety authorizations to provide air transportation service as an air carrier from the Office of the Secretary of Transportation and the Federal Aviation Administration. Air carriers and other commercial operators are required to adopt and implement the security requirements established by the Transportation Security Administration for individuals, property, and cargo aboard aircraft (see 49 CFR chapter XII, subchapter C (Civil Aviation Security)).

Inapplicability of Notice and Delayed Effective Date Requirements, the Regulatory Flexibility Act, and Executive Order 12866

The Administrative Procedure Act (APA) requirements in 5 U.S.C. 553 govern agency rulemaking procedures. The APA generally requires that an agency provide prior notice and an opportunity for public comment before issuing a final rule.17 The APA also requires that a final rule have a 30-day delayed effective date.18 The APA provides a full exemption from the requirements of section 553 for rules involving a foreign affairs function of the United States.19 The APA also provides an exception from the prior notice and public comment requirement and the delayed effective date requirement if the agency for good cause finds that such procedures are impracticable, unnecessary or contrary to the public interest.20

17 5 U.S.C. 553(b) and (c).

18 5 U.S.C. 553(d).

19 5 U.S.C. 553(a)(1).

20 5 U.S.C. 553(b)(B) and 553(d)(3).

This interim final rule is excluded from the rulemaking provisions of 5 U.S.C. 553 as a foreign affairs function of the United States because it concerns international flights between the United States and Cuba, consistent with U.S. foreign policy goals. These amendments to clarify and simplify the regulations regarding air travel between the United States and Cuba are consistent with the President's continued effort to normalize relations between the two countries.

Accordingly, DHS is not required to provide public notice and an opportunity to comment before implementing the requirements under this interim final rule.

In addition, with respect to the removal of the regulations in 19 CFR part 122, subpart O, that are duplicative of the entry and clearance requirements in the rest of part 122, DHS finds that good cause exists for dispensing with the prior notice and comment procedure as unnecessary under 5 U.S.C. 553(b)(B) and for dispensing with the requirement for a delayed effective date under 5 U.S.C. 553(d)(3). The Department, however, is interested in public comments on this interim final rule and, therefore, is providing the public with the opportunity to comment without delaying implementation of this rule. All comments received will become a matter of the public record.

In addition, DHS does not consider this rule to be a “significant regulatory action” under Executive Order 12866, section 3(f), Regulatory Planning and Review. Rules involving the foreign affairs function of the United States are exempt from the requirements of Executive Order 12866. As discussed above, DHS is of the opinion that clarifying and simplifying the regulations regarding restrictions on travel between the United States and Cuba is a foreign affairs function of the United States Government and as such, this rule is exempt from the requirements of Executive Order 12866. Finally, because DHS is of the opinion that this rule is not subject to the requirements of 5 U.S.C. 553, DHS does not consider this rule to be subject to the provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).

Signing Authority

This interim final rule is being issued in accordance with 8 CFR 2.1 and 19 CFR 0.2(a). Accordingly, this interim final rule is signed by the Secretary of Homeland Security.

List of Subjects 8 CFR Part 234

Air carriers, Aircraft, Airports, Aliens, Cuba.

19 CFR Part 122

Administrative practice and procedure, Air carriers, Aircraft, Airports, Alcohol and alcoholic beverages, Cigars and cigarettes, Cuba, Customs duties and inspection, Drug traffic control, Freight, Penalties, Reporting and recordkeeping requirements, Security measures.

Amendments to the Regulations

For the reason stated in the preamble, 8 CFR part 234 and 19 CFR part 122 are amended as set forth below.

8 CFR Chapter 1 PART 234—DESIGNATION OF PORTS OF ENTRY FOR ALIENS ARRIVING BY CIVIL AIRCRAFT 1. The general authority for part 234 continues to read as follows: Authority:

8 U.S.C. 1103, 1221, 1229; 8 CFR part 2.

§ 234.2 [Amended]
2. Amend § 234.2 by removing the last sentence of paragraph (a).
19 CFR Chapter 1 PART 122—AIR COMMERCE REGULATIONS 3. The authority citation for part 122 continues to read in part as follows: Authority:

5 U.S.C. 301; 19 U.S.C. 58b, 66, 1431, 1433, 1436, 1448, 1459, 1590, 1594, 1623, 1624, 1644, 1644a, 2071 note.

§ 122.31 [Amended]
4. Amend § 122.31 as follows: a. Remove and reserve paragraph (c)(1)(ii); b. In paragraph (c)(1)(iii), remove the text “(other than Cuba)”; and c. In paragraph (c)(1)(iv), remove the text “, (c)(1)(ii)”.
5. Amend § 122.42 by revising the introductory sentence of paragraph (d) to read as follows:
§ 122.42 Aircraft entry.

(d) Exception to entry requirement. An aircraft of a scheduled airline which stops only for refueling at the first place of arrival in the United States will not be required to enter provided:

Subpart O [Removed and Reserved] 6. Remove and reserve subpart O, consisting of §§ 122.151 through 122.158. Jeh Johnson, Secretary.
[FR Doc. 2016-06371 Filed 3-18-16; 8:45 am] BILLING CODE 9111-14-P
DEPARTMENT OF COMMERCE Bureau of Industry and Security 15 CFR Part 744 [Docket No. 160229152-6152-01] RIN 0694-AG87 Addition of Certain Persons and Modification to Entries on the Entity List; and Removal of Certain Persons From the Entity List AGENCY:

Bureau of Industry and Security, Commerce.

ACTION:

Final rule.

SUMMARY:

This rule amends the Export Administration Regulations (EAR) by adding forty-four persons under forty-nine entries to the Entity List. The forty-four persons who are added to the Entity List have been determined by the U.S. Government to be acting contrary to the national security or foreign policy interests of the United States. These forty-four persons will be listed on the Entity List under the destinations of China, Germany, Hong Kong, India, Iran, Malaysia, the Netherlands, Singapore, Switzerland, and the United Arab Emirates (U.A.E.).

This final rule also removes five entities from the Entity List under the destinations of Ukraine and the U.A.E., as the result of requests for removal received by BIS, a review of information provided in the removal requests in accordance with the procedure for requesting removal or modification of an Entity List entity and further review conducted by the End-User Review Committee (ERC).

Finally, this final rule modifies two existing entries in the Entity List, both under the destination of China. These entries are being modified to reflect additional aliases and addresses for these persons. BIS implements this rule to protect U.S. national security or foreign policy interests and to ensure entries on the Entity List are accurate and up-to-date.

DATES:

This rule is effective March 21, 2016.

FOR FURTHER INFORMATION CONTACT:

Chair, End-User Review Committee, Office of the Assistant Secretary, Export Administration, Bureau of Industry and Security, Department of Commerce, Phone: (202) 482-5991, Fax: (202) 482-3911, Email: [email protected]

SUPPLEMENTARY INFORMATION: Background

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

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

ERC Entity List Decisions Additions to the Entity List

This rule implements the decision of the ERC to add forty-four persons under forty-nine entries to the Entity List. These forty-four persons are being added on the basis of § 744.11 (License requirements that apply to entities acting contrary to the national security or foreign policy interests of the United States) of the EAR. The forty-nine entries added to the entity list consist of eight entries in China, four entries in Germany, three entries in Hong Kong, one entry in India, two entries in Iran, five entries in Malaysia, two entries in the Netherlands, one entry in Singapore, one entry in Switzerland and twenty-two entries in the U.A.E. There are forty-nine entries for the forty-four persons because four persons are listed in multiple locations, resulting in five additional entries.

The ERC reviewed § 744.11(b) (Criteria for revising the Entity List) in making the determination to add these forty-four persons under forty-nine entries to the Entity List. Under that paragraph, persons for whom there is reasonable cause to believe, based on specific and articulable facts, that they have been involved, are involved, or pose a significant risk of being or becoming involved in, activities that are contrary to the national security or foreign policy interests of the United States and those acting on behalf of such persons may be added to the Entity List. Paragraphs (b)(1) through (5) of § 744.11 include an illustrative list of activities that could be contrary to the national security or foreign policy interests of the United States. Pursuant to § 744.11 of the EAR, the ERC determined that forty-four persons, located in the destinations of China, Germany, Hong Kong, India, Iran, Malaysia, Netherlands, Singapore, Switzerland, and the U.A.E., be added to the Entity List for actions contrary to the national security or foreign policy interests of the United States.

Specifically, the ERC determined that Frank Genin, Skylinks FZC, All Industrial International, Beaumont Trading AG, Behover General Trading/Information Technologies, Complete Freight Solutions, Cybernet MEA, Innovative Technology Solutions, Joinus Freight Systems HK Ltd, Syarikat Penghantaran TWW Sdn Bhd, Teofila Logistics, Amanda Sng, Beverly Apigo, Rose Ann Apigo, Hamideh Ghayour, Kapil Raj Arora, Mehdi Jafariyeh, T.V. Joe Ouseppachan, and Donna Lynn Ocampo be added to the Entity List on the basis of their attempts to procure items, including U.S.-origin items, for activities contrary to the national security and foreign policy interests of the United States. Specifically, Frank Genin used the aforementioned companies and employees thereof to supply U.S.-origin items to an Iranian party associated with the Iranian defense industry. Additionally, two Skylinks managing directors, Seyed Amin Ghorashi Sarvestani and Peyman Manoucher Azimi were convicted in the United States in 2013 for International Emergency Economic Powers Act (IEEPA) violations carried out through Skylinks and its parent company, Innovative Technology Systems (ITS). Three of these entities (Beaumont Trading AG, Frank Genin, and Skylinks FZC) are located in multiple locations, resulting in a total of twenty-three entries added under the destinations of Hong Kong, India, Malaysia, the Netherlands, Singapore, Switzerland, and the U.A.E.

The ERC determined that Industrio GmbH, Peter Duenker, Martin Hess and Wilhelm “Bill” Holler attempted to procure items, including U.S.-origin items, for activities contrary to the national security and foreign policy interests of the United States. Specifically, Industrio GmbH and its associates have been involved in supplying U.S.-origin items to an Iranian party associated with the Iranian defense industry. The Iranian party's customers include companies designated by the Department of the Treasury as Specially Designated Nationals (SDNs).

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

In addition, the ERC determined that that there is reasonable cause to believe, based on specific and articulable facts, that Mahmood Akbari; Reza Hajigholamali; Patco Group Ltd.; Managed Systems and Services (MSAS)(FZC); and TGO General Trading LLC were involved in the illegal diversion of U.S.-origin items to Iran via the U.A.E. One of these persons (Reza Hajigholamali) is located in both Iran and the U.A.E., resulting in six entries added under the locations of Iran and the U.A.E. The ERC also determined that for eight entities located in China—Jereh International; Jinan Tongbaolai Oilfield Equipment Co. Ltd.; Yantai Jereh Oilfield Services Group Co., Ltd.; Chen Qu; Edward Fan; Gala Wang; Sharon Yang; and Tan Wei—there is reasonable cause to believe, based on specific and articulable facts, that they unlawfully diverted U.S.-origin oilfield equipment to Iran without the required Department of the Treasury, Office of Foreign Assets Control (OFAC) licenses, actions that violate the EAR.

Pursuant to § 744.11(b)(2) of the EAR, the ERC determined that the conduct of these thirteen entities raises sufficient concern that prior review of exports, reexports or transfers (in-country) of items subject to the EAR involving these persons, and the possible imposition of license conditions or license denials on shipments to the persons, will enhance BIS's ability to prevent violations of the EAR. Therefore, these thirteen entities are being added to the Entity List.

The ERC determined that four entities, EEZ SDN, Mohamad Sadeghi, Mohsen Torabi, and Muhamad Fazil bin Khalid, be added to the Entity List under Malaysia. These persons are involved, or have previously been involved, in an illicit procurement scheme to divert items subject to the EAR to prohibited end uses and end users in Iran. The actions of these persons have supported persons engaged in acts of terror and enhanced the military capability of Iran, which has been designated by the Secretary of State as a State Sponsor of Terrorism.

Pursuant to § 744.11(b)(1), (2) and (5) of the EAR, the ERC determined that the conduct of these four entities raises sufficient concern that prior review of exports, reexports or transfers (in-country) of items subject to the EAR involving these persons, and the possible imposition of license conditions or license denials on shipments to the persons, will enhance BIS's ability to prevent violations of the EAR.

Finally, the ERC determined that four entities located in the U.A.E., AdCom Systems, Advanced Targeting Systems Company, LLC (ATS), Gulf Eagle Contracting (GEC), and Gulf Eagle Industrial and Metal Profiles (GEIMP), be added to the Entity List. AdCom Systems and its three affiliated companies are seeking to export Missile Technology Control Regime (MTCR) Category I unmanned aerial vehicles (UAVs) to non-MTCR member countries. All Category I systems are inherently capable of delivering weapons of mass destruction, and the proliferation of such systems by AdCom and its affiliates undermines the international missile nonproliferation objectives that the United States relies on to promote its national security and foreign policy interests.

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

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

This final rule adds the following forty-four persons under forty-nine entries to the Entity List:

China

(1) Chen Qu, a.k.a., the following one alias: Chen Choo, No. 5, Jereh Road, Laishan District, Yantai Shandong Province, China;

(2) Edward Fan, No. 5, Jereh Road, Laishan District, Yantai Shandong Province, China;

(3) Gala Wang, Room 2506, Hengchang Building, No. 288, Hing Si Road, Jinan City, Shandong, China;

(4) Jereh International, No. 5, Jereh Road, Laishan District, Yantai Shandong Province, China;

(5) Jinan Tongbaolai Oilfield Equipment Co. Ltd., Room 2506, Hengchang Building, No. 288, Hing Si Road, Jinan City, Shandong, China;

(6) Sharon Yang, No. 5, Jereh Road, Laishan District, Yantai Shandong Province, China;

(7) Tan Wei, a.k.a., the following one alias: Terry Tan. No. 5, Jereh Road, Laishan District, Yantai Shandong Province, China; and

(8) Yantai Jereh Oilfield Services Group Co., Ltd., No. 5, Jereh Road, Laishan District, Yantai Shandong Province, China.

Germany

(1) Industrio GmbH, Dreichlinger Street 79, Neumarkt, 92318 Germany;

(2) Martin Hess, Dreichlinger Street 79, Neumarkt, 92318 Germany;

(3) Peter Duenker, a.k.a., the following one alias: Peter Dunker, Dreichlinger Street 79, Neumarkt, 92318 Germany; and

(4) Wilhelm “Bill” Holler, Dreichlinger Street 79, Neumarkt, 92318 Germany.

Hong Kong

(1) Frank Genin, a.k.a., the following one alias: Franck Genin, RM 1905, 19/F, Nam Wo Hong Bldg., 148 Wing Lok Street, Sheung Wang, Hong Kong (See alternate addresses under U.A.E.);

(2) Joinus Freight Systems HK Ltd, a.k.a., the following one alias: JFS Global Logistics, Unit 07-07, 25F, Tower B, Regent Centre, 63 Wo Yi Hop Road, Kwai Chung, N.T. Hong Kong; and Suite 801-803, Park Sun Bldg, 97-107 Wo Yi Hop Road, Kwai Chung, Hong Kong; and

(3) Skylinks FZC, a.k.a., the following two aliases: Skylinks; and Skylinks Satellite Comm., RM 1905, 19/F, Nam Wo Hong Bldg., 148 Wing Lok Street, Sheung Wang, Hong Kong (See alternate addresses under U.A.E.).

India

(1) Beaumont Trading AG, a.k.a., the following one alias: Beaumont Tradex India, 412 World Trade Center, Conaught Place, New Delhi—110001, India; and 4th Floor Statesman House Building, Barakhamba Road, New Delhi 11001, India; and Express Towers, 1st Floor, Express Building, 9-10 Bahadurshah Zafar Marg, New Delhi-12, India (See alternate addresses under Switzerland and U.A.E.).

Iran

(1) Mahmood Akbari, a.k.a., the following alias: John Wassermann, No.34, Arash Blvd., Farid Afshar St., Zafar Ave., Tehran, Iran; and

(2) Reza Hajigholamali, No.34, Arash Blvd., Farid Afshar St., Zafar Ave., Tehran, Iran (See alternate addresses under U.A.E.).

Malaysia

(1) EEZ SDN, a.k.a., the following one alias: Elecronic Engineering Zone SDN BHD, 33-88 Menara Keck Seng, 203 Jalan Bukit Bintang, Kuala Lumpur, Malaysia; and A-17-8 Tower A, Menara Atlas, Plaza Pantai 5, Jalan 4/83A, off Jalan Pantai Baru, Kuala Lumpur, Malaysia; and B-3A-7 Empire Subang, Jalan SS16/1, Subang Jaya, Malaysia;

(2) Mohamad Sadeghi, 33-88 Menara Keck Seng, 203 Jalan Bukit Bintang, Kuala Lumpur, Malaysia; and A-17-8 Tower A, Menara Atlas, Plaza Pantai 5, Jalan 4/83A, off Jalan Pantai Baru, Kuala Lumpur, Malaysia;

(3) Mohsen Torabi, a.k.a., the following one alias: Moha Torab, 2nd Floor, Jalan 9A, Berangan, Kuala Lumpur, Malaysia; and 33-88 Menara Keck Seng, 203 Jalan Bukit Bintang, Kuala Lumpur, Malaysia; and A-17-8 Tower A, Menara Atlas, Plaza Pantai 5, Jalan 4/83A, off Jalan Pantai Baru, Kuala Lumpur, Malaysia;

(4) Muhamad Fazil bin Khalid, 33-88 Menara Keck Seng, 203 Jalan Bukit Bintang, Kuala Lumpur, Malaysia; and A-17-8 Tower A, Menara Atlas, Plaza Pantai 5, Jalan 4/83A, off Jalan Pantai Baru, Kuala Lumpur, Malaysia; and No. 2 Jalan 29C, Selayang Baru, Batu Caves, Selangor, Malaysia; and

(5) Syarikat Penghantaran TWW Sdn Bhd, Lot C-7, Block C Mas Advance Cargo Centre KLIA Cargo Village Southern Support Zone 64000, Sepang Selangor Darul Ehsan, Malaysia.

Netherlands

(1) All Industrial International, Knobbelswaansingel 19, 2496 LN, The Hague, Netherlands; and Breukelensestraat 44, 2574 RC, The Hague, Netherlands; and

(2) Kapil Raj Arora, Breukelensestraat 44, 2574 RC, The Hague, Netherlands; and Knobbelswaansingel 19, 2496 LN, The Hague, Netherlands.

Singapore

(1) Amanda Sng, 211 Henderson Road, #13-02 Henderson Industrial Park, Singapore 159552.

Switzerland

(1) Beaumont Trading AG, a.k.a., the following one alias: Beaumont Tradex India, Haldenstrasse 5, Baar (Zug Canton), CH 6342 Switzerland (See alternate addresses in India and the U.A.E.).

United Arab Emirates

(1) AdCom Systems, Industrial City of Abu Dhabi—ICAD, Abu Dhabi, U.A.E.;

(2) Advanced Targeting Systems Company, LLC (ATS), P.O. Box 34237, High Specialized Economical Zone M41, 103A13, Al Mussafah, Abu Dhabi, U.A.E.;

(3) Beaumont Trading AG, a.k.a., the following one alias: Beaumont Tradex India, DMCC Business Center, 49 Almas Tower—JLT Dubai, U.A.E. (See alternate addresses in India and Switzerland);

(4) Behover General Trading/Information Technologies, a.k.a., the following one alias: DBA Behover Information Technologies, P.O. Box 25756, Atrium Center Building, Burdubai, Dubai, U.A.E.; and Unit M3&4, Atrium Centre, Bank Street Dubai, U.A.E.; and P.O. Box 19741, Dubai, U.A.E.; and Unit 2009, Prism Tower, Business Bay, Dubai, U.A.E.; and P.O. Box 115904, Dubai, U.A.E.;

(5) Beverly Apigo, P.O. Box 28515, Dubai, U.A.E.; and 202 B Sama Tower Sheikh Tayed Road #3 Dubai, U.A.E. P.O. Box 16048; and BC2-414, RAK Free Trade Zone, P.O. Box 16048, Ras Al Khaimah, U.A.E.; and G1/RAK Free Trade Zone RAK—U.A.E.; and G-17 Sheikh Tayed Road #3, Ras Al Khaimah Free Trade Zone, Dubai, U.A.E.; and P.O. Box 10559 Ras Al Khaimah, U.A.E.; and P.O. Box 25344 Bur Dubai, Dubai, U.A.E.; and Suite 608 Atrium Center, Bank St., Bur Dubai, Dubai, U.A.E., P.O. Box 16048; and Suite 706 Atrium Center Bank Street, Bur Dubai, Dubai U.A.E.;

(6) Complete Freight Solutions, 704 The Atrium Ctr, Khalid Bin, Dubai, U.A.E.; and 1st Floor, Office No. 114, Yousef Al Otaiba Bldg, Above Emirates Islamic Bank Office, 2nd December Street (Old Al Dyafah Street), P.O. Box No. 29687, Satwa, Dubai, U.A.E.;

(7) Cybernet MEA, 202 B Sama Tower Sheikh Tayed Road #3, Dubai, U.A.E., P.O. Box 16048; and BC2-414, RAK Free Trade Zone, P.O. Box 16048 Ras Al Khaimah, U.A.E.; and G1/RAK Free Trade Zone RAK—U.A.E.; and G-17 Sheikh Tayed Road #3, Ras Al Khaimah Free Trade Zone, Dubai, U.A.E.; and No. 608 Atrium Center Bank Street, Dubai, U.A.E.; and P.O. Box 10559 Ras Al Khaimah, U.A.E.; and P.O. Box 116911 Dubai, U.A.E.; and P.O. Box 25344 Bur Dubai, Dubai, U.A.E.; and Suite 608 Atrium Center Bank Street, Bur Dubai, Dubai, U.A.E.; and Suite 706 Atrium Center Bank Street, Bur Dubai, Dubai U.A.E.;

(8) Donna Lynn Ocampo, P.O. Box 28515, Dubai, U.A.E.; and 202 B Sama Tower Sheikh Tayed Road #3 Dubai, U.A.E., P.O. Box 16048; and BC2-414, RAK Free Trade Zone P.O. Box 16048 Ras Al Khaimah, U.A.E.; and G1/RAK Free Trade Zone RAK—U.A.E.; and G-17 Sheikh Tayed Road #3 Ras Al Khaimah Free Trade Zone Dubai, U.A.E.; and P.O. Box 10559 Ras Al Khaimah, U.A.E.; and P.O. Box 25344 Bur Dubai, Dubai, U.A.E.; and Suite 608 Atrium Center, Bank St., Bur Dubai, Dubai, U.A.E. P.O. Box 16048; and Suite 706 Atrium Center Bank Street Bur Dubai, Dubai, U.A.E.;

(9) Frank Genin, a.k.a., the following one alias: Franck Genin, Villa No. 6 AL WASL RD, 332/45b Jumeira 1, Dubai, Dubai 25344, U.A.E.; and Suite 608 Atrium Center, Bank St., Bur Dubai, Dubai, U.A.E., P.O. Box 16048; and Suite 706 Atrium Center Bank Street Bur Dubai, Dubai U.A.E.; and P.O. Box 10559 Ras Al Khaimah, U.A.E.; and P.O. Box 25344 Bur Dubai, Dubai, U.A.E.; and 2nd Floor, #202 Sheik Zayed Road Dubai POB 25344 U.A.E.; and P.O. Box 28515, Dubai, U.A.E.; and 202 B Sama Tower Sheikh Tayed Road #3 Dubai, U.A.E. P.O.Box 16048; and BC2-414, RAK Free Trade Zone P.O. Box 16048 Ras Al Khaimah, U.A.E.; and G1/RAK Free Trade Zone RAK—U.A.E.; and G-17 Sheikh Tayed Road #3 Ras Al Khaimah Free Trade Zone, Dubai, U.A.E. (See alternate address under Hong Kong);

(10) Gulf Eagle Contracting (GEC), P.O. Box 31814, Al Dhafra Road, Abu Dhabi, U.A.E.;

(11) Gulf Eagle Industrial and Metal Profiles (GEIMP), P.O. Box 31814, Al Mussafah Industrial City, New Airport Road, Abu Dhabi, U.A.E.;

(12) Hamideh Ghayour, P.O. Box 155904, Dubai, U.A.E.; and Unit M3&4, Atrium Centre, Bank Street Dubai, U.A.E.;

(13) Innovative Technology Systems (ITS), 2nd Floor, #202 Sheik Zayed Road Dubai, POB 25344, U.A.E.; and Suite 608 Atrium Center, Bank Street, Bur Dubai, Dubai, U.A.E.; and Suite 706 Atrium Center Bank Street, Bur Dubai, Dubai, U.A.E.;

(14) Managed Systems and Services (MSAS)(FZC), No. A3089 Seif Sharjah U.A.E.; and SAIF Zone 250 M2 Warehouse P60-109, PO Box 122550, Sharjah, U.A.E.;

(15) Mehdi Jafariyeh, a.k.a., the following one alias: Mehdi Jeffery, P.O. Box 28515, Dubai, U.A.E.; and 202 B Sama Tower Sheikh Tayed Road #3 Dubai, U.A.E., P.O. Box 16048; and BC2-414, RAK Free Trade Zone P.O. Box 16048 Ras Al Khaimah, U.A.E.; and G 1/RAK Free Trade Zone RAK—U.A.E.; and G-17 Sheikh Tayed Road #3 Ras Al Khaimah Free Trade Zone, Dubai, U.A.E. and P.O. Box 10559 Ras Al Khaimah, U.A.E.; and P.O. Box 25344 Bur Dubai, Dubai, U.A.E.; and Suite 608 Atrium Center, Bank St., Bur Dubai, Dubai, U.A.E., P.O. Box 16048; and Suite 706 Atrium Center Bank Street Bur Dubai, Dubai, U.A.E.;

(16) Patco Group Ltd., P.O. Box 20470, Ajman, U.A.E.; and Ajman Free Zone Bldg., 48-Block-C Meena Road near Ajman Sea Port, Ajman, U.A.E.;

(17) Reza Hajigholamali, PO Box 20470, Ajman, U.A.E.; and Ajman Free Zone Bldg., 48-Block-C Meena Road near Ajman Sea Port, Ajman, U.A.E. (See alternate address under Iran);

(18) Rose Ann Apigo, P.O. Box 28515, Dubai, U.A.E.; and 202 B Sama Tower Sheikh Tayed Road #3 Dubai, U.A.E., P.O. Box 16048; and BC2-414, RAK Free Trade Zone P.O. Box 16048 Ras Al Khaimah, U.A.E.; and G1/RAK Free Trade Zone RAK—U.A.E.; and G-17 Sheikh Tayed Road #3 Ras Al Khaimah Free Trade Zone, Dubai, U.A.E.; and P.O. Box 10559 Ras Al Khaimah, U.A.E.; and P.O. Box 25344 Bur Dubai, Dubai, U.A.E.; and Suite 608 Atrium Center, Bank St., Bur Dubai, Dubai, U.A.E., P.O. Box 16048; and Suite 706 Atrium Center Bank Street, Bur Dubai, Dubai U.A.E.;

(19) Skylinks FZC, a.k.a., the following two aliases: Skylinks; and Skylinks Satellite Comm., P.O. Box 28515, Dubai, U.A.E.; and 202 B Sama Tower Sheikh Tayed Road #3 Dubai, U.A.E., P.O. Box 16048; and BC2-414, RAK Free Trade Zone P.O. Box 16048 Ras Al Khaimah, U.A.E.; and G1/RAK Free Trade Zone RAK—U.A.E.; and G-17 Sheikh Tayed Road #3 Ras Al Khaimah Free Trade Zone, Dubai, U.A.E.; and P.O. Box 10559 Ras Al Khaimah, U.A.E.; and P.O. Box 25344 Bur Dubai, Dubai, U.A.E.; and Suite 608 Atrium Center, Bank St., Bur Dubai, Dubai, U.A.E., P.O. Box 16048; and Suite 706 Atrium Center Bank Street, Bur Dubai, Dubai U.A.E. 3 (See alternate address under Hong Kong);

(20) T.V. Joe Ouseppachan, Office 228, Al Aatar Shopping Mall, P.O. Box 115824, Karama, Dubai, U.A.E.;

(21) Teofila Logistics, Office 228, Al Aatar Shopping Mall, P.O. Box 115824, Karama, Dubai, U.A.E.; and

(22) TGO General Trading LLC, a.k.a., the following one alias: Three Green Orbit, 19th Floor Festival Tower, Festival City, PO Box 36605, Dubai, U.A.E.

Removals From the Entity List

This rule implements decisions of the ERC to remove the following five entries from the entity list based on removal requests received by the BIS: Ukrspetsexport, located in the Ukraine; and Zener One Net, Zener Marine, Ivan Desouza, and Girish Purushothama, all located in the U.A.E.

Pursuant to § 744.11(b)(5) of the EAR, Ukrspetsexport was found to have exported military equipment to a country on the State Department's State Sponsors of Terrorism List and was subsequently added to the Entity List on March 28, 2013 (78 FR 18811). The ERC's decision to remove this entry from the Entity List was based on information received by the BIS and further review conducted by the ERC.

Zener One Net, Zener Marine, Ivan Desouza, and Girish Purushotham were added to the Entity List on June 5, 2014 (79 FR 32441), pursuant to § 744.11(b)(1) of the EAR. The removal of Zener One Net, Zener Marine, Ivan Desouza, and Girish Purushotham is based on the information provided in their appeal request, information provided by the companies and persons in cooperative exchanges, and further reviews conducted by the ERC.

In accordance with § 744.16(c), the Deputy Assistant Secretary for Export Administration has sent written notifications informing these persons of the ERC's decisions to remove them from the Entity List.

This final rule implements the decision to remove the following five entities located in the Ukraine and the U.A.E. from the Entity List.

Ukraine

(1) Ukrspetsexport, 36 Degtiarivska Blvd., Ukraine 04119 Kyiv.

United Arab Emirates

(1) Girish Purushothama, P.O. Box 389, Dubai, U.A.E.; and P.O. Box 3905, Abu Dhabi, U.A.E.; and Plot S20206, Dubai, U.A.E.;

(2) Ivan Desouza, a.k.a., the following one alias: Ivan D'Souza, P.O. Box 389, Dubai, U.A.E.; and P.O. Box 3905, Abu Dhabi, U.A.E.; and Plot S20206, Dubai, U.A.E.;

(3) Zener Marine, P.O. Box 389, Dubai, U.A.E.; and Al Quoz Warehouse, Dubai, U.A.E.; and

(4) Zener One Net, P.O. Box 389, Dubai, U.A.E.

The removal of the five persons referenced above, which was approved by the ERC, eliminates the existing license requirements in Supplement No. 4 to part 744 for exports, reexports and transfers (in-country) to these entities. However, the removal of these five persons from the Entity List does not relieve persons of other obligations under part 744 of the EAR or under other parts of the EAR. Neither the removal of an entity from the Entity List nor the removal of Entity List-based license requirements relieves persons of their obligations under General Prohibition 5 in § 736.2(b)(5) of the EAR which provides that, “you may not, without a license, knowingly export or reexport any item subject to the EAR to an end-user or end-use that is prohibited by part 744 of the EAR.” Additionally, these removals do not relieve persons of their obligation to apply for export, reexport or in-country transfer licenses required by other provisions of the EAR. BIS strongly urges the use of Supplement No. 3 to part 732 of the EAR, “BIS's `Know Your Customer' Guidance and Red Flags,” when persons are involved in transactions that are subject to the EAR.

Modifications to the Entity List

This final rule implements the decision of the ERC to modify two existing entries on the Entity List, under the destination of China. The ERC made determinations to make the following modifications: Add one alias and three additional addresses to the entry of Chengdu GaStone Technology Co., Ltd. (CGTC) and add four aliases and nine additional addresses to the entry of PRC Lode Technology Company.

This final rule makes the following modifications to two entries on the Entity list:

China

(1) Chengdu GaStone Technology Co., Ltd. (CGTC), a.k.a., the following one alias: Chengdu Jiashi Technology Co., 31F, A Tower, Yanlord Square, No. 1, Section 2, Renmind South Road, Chengdu China; and Internet of Things Industrial Park Economic Development District Xinan Hangkonggang (Southwest Airport), Shuangliu County, Chengdu; and 29th Floor, Yanlord Landmark, No. 1 Renmin South Road Section 2, Chengdu; and 29/F Yanlord Landmark Tower A, Chengdu, China; and

(2) PRC Lode Technology Company, a.k.a., the following the following four aliases: Lode Technology Company; Beijing Lode Technology Company, Ltd.; Beijing Nuodian Keji Youxian Gongsi; and Beijing Nuodian Technology. Room 8306 Kelun Building, 12A Guanghua Road, Chaoyang, Beijing 100020, China; and Room 801, Unit 1, Building 8 Caiman Street, Chaoyang Road, Beijing 100025, China; and Building 1-1, No. 67 Caiman Str., Chaoyang Road, Beijing 100123, China; and Room A407 Kelun Building, 12A Guanghua Road, Chaoyang, Beijing 100020, China; and Rm 602, 5/F, No. 106 NanHu Road, ChaoYang District, Beijing, China; and Suite 801, Unit 1, Building 8 Caiman Street Finance & Economics Center, Chaoyang Road, Chaoyang Disrict, Beijing; and Suite 306, Lianhua Building No. 159 Tianzhou Road, Xuhui District, Shanghai 200233; and Suite 6B3, Building 15, No. 300 Tianlin Road, Xuhui District, Shanghai 200233; and Suite 1901, Unit 1, Block 8, District E, Ziwei Garden City, Chang'an Technological Garden, Xi'an, 710119; and Suite 2002, Unit 4, Building 1 Zhongda Junyue Jinsha Phase 3 No. 15 Jinxiang Road, Qingyang District, Chengdu, 610031; and Suite 1506, Building 4, Dachengxiaoshi, No. 10 Qingjiang Zhong Road, Qingyang District, Chengdu, 610072; and Suite 904, Building A6, Shunfeng Emerald Garden, No. 168 Zhaofeng Road, Shijing, Baiyun District, Guangzhou, 510410; and No. 1263 Airport Road, Baiyun District, Guangzhou; and Suite 201, Tower A, Building 14, Qianxihe Garden Center, Nanchang, 330002 (See alternate addresses under Hong Kong).

Savings Clause

Shipments of items removed from eligibility for a License Exception or export or reexport without a license (NLR) as a result of this regulatory action that were en route aboard a carrier to a port of export or reexport, on March 21, 2016, pursuant to actual orders for export or reexport to a foreign destination, may proceed to that destination under the previous eligibility for a License Exception or export or reexport without a license (NLR).

Export Administration Act

Although the Export Administration Act expired on August 20, 2001, the President, through Executive Order 13222 of August 17, 2001, 3 CFR, 2001 Comp., p. 783 (2002), as amended by Executive Order 13637 of March 8, 2013, 78 FR 16129 (March 13, 2013) and as extended by the Notice of August 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 determined to be not significant for purposes of Executive Order 12866.

2. Notwithstanding any other provision of law, no person is required to respond to nor be subject to a penalty for failure to comply with a collection of information, subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) (PRA), unless that collection of information displays a currently valid Office of Management and Budget (OMB) Control Number. This regulation involves collections previously approved by OMB under control number 0694-0088, Simplified Network Application Processing System, which includes, among other things, license applications and carries a burden estimate of 43.8 minutes for a manual or electronic submission.

Total burden hours associated with the PRA and OMB control number 0694-0088 are not expected to increase as a result of this rule. You may send comments regarding the collection of information associated with this rule, including suggestions for reducing the burden, to Jasmeet K. Seehra, Office of Management and Budget (OMB), by email to [email protected], or by fax to (202) 395-7285.

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

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

5. For the five entries removed from the Entity List in this final rule, pursuant to the Administrative Procedure Act (APA), 5 U.S.C. 553(b)(B), BIS finds good cause to waive requirements that this rule be subject to notice and the opportunity for public comment because it would be contrary to the public interest.

In determining whether to grant removal requests from the Entity List, a committee of U.S. Government agencies (the End-User Review Committee (ERC)) evaluates information about and commitments made by listed persons requesting removal from the Entity List, the nature and terms of which are set forth in 15 CFR part 744, Supplement No. 5, as noted in 15 CFR 744.16(b). The information, commitments, and criteria for this extensive review were all established through the notice of proposed rulemaking and public comment process (72 FR 31005 (June 5, 2007) (proposed rule), and 73 FR 49311 (August 21, 2008) (final rule)). These five removals have been made within the established regulatory framework of the Entity List. If the rule were to be delayed to allow for public comment, U.S. exporters may face unnecessary economic losses as they turn away potential sales to the other entity removed by this rule because the customer remained a listed person on the Entity List even after the ERC approved the removal pursuant to the rule published at 73 FR 49311 on August 21, 2008. By publishing without prior notice and comment, BIS allows the applicant to receive U.S. exports immediately since the applicant already has received approval by the ERC pursuant to 15 CFR part 744, Supplement No. 5, as noted in 15 CFR 744.16(b).

The removals from the Entity List granted by the ERC involve interagency deliberation and result from review of public and non-public sources, including sensitive law enforcement information and classified information, and the measurement of such information against the Entity List removal criteria. This information is extensively reviewed according to the criteria for evaluating removal requests from the Entity List, as set out in 15 CFR part 744, Supplement No. 5 and 15 CFR 744.16(b). For reasons of national security, BIS is not at liberty to provide to the public detailed information on which the ERC relied to make the decisions to remove these five entities. In addition, the information included in the removal request is information exchanged between the applicant and the ERC, which by law (section 12(c) of the Export Administration Act), BIS is restricted from sharing with the public. Moreover, removal requests from the Entity List contain confidential business information, which is necessary for the extensive review conducted by the U.S. Government in assessing such removal requests.

Section 553(d) of the APA generally provides that rules may not take effect earlier than thirty (30) days after they are published in the Federal Register. BIS finds good cause to waive the 30-day delay in effectiveness under 5 U.S.C. 553(d)(1) because this rule is a substantive rule which relieves a restriction. This rule's removal of five persons under five entries from the Entity List removes a requirement (the Entity-List-based license requirement and limitation on use of license exceptions) on these five persons being removed from the Entity List. The rule does not impose a requirement on any other person for these five removals from the Entity List.

No other law requires that a notice of proposed rulemaking and an opportunity for public comment be given for this final rule. Because a notice of proposed rulemaking and an opportunity for public comment are not required under the APA or by any other law, the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) are not applicable. As a result, no final regulatory flexibility analysis is required and none has been prepared.

List of Subjects in 15 CFR Part 744

Exports, Reporting and recordkeeping requirements, Terrorism.

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

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

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

2. Supplement No. 4 to part 744 is amended: a. By adding under China, People's Republic of, in alphabetical order, eight Chinese entities; b. By revising under China, People's Republic of, two Chinese entities, “Chengdu GaStone Technology Co., Ltd. (CGTC)” and “PRC Lode Technology Company”; c. By adding under Germany, in alphabetical order, four German entities; d. By adding under Hong Kong, in alphabetical order, three Hong Kong entities; e. By adding under India, in alphabetical order, one Indian entity; f. By adding under Iran, in alphabetical order, two Iranian entities; g. By adding under Malaysia, in alphabetical order, five Malaysian entities; h. By adding in alphabetical order, an entry for the Netherlands and two Dutch entities; i. By adding under Singapore, in alphabetical order, one Singaporean entity; j. By adding under Switzerland, in alphabetical order, one Swiss entity; k. By removing under the Ukraine, one Ukrainian entity, “Ukrspetexport”; l. By adding under United Arab Emirates, in alphabetical order, twenty-two Emirati entities; and m. By removing under United Arab Emirates, four Emirati entities, “Girish Purushothama”; “Ivan Desouza”; “Zener Marine”; and “Zener One Net”.

The additions and revisions read as follows:

Supplement No. 4 to Part 744—Entity List Country Entity License requirement License
  • review policy
  • Federal Register citation
    *         *         *         *         *         *         * China, People's Republic of  *         *         *         *         *         * Chengdu GaStone Technology Co., Ltd. (CGTC), a.k.a., the following one alias:
  • —Chengdu Jiashi Technology Co.
  • 31F, A Tower, Yanlord Square, No. 1, Section 2, Renmind South Road, Chengdu China; and Internet of Things Industrial Park Economic Development District Xinan Hangkonggang (Southwest Airport), Shuangliu County, Chengdu; and 29th Floor, Yanlord Landmark, No. 1 Renmin South Road Section 2, Chengdu; and 29/F Yanlord Landmark Tower A, Chengdu, China.
  • For all items subject to the EAR. (See § 744.11 of the EAR). Presumption of denial 79 FR 44683, 8/1/14.
  • 81 FR [INSERT FR PAGE NUMBER], 3/21/16.
  •  *         *         *         *         *         * Chen Qu, a.k.a., the following one alias:
  • —Chen Choo.
  • No. 5, Jereh Road, Laishan District, Yantai Shandong Province, China.
  • For all items subject to the EAR. (See § 744.11 of the EAR). Presumption of denial 81 FR [INSERT FR PAGE NUMBER], 3/21/16.
     *         *         *         *         *         * Edward Fan, No. 5, Jereh Road, Laishan District, Yantai Shandong Province, China. For all items subject to the EAR. (See § 744.11 of the EAR). Presumption of denial 81 FR [INSERT FR PAGE NUMBER], 3/21/16.  *         *         *         *         *         * Gala Wang, Room 2506, Hengchang Building, No. 288, Hing Si Road, Jinan City, Shandong, China. For all items subject to the EAR. (See § 744.11 of the EAR). Presumption of denial 81 FR [INSERT FR PAGE NUMBER], 3/21/16.  *         *         *         *         *         * Jereh International, No. 5, Jereh Road, Laishan District, Yantai Shandong Province, China. For all items subject to the EAR. (See § 744.11 of the EAR). Presumption of denial 81 FR [INSERT FR PAGE NUMBER], 3/21/16.  *         *         *         *         *         * Jinan Tongbaolai Oilfield Equipment Co. Ltd, Room 2506, Hengchang Building, No. 288, Hing Si Road, Jinan City, Shandong, China. For all items subject to the EAR. (See § 744.11 of the EAR). Presumption of denial 81 FR [INSERT FR PAGE NUMBER], 3/21/16.  *         *         *         *         *         * PRC Lode Technology Company, a.k.a., the following four aliases:
  • —Lode Technology Company;
  • —Beijing Lode Technology Company, Ltd.;
  • —Beijing Nuodian Keji Youxian Gongsi; and
  • For all items subject to the EAR. (See § 744.11 of the EAR). Presumption of denial 79 FR 44683, 8/1/14.
  • 81 FR [INSERT FR PAGE NUMBER], 3/21/16.
  • —Beijing Nuodian Technology. Room 8306 Kelun Building, 12A Guanghua Road, Chaoyang, Beijing 100020, China; and Room 801, Unit 1, Building 8 Caiman Street, Chaoyang Road, Beijing 100025, China; and Building 1-1, No. 67 Caiman Str., Chaoyang Road, Beijing 100123, China; and Room A407 Kelun Building, 12A Guanghua Road, Chaoyang, Beijing 100020, China; and Rm 602, 5/F, No. 106 NanHu Road, ChaoYang District, Beijing, China; and Suite 801, Unit 1, Building 8 Caiman Street Finance & Economics Center, Chaoyang Road, Chaoyang District, Beijing; and Suite 306, Lianhua Building No. 159 Tianzhou Road, Xuhui District, Shanghai 200233; and Suite 6B3, Building 15, No. 300 Tianlin Road, Xuhui District, Shanghai 200233; and Suite 1901, Unit 1, Block 8, District E, Ziwei Garden City, Chang'an Technological Garden, Xi'an, 710119; and Suite 2002, Unit 4, Building 1 Zhongda Junyue Jinsha Phase 3 No. 15 Jinxiang Road, Qingyang District, Chengdu, 610031; Suite 1506, Building 4, Dachengxiaoshi, No. 10 Qingjiang Zhong Road, Qingyang District, Chengdu 610072; and Suite 904, Building A6, Shunfeng Emerald Garden, No. 168 Zhaofeng Road, Shijing, Baiyun District, Guangzhou, 510410; and No. 1263 Airport Road, Baiyun District, Guangzhou; and Suite 201, Tower A, Building 14, Qianxihe Garden Center, Nanchang, 330002 (See alternate addresses under Hong Kong).  *         *         *         *         *         * Sharon Yang, No. 5, Jereh Road, Laishan District, Yantai Shandong Province, China. For all items subject to the EAR. (See § 744.11 of the EAR). Presumption of denial 81 FR [INSERT FR PAGE NUMBER], 3/21/16.  *         *         *         *         *         * TanWei, a.k.a., the following one alias:
  • —Terry Tan.
  • No. 5, Jereh Road, Laishan District, Yantai Shandong Province, China.
  • For all items subject to the EAR. (See § 744.11 of the EAR). Presumption of denial 81 FR [INSERT FR PAGE NUMBER], 3/21/16.
     *         *         *         *         *         * Yantai Jereh Oilfield Services Group Co., Ltd., No. 5, Jereh Road, Laishan District, Yantai Shandong Province, China. For all items subject to the EAR. (See § 744.11 of the EAR). Presumption of denial 81 FR [INSERT FR PAGE NUMBER], 3/21/16. *         *         *         *         *         *         * Germany  *         *         *         *         *         * Industrio GmbH, Dreichlinger Street 79, Neumarkt, 92318 Germany. For all items subject to the EAR. (See § 744.11 of the EAR). Presumption of denial 81 FR [INSERT FR PAGE NUMBER], 3/21/16.  *         *         *         *         *         * Martin Hess, Dreichlinger Street 79, Neumarkt, 92318 Germany. For all items subject to the EAR. (See § 744.11 of the EAR). Presumption of denial 81 FR [INSERT FR PAGE NUMBER], 3/21/16.  *         *         *         *         *         * Peter Duenker a.k.a., the following alias:
  • —Peter Dunker. Dreichlinger Street 79, Neumarkt, 92318 Germany.
  • For all items subject to the EAR. (See § 744.11 of the EAR). Presumption of denial 81 FR [INSERT FR PAGE NUMBER], 3/21/16.
     *         *         *         *         *         * Wilhelm “Bill” Holler, Dreichlinger Street 79, Neumarkt, 92318 Germany. For all items subject to the EAR. (See § 744.11 of the EAR). Presumption of denial 81 FR [INSERT FR PAGE NUMBER], 3/21/16. *         *         *         *         *         *         * Hong Kong  *         *         *         *         *         * Frank Genin, a.k.a., the following one alias:
  • —Franck Genin.
  • RM 1905, 19/F, Nam Wo Hong Bldg., 148 Wing Lok Street, Sheung Wang, Hong Kong (See alternate addresses under U.A.E.).
  • For all items subject to the EAR. (See § 744.11 of the EAR). Presumption of denial 81 FR [INSERT FR PAGE NUMBER], 3/21/16.
     *         *         *         *         *         * Joinus Freight Systems HK Ltd, a.k.a., the following one alias:
  • —JFS Global Logistics.
  • Unit 07-07, 25F, Tower B, Regent Centre, 63 Wo Yi Hop Road, Kwai Chung, N.T. Hong Kong; and Suite 801-803, Park Sun Bldg, 97-107 Wo Yi Hop Road, Kwai Chung, Hong Kong.
  • For all items subject to the EAR. (See § 744.11 of the EAR). Presumption of denial 81 FR [INSERT FR PAGE NUMBER], 3/21/16.
     *         *         *         *         *         * Skylinks FZC, a.k.a., the following two aliases:
  • —Skylinks; and
  • —Skylinks Satellite Comm.
  • RM 1905, 19/F, Nam Wo Hong Bldg., 148 Wing Lok Street, Sheung Wang, Hong Kong (See alternate addresses under U.A.E.).
  • For all items subject to the EAR. (See § 744.11 of the EAR). Presumption of denial 81 FR [INSERT FR PAGE NUMBER], 3/21/16.
    *         *         *         *         *         *         * India  *         *         *         *         *         * Beaumont Trading AG, a.k.a., the following one alias:
  • —Beaumont Tradex India.
  • 412 World Trade Center, Conaught Place, New Delhi—110001, India; and 4th Floor Statesman House Building, Barakhamba Road, New Delhi 11001, India; and Express Towers, 1st Floor, Express Building, 9-10 Bahadurshah Zafar Marg, New Delhi-12, India (See alternate addresses under Switzerland and U.A.E.).
  • For all items subject to the EAR. (See § 744.11 of the EAR). Presumption of denial 81 FR [INSERT FR PAGE NUMBER], 3/21/16.
    *         *         *         *         *         *         * Iran  *         *         *         *         *         * Mahmood Akbari, a.k.a., the following alias:
  • —John Wassermann.
  • No. 34, Arash Blvd., Farid Afshar St., Zafar Ave., Tehran, Iran.
  • For all items subject to the EAR. (See § 744.11 of the EAR). Presumption of denial 81 FR [INSERT FR PAGE NUMBER], 3/21/16.
     *         *         *         *         *         * Reza Hajigholamali, No. 34, Arash Blvd., Farid Afshar St., Zafar Ave., Tehran, Iran (See alternate addresses under U.A.E.). For all items subject to the EAR. (See § 744.11 of the EAR). Presumption of denial 81 FR [INSERT FR PAGE NUMBER], 3/21/16.  *         *         *         *         *         * *         *         *         *         *         *         * Malaysia  *         *         *         *         *         * EEZ SDN, a.k.a., the following one alias:
  • —Electronic Engineering Zone SDN BHD.
  • 33-88 Menara Keck Seng, 203 Jalan Bukit Bintang, Kuala Lumpur, Malaysia; and A-17-8 Tower A, Menara Atlas, Plaza Pantai 5, Jalan 4/83A, off Jalan Pantai Baru, Kuala Lumpur, Malaysia; and B-3A-7 Empire Subang, Jalan SS16/1, Subang Jaya, Malaysia.
  • For all items subject to the EAR. (See § 744.11 of the EAR). Presumption of denial 81 FR [INSERT FR PAGE NUMBER], 3/21/16.
     *         *         *         *         *         * Mohamad Sadeghi, 33-88 Menara Keck Seng, 203 Jalan Bukit Bintang, Kuala Lumpur, Malaysia; and A-17-8 Tower A, Menara Atlas, Plaza Pantai 5, Jalan 4/83A, off Jalan Pantai Baru, Kuala Lumpur, Malaysia. For all items subject to the EAR. (See § 744.11 of the EAR). Presumption of denial 81 FR [INSERT FR PAGE NUMBER], 3/21/16.  *         *         *         *         *         * Mohsen Torabi, a.k.a., the following one alias:
  • —Moha Torab.
  • 2nd Floor, Jalan 9A, Berangan, Kuala Lumpur, Malaysia; and 33-88 Menara Keck Seng, 203 Jalan Bukit Bintang, Kuala Lumpur, Malaysia; and A-17-8 Tower A, Menara Atlas, Plaza Pantai 5, Jalan 4/83A, off Jalan Pantai Baru, Kuala Lumpur, Malaysia.
  • For all items subject to the EAR. (See § 744.11 of the EAR). Presumption of denial 81 FR [INSERT FR PAGE NUMBER], 3/21/16.
     *         *         *         *         *         * Muhamad Fazil bin Khalid, 33-88 Menara Keck Seng, 203 Jalan Bukit Bintang, Kuala Lumpur, Malaysia; and A-17-8 Tower A, Menara Atlas, Plaza Pantai 5, Jalan 4/83A, off Jalan Pantai Baru, Kuala Lumpur, Malaysia; and No. 2 Jalan 29C, Selayang Baru, Batu Caves, Selangor, Malaysia. For all items subject to the EAR. (See § 744.11 of the EAR). Presumption of denial 81 FR [INSERT FR PAGE NUMBER], 3/21/16.  *         *         *         *         *         * Syarikat Penghantaran TWW Sdn Bhd, Lot C-7, Block C Mas Advance Cargo Centre KLIA Cargo Village Southern Support Zone 64000, Sepang Selangor Darul Ehsan, Malaysia. For all items subject to the EAR. (See § 744.11 of the EAR). Presumption of denial 81 FR [INSERT FR PAGE], 3/21/16. *         *         *         *         *         *         * Netherlands All Industrial International, Knobbelswaansingel 19, 2496 LN, The Hague, Netherlands; and Breukelensestraat 44, 2574 RC, The Hague, Netherlands. For all items subject to the EAR. (See § 744.11 of the EAR). Presumption of denial 81 FR [INSERT FR PAGE], 3/21/16. Kapil Raj Arora, Breukelensestraat 44, 2574 RC, The Hague, Netherlands; and Knobbelswaansingel 19, 2496 LN, The Hague, Netherlands. For all items subject to the EAR. (See § 744.11 of the EAR). Presumption of denial 81 FR [INSERT FR PAGE], 3/21/16. *         *         *         *         *         *         * Singapore Amanda Sng, 211 Henderson Road, #13-02 Henderson Industrial Park, Singapore 159552. For all items subject to the EAR. (See § 744.11 of the EAR). Presumption of denial 81 FR [INSERT FR PAGE NUMBER], 3/21/16.  *         *         *         *         *         * *         *         *         *         *         *         * Switzerland Beaumont Trading AG, a.k.a., the following one alias:
  • —Beaumont Tradex India.
  • Haldenstrasse 5, Baar (Zug Canton), CH 6342 Switzerland (See alternate addresses in India and the U.A.E.).
  • For all items subject to the EAR. (See § 744.11 of the EAR). Presumption of denial 81 FR [INSERT FR PAGE NUMBER], 3/21/16.
    *         *         *         *         *         *         * United Arab Emirates  *         *         *         *         *         * AdCom Systems, Industrial City of Abu Dhabi—ICAD, Abu Dhabi, U.A.E. For all items subject to the EAR. (See § 744.11 of the EAR). Presumption of denial 81 FR [INSERT FR PAGE NUMBER], 3/21/16. Advanced Targeting Systems Company, LLC (ATS), P.O. Box 34237, High Specialized Economical Zone M41, 103A13, Al Mussafah, Abu Dhabi, U.A.E. For all items subject to the EAR. (See § 744.11 of the EAR). Presumption of denial 81 FR [INSERT FR PAGE NUMBER], 3/21/16.  *         *         *         *         *         * Beaumont Trading AG, a.k.a., the following one alias:
  • —Beaumont Tradex India.
  • DMCC Business Center, 49 Almas Tower—JLT Dubai, U.A.E. (See alternate addresses in India and Switzerland).
  • For all items subject to the EAR. (See § 744.11 of the EAR). Presumption of denial 81 FR [INSERT FR PAGE NUMBER], 3/21/16.
    Behover General Trading/Information Technologies, a.k.a., the following one alias:
  • —DBA Behover Information Technologies.
  • For all items subject to the EAR. (See § 744.11 of the EAR). Presumption of denial 81 FR [INSERT FR PAGE NUMBER], 3/21/16.
    P.O. Box 25756, Atrium Center Building, Burdubai, Dubai, U.A.E.; and Unit M3&4, Atrium Centre, Bank Street Dubai, U.A.E.; and P.O. Box 19741, Dubai, U.A.E.; and Unit 2009, Prism Tower, Business Bay, Dubai, U.A.E.; and P.O. Box 115904, Dubai, U.A.E. Beverly Apigo, P.O. Box 28515, Dubai, U.A.E.; and 202 B Sama Tower Sheikh Tayed Road #3 Dubai, U.A.E. P.O. Box 16048; and BC2-414, RAK Free Trade Zone, P.O. Box 16048, Ras Al Khaimah, U.A.E.; and G1/RAK Free Trade Zone RAK—U.A.E.; and G-17 Sheikh Tayed Road #3, Ras Al Khaimah Free Trade Zone, Dubai, U.A.E.; and P.O. Box 10559 Ras Al Khaimah, U.A.E.; and P.O. Box 25344 Bur Dubai, Dubai, U.A.E.; and Suite 608 Atrium Center, Bank St., Bur Dubai, Dubai, U.A.E., P.O. Box 16048; and Suite 706 Atrium Center Bank Street, Bur Dubai, Dubai U.A.E. For all items subject to the EAR. (See § 744.11 of the EAR). Presumption of denial 81 FR [INSERT FR PAGE NUMBER], 3/21/16. Complete Freight Solutions, 704 The Atrium Ctr, Khalid Bin, Dubai, U.A.E; and 1st Floor, Office No. 114, Yousef Al Otaiba Bldg, Above Emirates Islamic Bank Office, 2nd December Street (Old Al Dyafah Street), P.O. Box No. 29687, Satwa, Dubai, U.A.E. For all items subject to the EAR. (See § 744.11 of the EAR). Presumption of denial 81 FR [INSERT FR PAGE NUMBER], 3/21/16.  *         *         *         *         *         * Cybernet MEA, 202 B Sama Tower Sheikh Tayed Road #3, Dubai, U.A.E., P.O. Box 16048; and BC2-414, RAK Free Trade Zone, P.O. Box 16048 Ras Al Khaimah, U.A.E.; and G1/RAK Free Trade Zone RAK—U.A.E.; and G-17 Sheikh Tayed Road #3, Ras Al Khaimah Free Trade Zone, Dubai, U.A.E.; and No. 608 Atrium Center Bank Street, Dubai, U.A.E.; and P.O. Box 10559 Ras Al Khaimah, U.A.E.; and P.O. Box 116911 Dubai, U.A.E.; and P.O. Box 25344 Bur Dubai, Dubai, U.A.E.; and Suite 608 Atrium Center Bank Street, Bur Dubai, Dubai, U.A.E.; and Suite 706 Atrium Center Bank Street, Bur Dubai, Dubai U.A.E. For all items subject to the EAR. (See § 744.11 of the EAR). Presumption of denial 81 FR [INSERT FR PAGE NUMBER], 3/21/16.  *         *         *         *         *         * Donna Lynn Ocampo, P.O. Box 28515, Dubai, U.A.E.; and 202 B Sama Tower Sheikh Tayed Road #3 Dubai, U.A.E., P.O. Box 16048; and BC2-414, RAK Free Trade Zone P.O. Box 16048 Ras Al Khaimah, U.A.E.; and G1/RAK Free Trade Zone RAK—U.A.E.; and G-17 Sheikh Tayed Road #3 Ras Al Khaimah Free Trade Zone Dubai, U.A.E.; and P.O. Box 10559 Ras Al Khaimah, U.A.E.; and P.O. Box 25344 Bur Dubai, Dubai, U.A.E.; and Suite 608 Atrium Center, Bank St., Bur Dubai, Dubai, U.A.E. P.O. Box 16048; and Suite 706 Atrium Center Bank Street Bur Dubai, Dubai, U.A.E. For all items subject to the EAR. (See § 744.11 of the EAR). Presumption of denial 81 FR [INSERT FR PAGE NUMBER], 3/21/16.  *         *         *         *         *         * Frank Genin, a.k.a., the following one alias:
  • —Franck Genin.
  • Villa No. 6 AL WASL RD, 332/45b Jumeira 1, Dubai, Dubai 25344, U.A.E.; and Suite 608 Atrium Center, Bank St., Bur Dubai, Dubai, U.A.E., P.O. Box 16048; and Suite 706 Atrium Center Bank Street Bur Dubai, Dubai U.A.E.; and P.O. Box 10559 Ras Al Khaimah, U.A.E.; and P.O. Box 25344 Bur Dubai, Dubai, U.A.E.; and 2nd Floor, #202 Sheik Zayed Road Dubai POB 25344 U.A.E.; and P.O. Box 28515, Dubai, U.A.E.; and 202 B Sama Tower Sheikh Tayed Road #3 Dubai, U.A.E. P.O. Box 16048; and BC2-414, RAK Free Trade Zone P.O. Box 16048 Ras Al Khaimah, U.A.E.; and G1/RAK Free Trade Zone RAK—U.A.E.; and G-17 Sheikh Tayed Road #3 Ras Al Khaimah Free Trade Zone, Dubai, U.A.E. (See alternate address under Hong Kong).
  • For all items subject to the EAR. (See § 744.11 of the EAR). Presumption of denial 81 FR [INSERT FR PAGE NUMBER], 3/21/16.
     *         *         *         *         *         * Gulf Eagle Contracting (GEC), P.O. Box 31814, Al Dhafra Road, New Airport Road, Abu Dhabi, U.A.E. For all items subject to the EAR. (See § 744.11 of the EAR). Presumption of denial 81 FR [INSERT FR PAGE NUMBER], 3/21/16. Gulf Eagle Industrial and Metal Profiles (GEIMP), P.O. Box 31814, Al Mussafah Industrial City, Abu Dhabi, U.A.E. For all items subject to the EAR. (See § 744.11 of the EAR). Presumption of denial 81 FR [INSERT FR PAGE NUMBER], 3/21/16. Hamideh Ghayour, P.O. Box 155904, Dubai, U.A.E.; and Unit M3&4, Atrium Centre, Bank Street Dubai, U.A.E. For all items subject to the EAR. (See § 744.11 of the EAR). Presumption of denial 81 FR [INSERT FR PAGE NUMBER], 3/21/16.  *         *         *         *         *         * Innovative Technology Systems (ITS), 2nd Floor, #202 Sheik Zayed Road Dubai, POB 25344, U.A.E.; and Suite 608 Atrium Center, Bank Street, Bur Dubai, Dubai, U.A.E; and Suite 706 Atrium Center Bank Street, Bur Dubai, Dubai U.A.E. For all items subject to the EAR. (See § 744.11 of the EAR). Presumption of denial 81 FR [INSERT FR PAGE NUMBER], 3/21/16.  *         *         *         *         *         * Managed Systems and Services (MSAS)(FZC), No. A3089 Seif Sharjah U.A.E.; and SAIF Zone 250 M2 Warehouse P60-109, P.O. Box 122550, Sharjah, U.A.E. For all items subject to the EAR. (See § 744.11 of the EAR). Presumption of denial 81 FR [INSERT FR PAGE NUMBER], 3/21/16.  *         *         *         *         *         * Mehdi Jafariyeh, a.k.a., the following one alias:
  • —Mehdi Jeffery.
  •  P.O. Box 28515, Dubai, U.A.E.; and 202 B Sama Tower Sheikh Tayed Road #3 Dubai, U.A.E., P.O. Box 16048; and BC2-414, RAK Free Trade Zone P.O. Box 16048 Ras Al Khaimah, U.A.E.; and G 1/RAK Free Trade Zone RAK—U.A.E.; and G-17 Sheikh Tayed Road #3 Ras Al Khaimah Free Trade Zone, Dubai, U.A.E. and P.O. Box 10559 Ras Al Khaimah, U.A.E.; and P.O. Box 25344 Bur Dubai, Dubai, U.A.E.; and Suite 608 Atrium Center, Bank St., Bur Dubai, Dubai, U.A.E., P.O. Box 16048; and Suite 706 Atrium Center Bank Street Bur Dubai, Dubai U.A.E.
  • For all items subject to the EAR. (See § 744.11 of the EAR). Presumption of denial 81 FR [INSERT FR PAGE NUMBER], 3/21/16.
     *         *         *         *         *         * Patco Group Ltd, P.O. Box 20470, Ajman, U.A.E.; and Ajman Free Zone Bldg., 48-Block-C Meena Road near Ajman Sea Port, Ajman, U.A.E. For all items subject to the EAR. (See § 744.11 of the EAR). Presumption of denial 81 FR [INSERT FR PAGE NUMBER], 3/21/16.  *         *         *         *         *         * Reza Hajigholamali, P.O. Box 20470, Ajman, U.A.E.; and Ajman Free Zone Bldg., 48-Block-C Meena Road near Ajman Sea Port, Ajman, U.A.E (See alternate address under Iran). For all items subject to the EAR. (See § 744.11 of the EAR). Presumption of denial 81 FR [INSERT FR PAGE NUMBER], 3/21/16. Rose Ann Apigo, P.O. Box 28515, Dubai, U.A.E.; and 202 B Sama Tower Sheikh Tayed Road #3 Dubai, U.A.E., P.O. Box 16048; and BC2-414, RAK Free Trade Zone P.O. Box 16048 Ras Al Khaimah, U.A.E.; and G1/RAK Free Trade Zone RAK—U.A.E.; and G-17 Sheikh Tayed Road #3 Ras Al Khaimah Free Trade Zone, Dubai, U.A.E.; and P.O. Box 10559 Ras Al Khaimah, U.A.E.; and P.O. Box 25344 Bur Dubai, Dubai, U.A.E.; and Suite 608 Atrium Center, Bank St., Bur Dubai, Dubai, U.A.E., P.O. Box 16048; and Suite 706 Atrium Center Bank Street, Bur Dubai, Dubai U.A.E. For all items subject to the EAR. (See § 744.11 of the EAR). Presumption of denial 81 FR [INSERT FR PAGE NUMBER], 3/21/16.  *         *         *         *         *         * Skylinks FZC, a.k.a., the following two aliases:
  • —Skylinks; and
  • —Skylinks Satellite Comm.
  • For all items subject to the EAR. (See § 744.11 of the EAR). Presumption of denial 81 FR [INSERT FR PAGE NUMBER], 3/21/16.
    P.O. Box 28515, Dubai, U.A.E.; and 202 B Sama Tower Sheikh Tayed Road #3 Dubai, U.A.E., P.O. Box 16048; and BC2-414, RAK Free Trade Zone P.O. Box 16048 Ras Al Khaimah, U.A.E.; and G1/RAK Free Trade Zone RAK—U.A.E.; and G-17 Sheikh Tayed Road #3 Ras Al Khaimah Free Trade Zone, Dubai, U.A.E.; and P.O. Box 10559 Ras Al Khaimah, U.A.E.; and P.O. Box 25344 Bur Dubai, Dubai, U.A.E.; and Suite 608 Atrium Center, Bank St., Bur Dubai, Dubai, U.A.E., P.O. Box 16048; and Suite 706 Atrium Center Bank Street, Bur Dubai, Dubai U.A.E. 3 (See alternate address under Hong Kong).  *         *         *         *         *         * T.V. Joe Ouseppachan, Office 228, Al Aatar Shopping Mall, P.O. Box 115824, Karama, Dubai, U.A.E. For all items subject to the EAR. (See § 744.11 of the EAR). Presumption of denial 81 FR [INSERT FR PAGE NUMBER], 3/21/16.  *         *         *         *         *         * Teofila Logistics, Office 228, Al Aatar Shopping Mall, P.O. Box 115824, Karama, Dubai, U.A.E. For all items subject to the EAR. (See § 744.11 of the EAR). Presumption of denial 81 FR [INSERT FR PAGE NUMBER], 3/21/16. TGO General Trading LLC, a.k.a., the following one alias:
  • —Three Green Orbit.
  •  19th Floor Festival Tower, Festival City, P.O. Box 36605, Dubai, U.A.E.
  • For all items subject to the EAR. (See § 744.11 of the EAR). Presumption of denial 81 FR [INSERT FR PAGE NUMBER], 3/21/16.
     *         *         *         *         *         * *         *         *         *         *         *         *
    Dated: March 17, 2016. Kevin J. Wolf, Assistant Secretary for Export Administration.
    [FR Doc. 2016-06406 Filed 3-18-16; 8:45 am] BILLING CODE 3510-33-P
    COMMODITY FUTURES TRADING COMMISSION 17 CFR Part 32 RIN 3038-AE26 Trade Options AGENCY:

    Commodity Futures Trading Commission.

    ACTION:

    Final rule.

    SUMMARY:

    The Commodity Futures Trading Commission (the “Commission” or the “CFTC”) is issuing a final rule to amend the limited trade options exemption in the Commission's regulations, as described herein, with respect to the following subject areas: Reporting requirements for trade option counterparties that are not swap dealers or major swap participants; recordkeeping requirements for trade option counterparties that are not swap dealers or major swap participants; and certain non-substantive amendments.

    DATES:

    Effective date: The effective date for this final rule is March 21, 2016.

    FOR FURTHER INFORMATION CONTACT:

    David N. Pepper, Special Counsel, Division of Market Oversight, at (202) 418-5565 or [email protected]; or Mark Fajfar, Assistant General Counsel, Office of the General Counsel, at (202) 418-6636 or [email protected], Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st Street NW., Washington, DC 20581.

    SUPPLEMENTARY INFORMATION:

    I. Introduction A. Background

    In April 2012, pursuant to section 4c(b) of the Commodity Exchange Act (the “CEA” or the “Act”),1 the Commission issued a final rule to repeal and replace part 32 of its regulations concerning commodity options.2 The Commission undertook this effort to address section 721 of the Dodd-Frank Act Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Act” or “Dodd-Frank”),3 which, among other things, amended the CEA to define the term “swap” to include commodity options.4 Notably, § 32.2(a) provides the general rule that commodity option transactions must be conducted in compliance with any Commission rule, regulation, or order otherwise applicable to any other swap.5

    1 7 U.S.C. 6c(b) (providing that no person shall offer to enter into, enter into or confirm the execution of, any transaction involving any commodity regulated under this chapter which is of the character of, or is commonly known to the trade as an “option” contrary to any rule, regulation, or order of the Commission prohibiting any such transaction or allowing any such transaction under such terms and conditions as the Commission shall prescribe).

    2See Commodity Options, 77 FR 25320 (Apr. 27, 2012) (“Commodity Options Release”). The Commission also issued certain conforming amendments to parts 3 and 33 of its regulations. See id. The Commission's regulations are set forth in chapter I of title 17 of the Code of Federal Regulations.

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

    4See 7 U.S.C. 1a(47)(A)(i) (defining “swap” to include an option of any kind that is for the purchase or sale, or based on the value, of 1 or more commodities”); 7 U.S.C. 1a(47)(B)(i) (excluding options on futures from the definition of “swap”); 7 U.S.C. 1a(36) (defining an “option” as an agreement, contract, or transaction that is of the character of, or is commonly known to the trade as, an “option”). The Commission defines “commodity option” or “commodity option transaction” as any transaction or agreement in interstate commerce which is or is held out to be of the character of, or is commonly known to the trade as, an “option,” “privilege,” “indemnity,” “bid,” “offer,” “call,” “put,” “advance guaranty” or “decline guaranty” and which is subject to regulation under the Act and Commission regulations. See 17 CFR 1.3(hh).

    5See 17 CFR 32.2.

    In response to requests from commenters, the Commission added a limited exception to this general rule for physically delivered commodity options purchased by commercial users of the commodities underlying the options (the “trade option exemption”).6 Adopted as an interim final rule, § 32.3 provides that qualifying commodity options are generally exempt from the swap requirements of the CEA and the Commission's regulations, subject to certain specified conditions. To qualify for the trade option exemption, a commodity option transaction must meet the following requirements: (1) The offeror is either an eligible contract participant (“ECP”) 7 or a producer, processor, commercial user of, or merchant handling the commodity that is the subject of the commodity option transaction, or the products or byproducts thereof (a “commercial party”) that offers or enters into the commodity option transaction solely for purposes related to its business as such; (2) the offeree is, and the offeror reasonably believes the offeree to be, a commercial party that is offered or enters into the transaction solely for purposes related to its business as such; and (3) the option is intended to be physically settled so that, if exercised, the option would result in the sale of an exempt or agricultural commodity 8 for immediate or deferred shipment or delivery.9

    6See 77 FR at 25326-29. See also 17 CFR 32.2(b), 32.3. The interim final rule continued the Commission's long history of providing special treatment to “trade options” dating back to the Commission's original trade option exemption in 1976. See Regulation and Fraud in Connection with Commodity and Commodity Option Transactions, 41 FR 5108 (Nov. 18, 1976).

    7See 7 U.S.C. 1a(18) (defining “eligible contract participant”); 17 CFR 1.3(m) (further defining “eligible contract participant”).

    8See 7 U.S.C. 1a(20) (defining “exempt commodity” to mean a commodity that is not an agricultural commodity or an “excluded commodity,” as defined in 7 U.S.C. 1a(19)); 17 CFR 1.3(zz) (defining “agricultural commodity”). Examples of exempt commodities include energy commodities and metals.

    9See 17 CFR 32.3(a).

    Commodity option transactions that meet these requirements are generally exempt from the provisions of the Act and any Commission rule, regulation, or order promulgated or issued thereunder, otherwise applicable to any other swap, except for the requirements enumerated in § 32.3(b)-(d).10 These requirements include: Recordkeeping and reporting requirements; 11 large trader reporting requirements in part 20; 12 position limits under part 151; 13 certain recordkeeping, reporting, and risk management duties applicable to swap dealers (“SDs”) and major swap participants (“MSPs”) in subparts F and J of part 23; 14 capital and margin requirements for SDs and MSPs under CEA section 4s(e); 15 and any applicable antifraud and anti-manipulation provisions.16

    10See 17 CFR 32.3(a), (b)-(d).

    11See 17 CFR 32.3(b).

    12See 17 CFR 32.3(c)(1). Applying § 32.3(c)(1), reporting entities as defined in part 20—swap dealers and clearing members—must consider their counterparty's trade option positions just as they would consider any other swap position for the purpose of determining whether a particular counterparty has a consolidated account with a reportable position. See 17 CFR 20.1. A trade option counterparty would not be responsible for filing large trader reports unless it qualifies as a “reporting entity,” as that term is defined in § 20.1.

    13See 17 CFR 32.3(c)(2). See also Int'l Swaps & Derivatives Ass'n v. U.S. Commodity Futures Trading Comm'n, 887 F. Supp. 2d 259, 270 (D.D.C. 2012), vacating the part 151 rulemaking, Position Limits for Futures and Swaps, 76 FR 71626 (Nov. 18, 2011).

    14See 17 CFR 32.3(c)(3)-(4). Note that § 32.3(c)(4) explicitly incorporates §§ 23.201 and 23.204, which require counterparties that are SD/MSPs to comply with part 45 recordkeeping and reporting requirements, respectively, in connection with all their swaps activities (including all their trade option activities). See 17 CFR 23.201(c), 23.204(a).

    15See 17 CFR 32.3(c)(5).

    16See 17 CFR 32.3(d). Note that § 32.2 also preserves the continued application of § 32.4, which specifically prohibits fraud in connection with commodity option transactions, to commodity options subject to the trade option exemption. See 17 CFR 32.2, 32.4.

    In adopting § 32.3,17 the Commission stated that the trade option exemption is generally intended to permit parties to hedge or otherwise enter into commodity option transactions for commercial purposes without being subject to the full Dodd-Frank swaps regime.18 This limited exemption continued the Commission's longstanding practice of providing commercial participants in trade options with relief from certain requirements that would otherwise apply to commodity options.19 The Commission further explained that the applicable conditions in § 32.3(b)-(d) were primarily intended to preserve a level of visibility into the market for trade options while still reducing the regulatory compliance burden for trade option participants.20

    17 In the year following the Commission's adoption of the trade option exemption, the Commission's Division of Market Oversight (“DMO”) issued a series of no-action letters granting relief from certain conditions in the trade option exemption. See CFTC No-Action Letter No. 12-06 (Aug. 14, 2012), available at http://www.cftc.gov/ucm/groups/public/@lrlettergeneral/documents/letter/12-06.pdf; CFTC No-Action Letter No. 12-41 (Dec. 5, 2012), available at http://www.cftc.gov/ucm/groups/public/@lrlettergeneral/documents/letter/12-41.pdf; CFTC No-Action Letter No. 13-08 (Apr. 5, 2013), available at http://www.cftc.gov/ucm/groups/public/@lrlettergeneral/documents/letter/13-08.pdf. CFTC No-Action Letter No. 13-08 (“No-Action Letter 13-08”) provides that DMO would not recommend that the Commission commence an enforcement action against a market participant that is a Non-SD/MSP for failing to comply with the part 45 reporting requirements, as required by § 32.3(b)(1), provided that such Non-SD/MSP meets certain conditions, including reporting such exempt commodity option transactions via Form TO and notifying DMO no later than 30 days after entering into trade options having an aggregate notional value in excess of $1 billion during any calendar year. No-Action Letter 13-08 at 3-4. No-Action Letter 13-08 also grants relief from certain swap recordkeeping requirements in part 45 for a Non-SD/MSP that complies with the recordkeeping requirements set forth in § 45.2, provided that if the counterparty to the trade option at issue is an SD or an MSP, the Non-SD/MSP obtains a legal entity identifier (“LEI”) pursuant to § 45.6. Id. at 4-5. DMO will withdraw the no-action relief provided pursuant to No-Action Letter 13-08 upon the effective date of this final rule.

    18See 77 FR at 25326, n.39. The limited trade option exemption in § 32.3 operates as a general exemption from the rules otherwise applicable to swaps, subject to the conditions enumerated in § 32.3. For example, trade options do not factor into the determination of whether a market participant is an SD or MSP; trade options are exempt from the rules on mandatory clearing; and trade options are exempt from the rules related to real-time reporting of swaps transactions. The provisions identified in this list are not intended to constitute an exclusive or exhaustive list of the swaps requirements from which trade options are exempt.

    19See Regulation and Fraud in Connection with Commodity and Commodity Option Transactions, 41 FR 51808 (Nov. 24, 1976) (adopting an exemption from the general requirement that commodity options be traded on-exchange for commodity option transaction for certain transactions involving commercial parties); Suspension of the Offer and Sale of Commodity Options, 43 FR 16153, 16155 (Apr. 17, 1978) (adopting a rule suspending all trading in commodity options other than such exempt trade options); Trade Options on the Enumerated Agricultural Commodities, 63 FR 18821 (Apr. 16, 1998) (authorizing the off-exchange trading of trade options in agricultural commodities).

    20See 77 FR at 25326-27.

    B. Existing Reporting Requirements for Trade Option Counterparties That Are Non-SD/MSPs

    Pursuant to § 32.3(b)(1), the determination as to whether a trade option must be reported pursuant to part 45 is based on the status of the parties to the trade option and whether or not they have previously reported swaps to an appropriate swap data repository (“SDR”) pursuant to part 45.21 If a trade option involves at least one counterparty (whether as buyer or seller) that has (1) become obligated to comply with the reporting requirements of part 45, (2) as a reporting party, (3) during the twelve month period preceding the date on which the trade option is entered into, (4) in connection with any non-trade option swap trading activity, then such trade option must also be reported pursuant to the reporting requirements of part 45. If only one counterparty to a trade option has previously complied with the part 45 reporting provisions, as described above, then that counterparty shall be the part 45 reporting counterparty for the trade option. If both counterparties have previously complied with the part 45 reporting provisions, as described above, then the part 45 rules for determining the reporting counterparty will apply.22

    21See 17 CFR 32.3(b)(1).

    22See 17 CFR 45.8.

    To the extent that neither counterparty to a trade option has previously submitted reports to an SDR as a result of its swap trading activities as described above, then such trade option is not required to be reported pursuant to part 45. Instead, § 32.3(b)(2) requires that each counterparty to an otherwise unreported trade option (i.e., a trade option that is not required to be reported to an SDR by either counterparty pursuant to § 32.3(b)(1) and part 45) completes and submits to the Commission an annual Form TO filing providing notice that the counterparty has entered into one or more unreported trade options during the prior calendar year.23 Form TO requires an unreported trade option counterparty to: (1) Provide its name and contact information; (2) identify the categories of commodities (agricultural, metals, energy, or other) underlying one or more unreported trade options which it entered into during the prior calendar year; and (3) for each commodity category, identify the approximate aggregate value of the underlying physical commodities that it either delivered or received in connection with the exercise of unreported trade options during the prior calendar year. Counterparties to otherwise unreported trade options must submit a Form TO filing by March 1 following the end of any calendar year during which they entered into one or more unreported trade options.24 In adopting § 32.3, the Commission stated that Form TO was intended to provide the Commission with a level of visibility into the market for unreported trade options that is “minimally intrusive,” thereby allowing it to identify market participants from whom it should collect additional information, or whom it should subject to additional reporting obligations in the future.25

    23 Form TO is set out in appendix A to part 32 of the Commission's regulations.

    24 In 2014, approximately 330 Non-SD/MSPs submitted Form TO filings to the Commission, approximately 200 of which indicated delivering or receiving less than $10 million worth of physical commodities in connection with exercising unreported trade options in 2013, which was the first year in which § 32.3 and Form TO reporting became effective. In 2015, approximately 349 Non-SD/MSPs submitted Form TO filings to the Commission, approximately 150 of which indicated delivering or receiving less than $10 million worth of physical commodities.

    25See 77 FR at 25327-28.

    C. Existing Recordkeeping Requirements for Trade Option Counterparties That Are Non-SD/MSPs

    Commission regulation § 32.3(b) provides that in connection with any commodity option transaction that is eligible for the trade option exemption, every counterparty shall comply with the swap data recordkeeping requirements of part 45, as otherwise applicable to any swap transaction.26 In discussing the trade option exemption conditions, however, the Commission noted in the preamble to the Commodity Options Release that “[t]hese conditions include a recordkeeping requirement for any trade option activity, i.e., the recordkeeping requirements of 17 CFR 45.2,” and did not reference or discuss any other provision of part 45 that contains recordkeeping requirements.27

    26See 17 CFR 32.3(b).

    27See 77 FR at 25327.

    Pursuant to Commission regulation § 45.2, records must be maintained by all trade option participants and made available to the Commission as specified therein.28 Notably, § 45.2 applies different recordkeeping requirements, depending on the nature of the counterparty. For example, if a trade option counterparty is an SD or MSP, it would be subject to the recordkeeping provisions of § 45.2(a). If a counterparty is a Non-SD/MSP, it would be subject to the less stringent recordkeeping requirements of § 45.2(b).29 Additional recordkeeping requirements in part 45, separate and apart from those specified in § 45.2 and which would apply to all trade option counterparties by operation of § 32.3(b) include:

    28 17 CFR 32.3(b), 45.2.

    29 In the case of Non-SD/MSPs, the primary recordkeeping requirements are set out in § 45.2(b), which requires Non-SD/MSPs to keep “full, complete and systematic records, together with all pertinent data and memoranda, with respect to each swap in which they are a counterparty.” Non-SD/MSPs are also subject to the other general recordkeeping requirements of § 45.2, such as the requirement that records must be maintained for 5 years following the final termination of the swap and must be retrievable within 5 days. See 17 CFR 45.2(c).

    • Each swap must be identified in all recordkeeping by the use of a unique swap identifier (“USI”); 30

    30 17 CFR 45.5.

    • Each counterparty to any swap must be identified in all recordkeeping by means of a single LEI; 31 and

    31 Each counterparty to any swap subject to the Commission's jurisdiction must be identified in all recordkeeping and all swap data reporting pursuant to part 45 by means of a single LEI as specified in § 45.6. See 17 CFR 45.6.

    • Each swap must be identified in all recordkeeping by means of a unique product identifier (“UPI”) and product classification system.32

    32 17 CFR 45.7.

    D. Trade Options Notice of Proposed Rulemaking

    On May 7, 2015, the Commission published in the Federal Register a notice of proposed rulemaking that included several proposed amendments to the limited exemption for trade options in Commission regulation § 32.3 (“the Proposal”).33 The Commission proposed modifications to the recordkeeping and reporting requirements in existing § 32.3(b) that are applicable to trade option counterparties that are Non-SD/MSPs. The Commission also proposed a non-substantive amendment to existing § 32.3(c) to eliminate the reference to the now-vacated part 151 position limits requirements. These proposed amendments were generally intended to relax reporting and recordkeeping requirements where two commercial parties enter into trade options with each other in connection with their respective businesses while maintaining regulatory insight into the market for unreported trade options.

    33 Trade Options, Notice of Proposed Rulemaking, 80 FR 26200 (May 7, 2015), available at http://www.cftc.gov/ucm/groups/public/@lrfederalregister/documents/file/2015-11020a.pdf.

    The Commission requested comment on all aspects of the Proposal.34 In response, the Commission received nine comment letters.35 Some of these comment letters raised issues concerning the treatment of trade options, and, more generally, commodity options, in relation to the swap definition.36 However, in the Proposal, the Commission did not address the general treatment of commodity options, including trade options, in relation to the swap definition, nor did the Commission solicit comments on such definitional issues. Rather, as discussed above, the Proposal contained only specific proposed modifications to the recordkeeping and reporting requirements in § 32.3(b) that are applicable to trade option counterparties that are Non-SD/MSPs, as well as a proposed non-substantive amendment to § 32.3(c). Since issues concerning the treatment of commodity options in relation to the swap definition fall outside the scope of the Proposal, the Commission declines to address such definitional issues in this final rule.

    34See 80 FR at 26202. Initially, comments on the Proposal were due on or before June 8, 2015. Then, on June 2, 2015, the Commission extended the comment period for the Proposal through June 22, 2015, in light of the Commission's then recently-published interpretation concerning forward contracts with embedded volumetric optionality. See Forward Contracts with Embedded Volumetric Optionality, 80 FR 28239 (May 18, 2015).

    35 All comment letters are available through the Commission's Web site at http://comments.cftc.gov/PublicComments/CommentList.aspx?id=1580. Comments addressing the Trade Options NPRM were received from the following parties: The American Gas Association (“AGA”); The American Public Gas Association (“APGA”); The American Public Power Association, Edison Electric Institute, Electric Power Supply Association, Large Public Power Council, National Rural Electric Cooperative Association (“Electric Associations”); The Coalition of Physical Energy Companies (“COPE”); Cogen Technologies Linden Venture, L.P. (“Linden”); The Commercial Energy Working Group (“CEWG”); The International Energy Credit Association (“IECA”); The Natural Gas Supply Association (“NGSA”); and Southern Company Services Inc. on behalf of and as agent for Alabama Power Co., Georgia Power Co., Gulf Power Co., Mississippi Power Co., and Southern Power Co. (“Southern”).

    36See, e.g., IECA at 8-13; Linden at 2-8; Electric Associations at 6-10; AGA at 2-5; and Southern at 6-8.

    The following section will address the comments received on specific aspects of the Proposal in connection with explaining each of the amended regulations adopted herein.

    II. Discussion of Revised Regulations A. Revised Reporting Requirements for Trade Option Counterparties That Are Non-SD/MSPs 1. Elimination of Part 45 Reporting Requirements for Trade Option Counterparties That Are Non-SD/MSPs

    The Commission proposed to amend § 32.3(b) such that a Non-SD/MSP will under no circumstances be subject to part 45 reporting requirements with respect to its trade option activities.37 The Commission explained in the Proposal that this proposed amendment was intended to reduce reporting burdens for Non-SD/MSP trade option counterparties, many of whom face technical and logistical impediments that prevent timely compliance with part 45 reporting requirements.38

    37See 80 FR at 26203. Note that trade option counterparties that are SD/MSPs would continue to comply with the swap data reporting requirements of part 45, including where the counterparty is a Non-SD/MSP, as they would in connection with any other swap transaction. See 17 CFR 32.3(c)(4) [renumbered 32.3(c)(3)], 23.201 and 23.204.

    38Id.

    NGSA, IECA, and APGA each supported deletion of part 45 reporting requirements for trade option counterparties that are Non-SD/MSPs.39 No commenter opposed deletion.

    39See NGSA at 1 (“The elimination of Part 45 reporting . . . for [Non-SD/MSP] counterparties to trade options will eliminate costs that stem from those reporting efforts, and this is a welcome change in reporting requirements.”); see also IECA at 2; APGA at 2.

    The Commission recognizes that many parties who are not SDs or MSPs and do not engage in significant swap activity apart from trade options do not have the infrastructure in place to support part 45 reporting to an SDR and that instituting such infrastructure would be costly, particularly for small end users. Therefore, the Commission believes that these parties, who apart from their trade option activities would have very limited reporting obligations under part 45, should not be required to comply with part 45 reporting requirements solely on the basis of having had to report a minimal number of historical or inter-affiliate swaps during the same twelve-month period.

    Accordingly, for the reasons set forth above and in the Proposal, the Commission is adopting amended regulation § 32.3(b), as proposed, by eliminating part 45 reporting requirements for trade option counterparties that are Non-SD/MSPs.

    2. Elimination of the Form TO Notice Filing Requirement

    The Commission proposed to amend Commission regulation § 32.3(b) such that a Non-SD/MSP would not be required to report otherwise unreported trade options on Form TO.40 The Commission further proposed to delete Form TO from appendix A to part 32. The Commission explained in the Proposal that these proposed amendments were intended to reduce reporting burdens for Non-SD/MSP trade option counterparties, many of whom face significant costs in preparing Form TO.41

    40See 80 FR at 26203.

    41Id.

    AGA, Electric Associations, CEWG, APGA and NGSA each supported deletion of the Form TO reporting requirement.42 No commenter opposed deletion of Form TO. AGA commented that the proposed elimination of Form TO could “reduce a significant compliance cost and obviate the need for small end-users to track and report their trade options activity for a given calendar year.” 43 Electric Associations commented that “Form TO imposes substantial costs on end-users for personnel, legal advice and infrastructure,” and completing Form TO requires an end-user to “continuously track the commodity trade options it enters into, identify which of the commodity trade options have and have not been reported, and track the commodity trade options exercised. . . .” 44 CEWG commented that “elimination of the obligation to file Form TO will allow [Non-SD/MSP trade option counterparties] to (i) reduce the amount of resources dedicated to identifying and tracking their trade options and (ii) reallocate resources for optimal utilization.” 45 COPE commented that filing the actual Form TO is not burdensome, but rather it is the underlying tracking that is burdensome.46

    42See, e.g., AGA at 2, 8; Electric Associations at 1, 5; CEWG at 2; APGA at 2; NGSA at 1.

    43 AGA at 8.

    44See Electric Associations at 5.

    45 CEWG at 2.

    46See COPE at 2.

    The Commission recognizes that completing Form TO imposes costs and burdens on Non-SD/MSPs who enter into trade options, especially small end users. The Commission notes that Form TO data, which is submitted annually, consists of approximated aggregate values of otherwise unreported trade options exercised within three broad ranges, and within four “commodity categories.” 47 The Commission believes that, in view of the relatively limited surveillance and regulatory oversight benefits to be derived by the Commission from Form TO data, which is approximated, aggregated and undifferentiated, completion and submission of Form TO should no longer be required.

    47 Form TO requires Non-SD/MSP trade option counterparties to report the approximate size of unreported trade options exercised in the prior calendar year within three dollar-value ranges: Less than $10 million, between $10 million and $100 million, and over $100 million. Form TO also requires Non-SD/MSP trade option counterparties to indicate the “commodity category” in which they entered into one or more unreported trade options: Agricultural, metals, energy or “other.” See appendix A to part 32 of the Commission's regulations.

    Accordingly, for the reasons set forth above, the Commission is amending regulation § 32.3(b), as proposed, by deleting the Form TO reporting requirement in connection with otherwise unreported trade options. Additionally, as proposed, the Commission is deleting appendix A to part 32, which contains Form TO.

    3. The Proposed $1 Billion Notice and Alternative Notice Provisions Have Not Been Adopted

    The Commission proposed to further amend § 32.3(b) by adding a new requirement that Non-SD/MSP trade option counterparties provide notice by email to DMO within 30 days after entering into trade options, whether reported or unreported, that have an aggregate notional value in excess of $1 billion in any calendar year (the “$1 Billion Notice”).48 The Commission further proposed that, as an alternative to filing the $1 Billion Notice, a Non-SD/MSP could provide notice by email to DMO that it reasonably expects to enter into trade options, whether reported or unreported, having an aggregate notional value in excess of $1 billion during any calendar year (the “Alternative Notice”).49 Collectively, the $1 Billion Notice and the Alternative Notice were referred to in the proposal as the “Notice Requirement.” 50 The Commission explained in the Proposal that in light of the other proposed amendments that would generally remove reporting requirements for Non-SD/MSP counterparties to trade options, the proposed Notice Requirement would provide the Commission insight into the size of the market for unreported trade options and the identities of the most significant market participants, and would help guide the Commission's efforts to collect additional information through its authority to obtain copies of books or records should market circumstances dictate.51

    48See 80 FR at 26203-04. As discussed above, the no-action relief provided by No-Action Letter 13-08 to Non-SD/MSP trade option counterparties from part 45 reporting requirements is also conditioned on the Non-SD/MSP providing DMO with a $1 Billion Notice. See note 17 and accompanying text, supra. In 2013, 2014 and 2015, DMO received $1 Billion Notices from nine, sixteen and fifteen Non-SD/MSPs, respectively. Most of these $1 Billion Notices were filed on behalf of large, well known energy companies.

    49See 80 FR at 26203-04. The Commission proposed that Non-SD/MSPs who provide the Alternative Notice would not be required to demonstrate that they actually entered into trade options with an aggregate notional value of $1 billion or more in the applicable calendar year.

    50 80 FR at 26203.

    51See 80 FR at 26203-04.

    Electric Associations, COPE and Southern each recommended against adoption of the proposed Notice Requirement.52 Electric Associations commented that it would be burdensome for Non-SD/MSPs to track and value trade options “in a manner different than their ordinary tracking, measuring and recordkeeping for other cash commodity transactions (intended to be physically settled),” and that such burden would be greater for smaller entities, which would need to track and value their trade options throughout the year, than it would be for large Non-SD/MSP counterparties, which could merely send the proposed Alternative Notice email to the Commission in January of each year.53 Southern commented that elimination of the Form TO reporting requirement would not be as meaningful if the Commission adopts the proposed $1 Billion Notice, because a Non-SD/MSP would nevertheless be required “to classify, value and track their trade options” all towards compliance with the Notice Requirement.54

    52See Electric Associations at 4-6; Cope at 3; Southern at 2-3.

    53See Electric Associations at 5-6.

    54See Southern at 2-3.

    AGA generally supported the Notice Requirement reporting framework, but commented that it is especially difficult to value many common types of trade options, such as long-term trade options and trade options with open-ended price or quantity terms, towards compliance with the proposed $1 Billion Notice.55

    55See AGA at 5-8.

    The Commission recognizes that the relief provided by eliminating Form TO and part 45 reporting for trade option counterparties that are Non-SD/MSPs would be more meaningful if Non-SD/MSP trade option counterparties are not required to classify, value and track their trade options for the exclusive purpose of complying with the proposed Notice Requirement. The Commission also recognizes that commenters have expressed that trade options, especially trade options that have a long duration or open price or quantity terms, may be difficult to value. Thus, the burdens on Non-SD/MSP trade option counterparties to classify, value and track their trade options towards compliance with the proposed Notice Requirement could be significant, and it is not evident that there are any steps these counterparties could take to more accurately classify, value and track their trade options, given the uncertainties inherent in this type of contract. Therefore, in view of the relatively limited use of such data (which would be submitted in aggregate form and not categorized by commodity or by instrumentation) for surveillance and regulatory oversight purposes, the Commission does not believe that the proposed Notice Requirement is necessary.

    Accordingly, for the reasons set forth above, the Commission has chosen not to adopt as part of this final rule the proposed Notice Requirement, i.e., the proposed $1 Billion Notice and Alternative Notice requirements.

    B. Revised Recordkeeping Requirements for Trade Option Counterparties That Are Non-SD/MSPs

    The Commission proposed to amend § 32.3(b) to clarify that trade option counterparties that are Non-SD/MSPs need not identify their trade options in all recordkeeping by means of either a USI or UPI, as required by §§ 45.5 and 45.7.56 Rather, with respect to part 45 recordkeeping requirements, the Commission proposed to clarify that trade option counterparties that are Non-SD/MSPs need only comply with the applicable recordkeeping provisions in § 45.2,57 along with the following proposed qualification: The Non-SD/MSP trade option counterparty must obtain an LEI pursuant to § 45.6 and provide such LEI to its counterparty if that counterparty is an SD/MSP. This proposed amendment would allow a trade option counterparty that is an SD/MSP to comply with applicable part 45 swap data recordkeeping and reporting obligations by properly identifying its Non-SD/MSP trade option counterparty by that counterparty's LEI.58

    56See 80 FR at 26204; see also notes 30-32 and accompanying text, supra.

    57 Trade option counterparties that are SD/MSPs shall continue to comply with the swap data recordkeeping requirements of part 45, as they would in connection with any other swap. See 17 CFR 32.3(c).

    58 An SD/MSP that otherwise would report the trade option at issue pursuant to § 32.3(c) is required to identify its counterparty to the trade option by that counterparty's LEI in all recordkeeping as well as all swap data reporting. See 17 CFR 23.201, 23.204, and 45.6.

    Electric Associations, COPE, IECA and Southern each recommended further reduction of trade option recordkeeping requirements for Non-SD/MSPs.59 Electric Associations commented that various types of end-users currently maintain records of trade options in “different systems, in different formats and for different retention periods than transactions referencing the same commodities that are intended to be financially settled, causing such records to not be retrievable in the same manner or format, or as quickly, as financially settled transactions.” 60 COPE commented that compliance with part 45 recordkeeping requirements in connection with trade options is burdensome for end-users, who must “identify and segregate trade options from other physical contracts, maintain the material required by CFTC regulations, and be prepared to provide requested data to the CFTC within five days.” 61 COPE recommended allowing physical end-users to keep records of trade options “in a manner no less stringent than that used for their physical commercial agreements, with an obligation to provide copies to the CFTC in a commercially reasonable time upon request.” 62 Southern recommended that the Commission provide further relief by permitting Non-SD/MSPs to “maintain the documents that they would otherwise already maintain in their ordinary course of business.” 63 Southern further commented that the recordkeeping requirements under § 45.2(b) are “very broad and vague,” and that carrying forward these requirements will result in a “tremendous burden” on Non-SD/MSPs, who “will need to undergo a significant effort to ensure `full, complete, and systematic records, together will all pertinent data and memoranda' are maintained for every trade option.” 64 The Commission did not receive any comments specifically addressing the requirement that a Non-SD/MSP trade option counterparty would need to obtain an LEI pursuant to § 45.6 and provide such LEI to its counterparty if that counterparty is an SD/MSP.

    59See Electric Associations at 10-11; COPE at 2-3; IECA at 2-5; Southern at 4-5.

    60 Electric Associations at 11.

    61 COPE at 2-3.

    62Id. at 3.

    63 Southern at 4.

    64Id.

    The Commission recognizes that requiring Non-SD/MSPs to comply with the swap data recordkeeping requirements of part 45 in connection with their trade options may result in burdens and costs for such participants, especially for small end users. The Commission believes that it would be appropriate to alleviate such burdens and costs for these market participants, without compromising the Commission's ability to properly oversee trade option activities. In particular, the Commission expects that Non-SD/MSPs maintain records concerning their trade option activities in the ordinary course of business. Furthermore, the Commission will remain able to collect information concerning trade option activities as necessary. For example, where a Non-SD/MSP enters into a trade option opposite an SD/MSP, the SD/MSP counterparty must continue to comply with all applicable swaps-related recordkeeping and reporting requirements of part 45 with respect to that transaction.65 In order to facilitate such reporting and recordkeeping by trade option counterparties that are SD/MSPs, the Commission will adopt, as proposed, the requirement that a Non-SD/MSP trade option counterparty must obtain an LEI pursuant to § 45.6 and provide such LEI to its counterparty if that counterparty is an SD/MSP. As stated above, this requirement allows an SD/MSP to properly identify its Non-SD/MSP trade option counterparty by that counterparty's LEI in all swap data recordkeeping and reporting relating to that transaction.66 As a result, the Commission will be able to gain insight into any trade option entered into by a Non-SD/MSP opposite a counterparty that is an SD/MSP. Additionally, under § 32.3(c)(2)[renumbered § 32.3(c)(1)], Non-SD/MSPs that are clearing members shall continue to comply with part 20 reporting and recordkeeping requirements in connection with their trade option activities.67

    65 Trade option counterparties that are SD/MSPs shall continue to comply with the swap data recordkeeping and reporting requirements of part 45, as they would in connection with any other swap. See 17 CFR 32.3(c).

    66See 17 CFR 32.3(c).

    67 17 CFR 32.3(c)(1); 17 CFR part 20. A clearing member, as defined in § 20.1, means any person who is a member of, or enjoys the privilege of, clearing trades in its own name through a clearing organization. Section 20.6(d) requires that all books and records required to be kept under § 20.6 shall be furnished upon request to the Commission along with any pertinent information concerning such positions, transactions, or activities. The recordkeeping duties imposed by § 20.6 are in accordance with the requirements of Regulation 1.31. See 17 CFR 20.6(a)-(b).

    Accordingly, the Commission is amending regulation § 32.3(b) by deleting the requirement that a Non-SD/MSP must comply with the recordkeeping requirements of part 45 (as otherwise applicable to any swap) in connection with its trade option activities, subject to the exception that a Non-SD/MSP trade option counterparty must obtain an LEI pursuant to § 45.6 and provide such LEI to its counterparty if that counterparty is an SD/MSP.

    C. Applicability of Position Limits to Trade Options

    Existing Commission regulation § 32.3(c)(2) subjects trade options to part 151 position limits, to the same extent that part 151 would apply in connection with any other swap.68 However, as stated above, part 151 has been vacated.69 Furthermore, trade options are not subject to position limits under the Commission's current part 150 position limit regime.70

    68See 17 CFR 32.3(c)(2).

    69See note 13 and accompanying text, supra.

    70 Under current § 150.2, position limits apply to agricultural futures in nine listed commodities and options on those futures. Since trade options are not options on futures, § 150.2 position limits do not currently apply to such transactions. See 17 CFR 150.2.

    In the Proposal, the Commission proposed to amend existing § 32.3(c) by deleting § 32.3(c)(2), including the reference to vacated part 151, because position limits do not currently apply to trade options. The Commission explained in the Proposal that this would not be a substantive change.71 Accordingly, for the reasons stated above, the Commission is deleting the cross-reference to vacated part 151 position limits from § 32.3(c), as proposed.

    71 80 FR at 26204-05.

    Several commenters requested assurance from the Commission that federal speculative position limits will not apply to trade options in the future as a result of the pending position limits rulemaking, which remains in the proposed rulemaking stage.72 The Commission believes that federal speculative position limits should not apply to trade options. To that end, the Commission intends to address this matter in the context of the proposed rulemaking on position limits, if such rule is adopted.

    72See, e.g., AGA at 8-9; Electric Associations at 14-15; CEWG at 2-3; APGA at 2; NGSA at 2; IECA at 6-7; Southern at 5-6. On December 12, 2013, the Commission published in the Federal Register a notice of proposed rulemaking to establish speculative position limits for 28 exempt and agricultural commodity futures and options contracts and the physical commodity swaps that are economically equivalent to such contracts, including trade options. See Position Limits for Derivatives, Proposed Rules, 78 FR 75680 (Dec. 12, 2013) (“Position Limits Proposal”). Therein, the Commission proposed replacing the cross-reference to vacated part 151 in § 32.3(c)(2) with a cross-reference to amended part 150 position limits. See 78 FR at 75711. As an alternative in the Position Limits Proposal, the Commission proposed to exclude trade options from speculative position limits and proposed an exemption for commodity derivative contracts that offset the risk of trade options.

    III. Related Matters A. Cost Benefit Analysis 1. Background

    As discussed above, the Commission is adopting amendments to the trade option exemption in § 32.3 that: (1) Eliminate the part 45 reporting requirement for trade option counterparties that are Non-SD/MSPs; (2) eliminate the Form TO filing requirement; (3) eliminate the part 45 recordkeeping requirements for trade option counterparties that are Non-SD/MSPs, with the exception being that a Non-SD/MSP trade option counterparty must obtain an LEI pursuant to § 45.6 and provide such LEI to its counterparty if that counterparty is an SD/MSP; and (4) eliminate reference to the now-vacated part 151 position limits. In issuing this final rule, the Commission has reviewed all relevant comment letters and taken into account significant issues raised therein.73

    73See note 35 and accompanying text, supra.

    The Commission believes that the baseline for this cost and benefit consideration is existing § 32.3. Although No-Action Letter 13-08, as discussed above, has offered no-action relief that is similar to certain aspects of the relief provided by this final rule, as a no-action letter, it only represents the position of the issuing Division or Office and cannot bind the Commission or other Commission staff.74 Consequently, the Commission believes that No-Action Letter 13-08 should not set or affect the baseline against which the Commission considers the costs and benefits of this final rule.

    74See 17 CFR 140.99(a)(2). See also No-Action Letter 13-08 at 5.

    In the Proposal, the Commission invited comment on all aspects of its consideration of the costs and benefits associated with the Proposal, and the five factors the Commission is required to consider under CEA section 15(a). The Commission did not receive any comments from the public in this regard.

    2. Costs

    The Commission has considered whether elimination of part 45 reporting and recordkeeping requirements for trade option counterparties that are Non-SD/MSPs and the Form TO filing requirement could potentially reduce the amount of information available to the Commission to fulfill its regulatory mission, which could be a cost to the markets or the general public. However, the Commission shall remain able to collect sufficient information concerning trade option activities to fulfill its regulatory mission.75

    75See notes 65-67 and accompanying text.

    The Commission expects that Non-SD/MSPs will continue to maintain records concerning their trade option activities in the ordinary course of business. Additionally, where a Non-SD/MSP enters into a trade option opposite an SD/MSP, the SD/MSP counterparty must continue to comply with all applicable swaps-related recordkeeping and reporting requirements of part 45 with respect to that transaction. In order to facilitate such reporting and recordkeeping by trade option counterparties that are SD/MSPs, the Commission has adopted a requirement in amended § 32.3(b) that a Non-SD/MSP trade option counterparty must obtain an LEI pursuant to § 45.6 and provide such LEI to its counterparty if that counterparty is an SD/MSP. As stated above, this requirement allows an SD/MSP to properly identify its Non-SD/MSP trade option counterparty by that counterparty's LEI in all swap data recordkeeping and reporting.76 Thus, the Commission may continue to gain insight into any trade option entered into by a Non-SD/MSP opposite a counterparty that is an SD/MSP. Furthermore, under § 32.3(c)(1), Non-SD/MSPs that are clearing members shall continue to comply with part 20 reporting and recordkeeping requirements in connection with their trade option activities. Therefore, the Commission believes that this final rule will not impose any additional costs on the markets themselves, or on the general public.

    76See 17 CFR 32.3(b).

    3. Benefits

    The Commission believes that this final rule has the benefit of reducing the regulatory burdens imposed by § 32.3(b), particularly through the elimination of part 45 reporting and recordkeeping requirements for trade option counterparties that are Non-SD/MSPs and the Form TO filing requirement, each of which commenters have described as burdensome.77

    77See notes 39, 42-46, and 59-64, and accompanying text, supra.

    4. Section 15(a) Factors

    Section 15(a) of the CEA requires the Commission to consider the costs and benefits of its actions before promulgating a regulation under the CEA or issuing certain orders.78 Section 15(a) further specifies that the costs and benefits shall be evaluated in light of five broad areas of market and public concern: (1) Protection of market participants and the public; (2) efficiency, competitiveness, and financial integrity of futures markets; (3) price discovery; (4) sound risk management practices; and (5) other public interest considerations. The Commission considers the costs and benefits resulting from its discretionary determinations with respect to the section 15(a) factors.

    78 7 U.S.C. 19(a).

    a. Protection of Market Participants and the Public

    The Commission recognizes that there may be trade-offs between reducing regulatory burdens and ensuring that the Commission has sufficient information to fulfill its regulatory mission. As discussed above, the amendments to § 32.3 reduce some of the regulatory burdens on end users while still maintaining the Commission's insight into the market for trade options, as necessary, to protect the public.

    b. Efficiency, Competitiveness, and Financial Integrity of Markets

    The Commission believes that the amendments to § 32.3 will reduce reporting and recordkeeping burdens on Non-SD/MSPs in the market for trade options, and will allow them to reallocate resources dedicated to trade options reporting to other more efficient purposes. Despite the deletion of swaps-related recordkeeping requirements in connection with trade options between two Non-SD/MSP counterparties, the Commission shall remain able to collect information concerning trade options as necessary to use in its market oversight role, thereby fulfilling the purposes of the CEA.79

    79See, e.g., 7 U.S.C. 5 (stating that it is a purpose of the CEA to deter disruptions to market integrity). See also notes 65-67 and accompanying text.

    The Commission believes that the amendments to § 32.3 will not have any competitiveness impact because the amendments apply to all Non-SD/MSP trade option counterparties in the same way. Although the obligations of SD/MSPs under the amended rule differ from those of Non-SD/MSPs, the Commission does not believe that these differences relate to any factors of competition between the two types of trade option counterparties.

    c. Price Discovery

    The Commission believes that the amendments to § 32.3 will likely not have a significant impact on price discovery. Given that trade options are not subject to the real-time reporting requirements applicable to other swaps, meaning that current prices of consummated trade options are likely not available to many market participants, the Commission believes any effect on price discovery will be negligible.

    d. Sound Risk Management Practices

    The Commission believes that this final rule will not have a meaningful adverse effect on the risk management practices of the affected market participants and end users. Although the final rule is intended to reduce some of the regulatory burdens on certain market participants and end users, the Commission expects that where two Non-SD/MSPs enter into a trade option with one another, each participant will continue to maintain records concerning that contract, and its exercise, in its ordinary course of business. Furthermore, the Commission shall remain able to collect information concerning trade options as necessary to fulfill its regulatory mission.

    e. Other Public Interest Considerations

    The Commission has not identified any other public interest considerations for this final rule. As noted above, these amendments to § 32.3 will reduce some regulatory burdens while maintaining the Commission's access to information to fulfill its regulatory mission.

    B. Regulatory Flexibility Analysis

    The Regulatory Flexibility Act (“RFA”) requires that agencies consider whether the rules they issue will have a significant economic impact on a substantial number of small entities and, if so, provide a regulatory flexibility analysis respecting the impact.80 The final rule, in amending § 32.3, will affect the recordkeeping and reporting requirements for Non-SD/MSP counterparties relying on the trade option exemption in § 32.3. Pursuant to the eligibility requirements in § 32.3(a), such a Non-SD/MSP may be an ECP and/or a commercial party (i.e., a producer, processor, or commercial user of, or a merchant handling the exempt or agricultural commodity that is the subject of the commodity option transaction, or the products or by-products thereof) offering or entering into the trade option solely for purposes related to its business as such. Although the Commission has previously determined that ECPs are not small entities for RFA purposes,81 the Commission is not in a position to determine whether non-ECP commercial parties affected by the amendments would include a substantial number of small entities on which the rule would have a significant economic impact because § 32.3 does not subject such entities to a minimum net worth requirement, allowing commercial entities of any economic status to enter into exempt trade options. Therefore, pursuant to 5 U.S.C. 604, the Commission offers this regulatory flexibility analysis addressing the impact of the proposal on small entities:

    80See 5 U.S.C. 601 et seq.

    81See Opting Out of Segregation, 66 FR 20740, 20743 (Apr. 25, 2001).

    (1) A Statement of the Need for, and Objectives of, the Rule.

    The Commission is taking this regulatory action to modify the trade option exemption in § 32.3 in response to comments from Non-SD/MSPs that the regulatory burdens currently imposed by § 32.3 are unnecessarily burdensome. The objective for issuing this rule is to reduce the recordkeeping and reporting obligations for trade option counterparties that are Non-SD/MSPs. As stated above, the legal basis for the rule is the Commission's plenary options authority in CEA section 4c(b).

    (2) Summary of the significant issues raised by public comment on the Commission's initial analysis, the Commission's assessment of such issues, and a statement of any changes made as a result of such comments.

    The Commission did not receive any comment on the initial regulatory flexibility analysis.

    (3) A description of, and an estimate of, the number of small entities to which the rule will apply or an explanation of why no such estimate is available.

    The small entities to which the rule may apply are those commercial parties that would not qualify as ECPs and/or that fall within the definition of a “small entity” under the RFA, including size standards established by the Small Business Administration.82 Although more than 300 Non-SD/MSPs have reported their use of trade options to the Commission annually through Form TO, the limited information provided by Form TO is not sufficient for the Commission to determine whether and how many of those Non-SD/MSPs qualify as small entities under the RFA.

    82See id. See also 5 U.S.C. 601(3) (defining “small business” to have the same meaning as the term “small business concern” in the Small Business Act); 15 U.S.C. 632(a)(1) (defining “small business concern” to include an agricultural enterprise with annual receipts not in excess of $750,000); 13 CFR 121.201 (establishing size standards for small business concerns).

    (4) A description of the projected reporting, recordkeeping, and other compliance requirements of the rule, including an estimate of the classes of small entities which will be subject to the requirement and the type of professional skills necessary for preparation of the report or record.

    The rule will relieve trade option counterparties that are Non-SD/MSPs, which may include small entities, from certain recordkeeping and reporting requirements that would otherwise apply to them in connection with their trade option activities, such as part 45 reporting and recordkeeping requirements, and Form TO reporting requirements.

    (5) A description of any significant alternatives to the rule which accomplish the stated objectives of applicable statutes and which minimize any significant economic impact of the rule on small entities.

    A potential alternative to relieving Non-SD/MSPs, which may include small entities, from certain recordkeeping and reporting requirements would be to either (1) not amend the current rule, which would maintain certain recordkeeping and reporting requirements that Non-SD/MSPs have represented are onerous, or (2) create a rule with more specific reporting and recordkeeping parameters for specific entities. The Commission believes that this final rule will have a positive economic impact on Non-SD/MSPs that are small entities because it would generally relax reporting and recordkeeping requirements across all trade option counterparties that are Non-SD/MSPs.

    Therefore, the Chairman, on behalf of the Commission, hereby certifies pursuant to 5 U.S.C. 605(b) that this final rule will not have a significant economic impact on a substantial number of small entities.

    C. Paperwork Reduction Act

    The purposes of the Paperwork Reduction Act of 1995 (“PRA”) are, among other things, to minimize the paperwork burden to the private sector, ensure that any collection of information by a government agency is put to the greatest possible uses, and minimize duplicative information collections across the government.83 The PRA applies to all information, “regardless of form or format,” whenever the government is “obtaining, causing to be obtained [or] soliciting” information, and includes required disclosure to third parties or the public, of facts or opinions, when the information collection calls for answers to identical questions posed to, or identical reporting or recordkeeping requirements imposed on, ten or more persons.84 The PRA requirements have been determined to include not only mandatory but also voluntary information collections, and include both written and oral communications.85 Under the PRA, an agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid control number from the Office of Management and Budget (“OMB”).

    83See 44 U.S.C. 3501.

    84See 44 U.S.C. 3502.

    85See 5 CFR 1320.3(c)(1).

    The Commission believes that this final rule will not impose any new information collection requirements that require approval of OMB under the PRA. As a general matter, the final rule relaxes reporting and recordkeeping requirements for Non-SD/MSPs entering into trade options in connection with their respective businesses, including the withdrawal and removal of Form TO. Additionally, the Commission has chosen not to adopt as part of this final rule the proposed Notice Requirement, i.e., the proposed $1 Billion Notice and Alternative Notice requirements. Since this final rule does not impose any new information collection requirements, the final rule therefore does not result in the creation of any new information collection subject to OMB review or approval under the PRA. Furthermore, the Commission believes that this final rule will not cause a material net reduction in the current part 45 PRA burden estimates (OMB control number 3038-0096) to the extent that such reduced recordkeeping and reporting burdens for trade option counterparties that are Non-SD/MSPs will be insubstantial when compared to the overall part 45 PRA burden estimate as it relates to Non-SD/MSPs.

    Accordingly, since there is no longer a need for Form TO, and since there will not be any other reporting or recordkeeping requirement falling under OMB Control Number 3038-0106, the Commission will file a request with OMB to discontinue OMB Control Number 3038-0106 (Form TO, Annual Notice Filing for Counterparties to Unreported Trade Options).

    List of Subjects in 17 CFR Part 32

    Commodity futures, Consumer protection, Fraud, Reporting and recordkeeping requirements.

    For the reasons stated in the preamble, the Commodity Futures Trading Commission amends 17 CFR part 32 as follows:

    PART 32—REGULATION OF COMMODITY OPTION TRANSACTIONS 1. The authority citation for part 32 continues to read as follows: Authority:

    7 U.S.C. 1a, 2, 6c, and 12a, unless otherwise noted.

    2. Revise § 32.3 to read as follows:
    § 32.3 Trade options.

    (a) Subject to paragraphs (b), (c), and (d) of this section, the provisions of the Act, including any Commission rule, regulation, or order thereunder, otherwise applicable to any other swap shall not apply to, and any person or group of persons may offer to enter into, enter into, confirm the execution of, maintain a position in, or otherwise conduct activity related to, any transaction in interstate commerce that is a commodity option transaction, provided that:

    (1) Such commodity option transaction must be offered by a person that has a reasonable basis to believe that the transaction is offered to an offeree as described in paragraph (a)(2) of this section. In addition, the offeror must be either:

    (i) An eligible contract participant, as defined in section 1a(18) of the Act, as further jointly defined or interpreted by the Commission and the Securities and Exchange Commission or expanded by the Commission pursuant to section 1a(18)(C) of the Act; or

    (ii) A producer, processor, or commercial user of, or a merchant handling the commodity that is the subject of the commodity option transaction, or the products or by-products thereof, and such offeror is offering or entering into the commodity option transaction solely for purposes related to its business as such;

    (2) The offeree must be a producer, processor, or commercial user of, or a merchant handling the commodity that is the subject of the commodity option transaction, or the products or by-products thereof, and such offeree is offered or entering into the commodity option transaction solely for purposes related to its business as such; and

    (3) The commodity option must be intended to be physically settled, so that, if exercised, the option would result in the sale of an exempt or agricultural commodity for immediate or deferred shipment or delivery.

    (b) In connection with any commodity option transaction entered into pursuant to paragraph (a) of this section, every counterparty that is not a swap dealer or major swap participant shall obtain a legal entity identifier pursuant to § 45.6 of this chapter if the counterparty to the transaction involved is a swap dealer or major swap participant, and provide such legal entity identifier to the swap dealer or major swap participant counterparty.

    (c) In connection with any commodity option transaction entered into pursuant to paragraph (a) of this section, the following provisions shall apply to every trade option counterparty to the same extent that such provisions would apply to such person in connection with any other swap:

    (1) Part 20 (Swaps Large Trader Reporting) of this chapter;

    (2) Subpart J of part 23 (Duties of Swap Dealers and Major Swap Participants) of this chapter;

    (3) Sections 23.200, 23.201, 23.203, and 23.204 of subpart F of part 23 (Reporting and Recordkeeping Requirements for Swap Dealers and Major Swap Participants) of this chapter; and

    (4) Section 4s(e) of the Act (Capital and Margin Requirements for Swap Dealers and Major Swap Participants).

    (d) Any person or group of persons offering to enter into, entering into, confirming the execution of, maintaining a position in, or otherwise conducting activity related to a commodity option transaction in interstate commerce pursuant to paragraph (a) of this section shall remain subject to part 180 (Prohibition Against Manipulation) and § 23.410 (Prohibition on Fraud, Manipulation, and other Abusive Practices) of this chapter and the antifraud, anti-manipulation, and enforcement provisions of sections 2, 4b, 4c, 4o, 4s(h)(1)(A), 4s(h)(4)(A), 6, 6c, 6d, 9, and 13 of the Act.

    (e) The Commission may, by order, upon written request or upon its own motion, exempt any person, either unconditionally or on a temporary or other conditional basis, from any provisions of this part, and the provisions of the Act, including any Commission rule, regulation, or order thereunder, otherwise applicable to any other swap, other than § 32.4, part 180 (Prohibition Against Manipulation), and § 23.410 (Prohibition on Fraud, Manipulation, and other Abusive Practices) of this chapter, and the antifraud, anti-manipulation, and enforcement provisions of sections 2, 4b, 4c, 4o, 4s(h)(1)(A), 4s(h)(4)(A), 6, 6c, 6d, 9, and 13 of the Act, if it finds, in its discretion, that it would not be contrary to the public interest to grant such exemption.

    Appendix A to 17 CFR part 32 [Removed]
    3. Remove appendix A to 17 CFR part 32.
    Issued in Washington, DC, on March 16, 2016, by the Commission. Christopher J. Kirkpatrick, Secretary of the Commission. Note:

    The following appendices will not appear in the Code of Federal Regulations.

    Appendices to Trade Options—Commission Voting Summary, Chairman's Statement, and Commissioner's Statement Appendix 1—Commission Voting Summary

    On this matter, Chairman Massad and Commissioners Bowen and Giancarlo voted in the affirmative. No Commissioner voted in the negative.

    Appendix 2—Statement of Chairman Timothy G. Massad

    Today, the CFTC has taken another important step to address the concerns of commercial end-users who rely on the derivatives markets to hedge risk—and who, we should always remember, did not cause the financial crisis. Trade options are a type of commodity option primarily used in the agricultural, energy and manufacturing sectors. Today, the Commission has finalized some amendments to its rules that recognize trade options are different from the swaps that are the focus of the Dodd-Frank reforms. These changes will reduce the burdens on these commercial businesses and allow them to better address commercial risk.

    The action we have taken today will eliminate any potential obligation of commercial participants, who are not swap dealers (SD) or major swap participants (MSP), to report trade options to a swap data repository. We also have eliminated the requirement that these entities must report their trade option activities on “Form TO,” and we have eliminated Form TO altogether. Further, we have ended the swap-related recordkeeping requirements for these end-users in connection with their trade option activities, although when transacting in trade options with SDs or MSPs, they will need to obtain a legal entity identifier. These changes will reduce burdens and costs for trade option counterparties that are not SDs or MSPs and, in particular, for smaller end-users.

    We also have decided not to impose a requirement in the proposed rule that a commercial participant would need to provide notice to the Commission of its trade options activities if such activities have a value of more than $1 billion in any calendar year. This followed careful consideration of the benefits of such information to the Commission, as compared with the difficulties commercial end-users would face in valuating, tracking, and classifying their trade options.

    I'm pleased that today we have addressed some reasonable concerns of commercial end-users who are the critical users of the derivatives markets. This is just one of the many actions we have taken in this regard. We will continue to evaluate our rules with an eye towards the concerns of these businesses. I thank my fellow Commissioners for supporting today's action.

    Appendix 3—Concurring Statement of Commissioner Sharon Y. Bowen

    Our ruling today provides additional clarity for trade options, but I encourage market participants to look at it closely.

    Trade options have been caught in a difficult legal bind. Congress sought to ensure that people could not evade our swaps regulations. It did so by both having a very broad definition of a swap, while also limiting this Commission's authority to exempt swaps by regulation.

    Fortunately, however, Congress preserved the Commission's authority to exempt trade options, which is the authority we are once again using today. Importantly, this exemption provides additional legal certainty that our interpretations cannot. But we cannot overrule the Commodity Exchange Act with regulations and interpretations; we will always be bound by that statute. Therefore, I want to caution anyone tempted to rely on an interpretation to avoid CFTC jurisdiction when it comes to options.

    I fully recognize the difficulty in distinguishing between different types of physical contracts. If a particular contract or an element of a contract serves an economic purpose similar to an option, I believe the best course of action is to exercise caution and not assume your contract is outside of our jurisdiction based on an interpretation. While it may seem fine for a person using these contracts to hope that the interpretation is not called into question, I believe it would be wise, as a backstop, to make sure it also falls within the trade option exemption.

    [FR Doc. 2016-06260 Filed 3-18-16; 8:45 am] BILLING CODE 6351-01-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration 21 CFR Part 14 [Docket No. FDA-2016-N-0001] Patient Engagement Advisory Committee AGENCY:

    Food and Drug Administration, HHS.

    ACTION:

    Final rule.

    SUMMARY:

    The Food and Drug Administration (FDA) is amending the standing advisory committees' regulations to add the Patient Engagement Advisory Committee.

    DATES:

    This rule is effective March 21, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Letise Williams, Office of Center Director, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Silver Spring, MD 20993, email: [email protected], 301-796-8398.

    SUPPLEMENTARY INFORMATION:

    The Patient Engagement Advisory Committee (the Committee) was established on October 6, 2015 (80 FR 57007, September 21, 2015).

    The Committee will provide advice to the Commissioner of Food and Drugs (the Commissioner), or designee, on complex issues relating to medical devices, regulation of devices, and their use by patients.

    The Committee will be composed of a core of nine voting members including the Chair. Members and the Chair are selected by the Commissioner or designee from among authorities who are knowledgeable in areas such as clinical research, primary care patient experience, and healthcare needs of patient groups in the United States, or who are experienced in the work of patient and health professional organizations, methodologies for eliciting patient preferences, and strategies for communicating benefits, risks, and clinical outcomes to patients and research subjects. Members will be invited to serve for overlapping terms of up to 4 years. Almost all non-Federal members of this committee serve as Special Government Employees. The core of voting members may include one technically qualified member, selected by the Commissioner or designee, who is identified with consumer interests and is recommended by either a consortium of consumer-oriented organizations or other interested persons.

    The function of the Committee is to provide advice to the Commissioner on complex issues relating to medical devices, the regulation of devices, and their use by patients. Agency guidance and policies, clinical trial or registry design, patient preference study design, benefit-risk determinations, device labeling, unmet clinical needs, available alternatives, patient reported outcomes, and device-related quality of life or health status issues are among the topics that may be considered by the Committee. The Committee provides relevant skills and perspectives in order to improve communication of benefits, risks, and clinical outcomes, and increase integration of patient perspectives into the regulatory process for medical devices. It performs its duties by identifying new approaches, promoting innovation, recognizing unforeseen risks or barriers, and identifying unintended consequences that could result from FDA policy.

    The Committee name and function were established with the Committee charter on October 6, 2015. Therefore, the Agency is amending 21 CFR 14.100 to add the Committee name and function to its current list as set forth in the regulatory text of this document.

    Under 5 U.S.C. 553(b)(3)(B) and (d) and 21 CFR 10.40(d) and (e), the Agency finds good cause to dispense with notice and public comment procedures and to proceed to an immediate effective date on this rule. Notice and public comment and a delayed effective date are unnecessary and are not in the public interest as this final rule is merely codifying the addition of the name and function of the Patient Engagement Advisory Committee to reflect the committee charter.

    Therefore, the Agency is amending 21 CFR 14.100 to add paragraph (d)(5) as set forth in the regulatory text of this document.

    List of Subjects in 21 CFR Part 14

    Administrative practice and procedure, Advisory committees, Color additives, Drugs, Radiation protection.

    Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs, 21 CFR part 14 is amended as follows:

    PART 14—PUBLIC HEARING BEFORE A PUBLIC ADVISORY COMMITTEE 1. The authority citation for 21 CFR part 14 continues to read as follows: Authority:

    5 U.S.C. App. 2; 15 U.S.C. 1451-1461; 21 U.S.C. 41-50, 141-149, 321-394, 467f, 679, 821, 1034; 28 U.S.C. 2112; 42 U.S.C. 201, 262, 263b, 264; Pub. L. 107-109; Pub. L. 108-155; Pub. L. 113-54.

    2. In § 14.100, add paragraph (d)(5) to read as follows:
    § 14.100 List of standing advisory committees.

    (d) * * *

    (5) Patient Engagement Advisory Committee.

    (i) Date Established: October 6, 2015.

    (ii) Function: Provides advice to the Commissioner on complex issues relating to medical devices, the regulation of devices, and their use by patients. Agency guidance and policies, clinical trial or registry design, patient preference study design, benefit-risk determinations, device labeling, unmet clinical needs, available alternatives, patient reported outcomes, and device-related quality of life or health status issues are among the topics that may be considered by the Committee. The Committee provides relevant skills and perspectives in order to improve communication of benefits, risks, and clinical outcomes, and increase integration of patient perspectives into the regulatory process for medical devices. It performs its duties by identifying new approaches, promoting innovation, recognizing unforeseen risks or barriers, and identifying unintended consequences that could result from FDA policy.

    Dated: March 15, 2016. Jill Hartzler Warner, Associate Commissioner for Special Medical Programs.
    [FR Doc. 2016-06240 Filed 3-18-16; 8:45 am] BILLING CODE 4164-01-P
    DEPARTMENT OF THE INTERIOR Bureau of Indian Affairs 25 CFR Part 169 [156A2100DD/AAKC001030/A0A501010.999900 253G] RIN 1076-AF20 Rights-of-Way on Indian Land AGENCY:

    Bureau of Indian Affairs, Interior.

    ACTION:

    Final rule; extension of effective date and compliance date.

    SUMMARY:

    The Bureau of Indian Affairs (BIA) is announcing the extension of the effective date of the final rule published November 19, 2015 governing rights-of-way on Indian land, which was scheduled to take effect on December 21, 2015, and later extended to March 21, 2016. The final rule will now take effect on April 21, 2016. The BIA is also announcing an extension of the compliance date by which documentation of past assignments must be submitted from the extended date of July 17, 2016, to August 16, 2016. The final rule comprehensively updates and streamlines the process for obtaining Bureau of Indian Affairs (BIA) grants of rights-of-way on Indian land and BIA land, while supporting tribal self-determination and self-governance.

    DATES:

    The effective date of the final rule published on November 19, 2015 (80 FR 72492) is extended until April 21, 2016. The compliance date for submission of documentation of past assignments is extended until August 16, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Ms. Elizabeth Appel, Director, Office of Regulatory Affairs & Collaborative Action, (202) 273-4680; [email protected]

    SUPPLEMENTARY INFORMATION:

    On November 19, 2015, BIA published a final rule addressing rights-of-way on Indian land and BIA land. See 80 FR 72492. In a document published December 21, 2015, BIA extended the effective date of the rule to March 21, 2016, in response to requests from tribes and industry in order to provide additional time to prepare for implementation to ensure compliance. See 80 FR 79258. BIA is again extending the effective date of the final rule. This document extends the effective date of the final rule to April 21, 2016, and likewise extends the deadline for providing BIA with documentation of past assignments to August 16, 2016. The substance of the rule remains unchanged and this will be the final extension of the effective date.

    The BIA has determined that the extension of the effective date and compliance date without prior public notice and comment is in the public interest because it would allow more time for the public to comply with the rule. This is a rule of agency procedure or practice that is exempt from notice and comment rulemaking under 5 U.S.C. 553(b)(A).

    Correction

    In FR Rule Doc. No. 2015-28548, published November 19, 2015, at 80 FR 72492, make the following corrections:

    1. On page 72537, in the center and right columns, in revised § 169.7, remove the date “December 21, 2015” wherever it appears and add in its place “April 21, 2016”. 2. On page 72537, in the right column, in paragraph (d) of revised § 169.7, remove the date “April 18, 2016” and add in its place “August 16, 2016”. Dated: March 15, 2016. Lawrence S. Roberts, Acting Assistant Secretary—Indian Affairs.
    [FR Doc. 2016-06269 Filed 3-18-16; 8:45 am] BILLING CODE 4337-15-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 117 [Docket No. USCG-2016-0183] Drawbridge Operation Regulation; Trent River, New Bern, NC AGENCY:

    Coast Guard, DHS.

    ACTION:

    Notice of deviation from drawbridge regulation.

    SUMMARY:

    The Coast Guard has issued a temporary deviation from the operating schedule that governs the US 70 (Alfred C. Cunningham) Bridge across the Trent River, mile 0.0, at New Bern, NC. The deviation is necessary to ensure the safety of attendees to the annual Mumfest celebration. This deviation allows the bridge draw span to remain in the closed to navigation position at two hour increments to accommodate the free movement of pedestrians and vehicles during the annual Mumfest celebration.

    DATES:

    This deviation is effective from 9 a.m. on October 8, 2016 to 7 p.m. on October 9, 2016.

    ADDRESSES:

    The docket for this deviation, [USCG-2016-0183] is available at http://www.regulations.gov. Type the docket number in the “SEARCH” box and click “SEARCH”. Click on Open Docket Folder on the line associated with this deviation.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions on this temporary deviation, call or email Mrs. Traci Whitfield, Bridge Administration Branch Fifth District, Coast Guard, telephone (757) 398-6629, email [email protected]

    SUPPLEMENTARY INFORMATION:

    The Event Director for the New Bern Mumfest, with approval from the North Carolina Department of Transportation, owner of the drawbridge, has requested a temporary deviation from the current operating regulations set out in 33 CFR 117.843(a) to accommodate safe passage for pedestrians and vehicles during Mumfest.

    The US 70 (Alfred C. Cunningham) Bridge is a double bascule lift bridge and has a vertical clearance in the closed position of 14 feet above mean high water. Under this temporary deviation, the drawbridge will open every two hours, on the hour, from 9 a.m. through 8 p.m. on Saturday, October 8, 2016 and from 9 a.m. through 7 p.m. on Sunday, October 9, 2016. From 8 p.m. on Saturday, October 8, 2016 through 9 a.m. on Sunday, October 9, 2016, the drawbridge will open on signal.

    Vessels able to pass under the bridge in the closed position may do so at anytime. Mariners are advised to proceed with caution. The bridge will be able to open for emergencies and there is no alternate route for vessels unable to pass through the bridge in the closed position. The Coast Guard will also inform the users of the waterways through our Local and Broadcast Notices to Mariners of the change in operating schedule for the bridge so that vessel operators can arrange their transits to minimize any impact caused by the temporary deviation.

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

    Dated: March 16, 2016. Hal R. Pitts, Bridge Program Manager, Fifth Coast Guard District.
    [FR Doc. 2016-06266 Filed 3-18-16; 8:45 am] BILLING CODE 9110-04-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Indian Health Service 42 CFR Part 136 RIN 0917-AA12 Payment for Physician and Other Health Care Professional Services Purchased by Indian Health Programs and Medical Charges Associated With Non-Hospital-Based Care AGENCY:

    Indian Health Service, HHS.

    ACTION:

    Final rule with comment period.

    SUMMARY:

    The Secretary of the Department of Health and Human Services (HHS) hereby issues this final rule with comment period to implement a methodology and payment rates for the Indian Health Service (IHS) Purchased/Referred Care (PRC), formerly known as the Contract Health Services (CHS), to apply Medicare payment methodologies to all physician and other health care professional services and non-hospital-based services. Specifically, it will allow the health programs operated by IHS, Tribes, Tribal organizations, and urban Indian organizations (collectively, I/T/U programs) to negotiate or pay non-I/T/U providers based on the applicable Medicare fee schedule, prospective payment system, Medicare Rate, or in the event of a Medicare waiver, the payment amount will be calculated in accordance with such waiver; the amount negotiated by a repricing agent, if applicable; or the provider or supplier's most favored customer (MFC) rate. This final rule will establish payment rates that are consistent across Federal health care programs, align payment with inpatient services, and enable the I/T/U to expand beneficiary access to medical care. A comment period is included, in part, to address Tribal stakeholder concerns about the opportunity for meaningful consultation on the rule's impact on Tribal health programs.

    DATES:

    Effective date: These final regulations are effective May 20, 2016.

    Comment date: IHS will consider comments on this final rule with comment period received at one of the addresses provided below, no later than May 20, 2016.

    Compliance and applicability dates: A health program operated by the IHS or by an urban Indian organization through a contract or grant under Title V of the Indian Health Care Improvement Act (IHCIA), Public Law 97-437 must implement the rates specified herein no later than March 21, 2017. The rule will apply to outpatient services provided after May 20, 2016. The rule will apply to inpatient services with an admission that falls on or after the effective date of the rule.

    ADDRESSES:

    You may submit comments in one of four ways (please choose only one of the ways listed):

    Electronically. You may submit electronic comments on this regulation to http://regulations.gov. Follow the “Submit a Comment” instructions.

    By regular mail. You may mail written comments to the following address ONLY: Betty Gould, Regulations Officer, Indian Health Service, Office of Management Services, 5600 Fishers Lane, Mailstop 09E70, Rockville, Maryland 20857. Please allow sufficient time for mailed comments to be received before the close of the comment period.

    By express or overnight mail. You may send written comments to the above address.

    By hand or courier. If you prefer, you may deliver (by hand or courier) your written comments before the close of the comment period to the address above.

    If you intend to deliver your comments to the Rockville address, please call telephone number (301) 443-1116 in advance to schedule your arrival with a staff member. Comments will be made available for public inspection at the Rockville address from 8:30 a.m. to 5 p.m., Monday-Friday, no later than three weeks after publication of this notice.

    Because of staff and resource limitations, we cannot accept comments by facsimile (FAX) transmission.

    FOR FURTHER INFORMATION CONTACT:

    Ms. Terri Schmidt, Acting Director, Indian Health Service, Office of Resource Access and Partnerships, 5600 Fishers Lane, Mailstop 10E85-C, Rockville, Maryland 20857, telephone (301) 443-2694. (This is not a toll free number.)

    SUPPLEMENTARY INFORMATION:

    The Consolidated Appropriation Act of 2014 signed by President Obama in January 2014, adopted a new name, Purchased/Referred Care (PRC), for the CHS program. The name change was official with passage of the Fiscal Year (FY) 2014 appropriation. The new name better describes the purpose of the program funding, which is for both purchased care and referred care outside of IHS. The name change does not change the program, and all current policies and practices will continue and is not intended to have any effect on the laws that govern or apply to CHS. IHS will administer PRC in accordance with all laws applicable to CHS. This final rule will use the term PRC.

    I. Background

    On December 5, 2014, the Department published proposed regulations in a Notice of Proposed Rulemaking (NPRM) in the Federal Register (79 FR 72160) to amend the IHS medical regulations at 42 CFR part 136 by adding a new subpart I to apply Medicare payment methodologies to all physician and other health professional services and non-hospital-based services provided through CHS, now PRC, or purchased by urban Indian organizations. In the NPRM, the Department invited the public to comment on the proposed provisions; subsequently, in a Federal Register document published on January 14, 2015 (80 FR 1880), the 45-day comment period was extended to February 4, 2015. Under 42 CFR 136.23, when necessary services are not reasonably accessible or available to IHS beneficiaries, the IHS and Tribes are authorized to pay for medical care provided to IHS beneficiaries by non-IHS or Tribal, public or private health care providers, depending on the availability of funds. Similarly, under section 503 of the IHCIA, 25 U.S.C. 1653, urban Indian organizations may refer eligible urban Indians, as defined under section 4 of the IHCIA, tonon-I/T/U public and private health care providers and, depending on the availability of funds, may also cover the cost of care. The PRC Program is authorized to pay for medical care provided to IHS beneficiaries by non-IHS or Tribal, public or private health care providers, depending on the availability of funds. I/T/Us reimburse for authorized services at the rates provided by contracts negotiated at the local level with individual providers or according to a provider's billed charges. Given the small market share of individual I/T/U programs, I/T/Us historically have paid rates in substantial excess of Medicare's allowable rates or rates paid by private insurers for the same services. Despite establishing medical priorities to cover the most necessary care, IHS is still unable to provide care to all of its beneficiaries. The demand for PRC care consistently exceeds available funding. IHS recently reported to Congress that IHS and tribal PRC programs denied an estimated $760,855,000 for an estimated 146,928 contract care services needed by eligible beneficiaries in FY 2013. This rule finalizes the Medicare-like rates NPRM and ensures PRC programs reimburse non-hospital services, including physician services, at rates comparable to other federal programs; the savings realized by adopting and implementing this rule will increase patient access to care.

    II. Provisions of the Proposed Regulations a. The Proposed Rule

    HHS proposed to amend the regulations at 42 CFR part 136 by adding a new Subpart I to describe the payment methodologies to all physician and health care professional services and all non-hospital-based services that are not covered currently under 42 CFR part 136 subpart D. The final rule would amend the regulation at 42 CFR part 136, by adding a new Subpart I to apply the Medicare payment methodologies to all physician and other health professional services and non-hospital-based services purchased by an IHS or Tribal PRC program, or urban Indian organizations.

    b. Summary of Changes in the Final Rule

    IHS has added an applicability provision in § 136.201. This provision specifies that the rule applies to IHS-operated PRC programs, urban Indian health programs, and Tribally-operated programs, but only to the extent the Tribally-operated programs opt-in to the requirements of the rule. IHS has added a definition section to the rule at § 136.202. In that section, important terms used in the rule are defined, including Notification of a Claim, Provider, Supplier, Referral and Repricing Agent. In § 136.203 (§ 136.201 of the NPRM), flexibility to allow PRC programs to negotiate rates that are higher than Medicare rates is added. With a narrow exception, the discretion to negotiate rates equal to or less than rates accepted by the provider or supplier's MFC is limited. In the absence of a negotiated amount, the amount the provider or supplier bills the general public is eliminated from the methodology and replaced with the amount the provider or supplier accepts from its MFC.

    III. Analysis of and Responses to Public Comments

    The Agency received 57 comments from Tribes, Tribal organizations, medical associations, and individuals. The Agency carefully reviewed the submissions by individuals, groups, Indian and non-Indian organizations. IHS did not consider three of these comments, because they were received after the closing date. Of the 54 timely comments, nine commenters supported the proposed regulation; thirty-eight commenters support the proposed regulation with changes; three commenters did not support the proposed regulation; and four commenters provided general comments.

    Comment: The majority of commenters support the rule as a positive step toward achieving the goal of expanding PRC rates to non-hospital-based providers and suppliers. Many commenters stated the rule's potential impact on individual providers would be diffuse and de minimus and that the proposed rule would provide an enormous benefit to the IHS and Tribal health care programs. Commenters noted that IHS and Tribal health programs often pay higher payment rates than private health insurers and other Federal programs, such as Medicare and the Veterans Health Administration. In addition, many commenters suggested that implementing rates for non-hospital-based providers will increase the volume of services being sought which will result in providers achieving more volume to offset the decrease in rates.

    Response: IHS agrees with the commenters that this rule is necessary and important towards achieving payment parity with other Federal health care programs.

    Comment: There were a number of commenters that support the proposed rule, but with changes. Several commenters expressed the view, that as drafted, the proposed rule does not provide enough flexibility to ensure continued access to care through the PRC program. Specifically, many commenters felt that a rigid take-it-or-leave-it rate structure would result in many health care providers refusing to do business with I/T/Us. Many Tribal stakeholders recommended providing Tribal and urban Indian health programs with the option to negotiate higher rates, but to limit maximum rates to what the provider or supplier would accept from non-governmental payers, including insurers, for the same service. Advocates for non-IHS and Tribal providers also recommended incorporating flexibility to negotiate rates.

    Response: IHS highlighted concerns about the impact the rule could have on access to care in the preamble to the NPRM and was pleased with the thoughtful responses received. IHS agrees with commenters that more flexibility must be built into the rule. IHS also agrees with Tribal stakeholders that Tribes should be provided more flexibility to negotiate rates that exceed Medicare rates and agrees that controls should be put into place to ensure that negotiated rates remain fair and reasonable. Section 136.203 provides that if a specific amount has been negotiated with a specific provider or supplier or its agent by the I/T/U, theI/T/U will pay that amount, provided such amount is equal to or better than the provider or supplier's MFC rate, as evidenced by commercial price lists or paid invoices and other related pricing and discount data, to ensure the I/T/U is receiving a fair and reasonable pricing arrangement. Further, the MFC rate does not apply if the I/T/U determines the prices offered to the I/T/U are fair and reasonable and the purchase of the service is otherwise in the best interest of the I/T/U. It will be incumbent on the provider of services to provide the necessary documentation to ensure the rates charged are fair and reasonable.

    Comment: In addition to the ability to negotiate rates under the rule, several Tribal stakeholders also want an opt-out clause from the proposed rule for Tribal and urban Indian health care programs. The majority of commenters feel Tribal sovereignty and self-determination must also be respected to allow the Tribes the flexibility to negotiate with providers and determine how best to meet the needs of their community when providing health care. They indicated that flexibility is one of the foundational principles underlying the Indian Self-Determination and Education Assistance Act (ISDEAA) and Tribes and Tribal organizations that negotiate agreements under that Act with the IHS should have the right to choose not to apply this new rule.

    Response: IHS agrees with Tribal stakeholders that Tribal health programs should have the option to administer PRC programs outside of the rule. Rather than memorialize this option as an opt-out clause, IHS is finalizing the recommendation as an opt-in provision in section 136.201. The opt-in provision is intended to be consistent with 25 U.S.C. 458aaa-16(e), which provides, with certain exceptions, that Tribes are not subject to rules adopted by the IHS unless they are expressly agreed to by the Tribe in their compact, contract or funding agreement with IHS. Although 25 U.S.C. 458aaa-16(e) only expressly applies to Tribes compacted under Title V of the ISDEAA, IHS is extending opt-in flexibility to Tribes contracted under Title I of the ISDEAA too. IHS is not incorporating a comparable provision allowing urban Indian health programs to opt-in or opt-out of the requirements of the rule. Urban Indian health programs are funded through procurement contracts or grants with IHS, not ISDEAA contracts, and the principles underlying self-determination and the opt-in flexibility do not extend to such agreements.

    Comment: One commenter believes that reducing physician payments will provide a disincentive to participate in the PRC program and will result in less beneficiary access to care.

    Response: IHS acknowledges the implementation of rates could impact access to care, and believe sufficient language has been incorporated to ensure that beneficiary access to care is not compromised.

    Comment: One commenter believes the rule would magnify the existing disparity between the average ambulance provider's total costs and their reimbursement.

    Response: The implementation of the rule is not intended to require a provider or supplier to incur a financial loss. To the extent the Medicare rate structure results in the provider or supplier incurring a financial loss, the flexibility added to the final rule should permit providers and suppliers to negotiate fair and reasonable rates with I/T/Us.

    Comment: The majority of commenters stated that IHS should also engage in provider outreach and monitoring to ensure the rule is effectively implemented. Further, once the final rule is issued, the IHS, in collaboration with Tribes, should develop and issue a “Dear provider letter” for all I/T/Us to educate their network of providers regarding this regulation. Commenters believe that education and outreach to providers will be a critical component in successfully implementing the rule.

    Response: IHS agrees. IHS took similar steps when it promulgated the hospital-based rate under 42 CFR part 136 subpart D. IHS intends to work with Tribes to educate the providers that participate in IHS and Tribal PRC programs.

    Comment: One commenter indicates that some IHS Area Offices utilize case management to better monitor the services that are being purchased through PRC. The commenter proposed that IHS Area Offices have a medical physician on staff for utilization review.

    Response: IHS agrees with the commenter but the proposal offered is beyond the scope of this final rule.

    Comment: One commenter is concerned that the amount a provider “bills the general public” for the same service is too vague. The term “general public” is subject to multiple interpretations. The commenter recommended limiting payment to the amount the provider “accepts as payment for the same service from nongovernmental entities, including insurance providers.”

    Response: IHS agrees with the commenter that the proposed language may be open to more than one interpretation. To avoid multiple interpretations and to align this subsection with others changes made to § 136.203, the reference to “bills the general public” has been deleted and provisions have been inserted providing for payment not to exceed the provider or supplier's MFC rate, as evidenced by commercial price lists or paid invoices and other related pricing and discount data to ensure that the I/T/U is receiving a fair and reasonable pricing arrangement. Additionally, in the event that a Medicare rate does not exist for an authorized item or service, and no other payment methodology provided by the rule is applicable, IHS has included a provision in 136.203(a)(3) that authorizes payment at 65% of authorized charges.

    Comment: The majority of commenters believe the rule should not imply that professional services are never covered by the existing PRC regulations. The current PRC rate regulations apply to “all Medicare participating hospitals, which are defined for purposes of that subpart to include all departments and provider-based facilities of hospitals.” The commenters believe this includes physicians and other health care professionals if they are employed directly by the hospital or even “under arrangements.”

    Response: The PRC rate regulations at part 136 subpart D apply to hospitals and critical access hospitals pursuant to section 1866(a)(1)(U) of the Social Security Act which requires providers to agree to provide services under the Contract Health Services, now PRC, program or other programs funded by IHS through the execution of a Medicare participating provider agreement. The agreement executed by hospitals and critical access hospitals under section 1866 does not govern payment for professional services under Medicare, even for services provided by physician employees of a hospital or for “billing under arrangements,” and, accordingly, does not generally govern the acceptance of payment for services under Medicare Part B. To eliminate any confusion, the terms Supplier and Provider have been defined in § 136.201 to only include entities that are not subject to Part 136 Subpart D. Supplier means a physician or other practitioner, a facility, or other entity (other than a provider) not already governed by or subject to 42 CFR part 136 subpart D, that furnishes items or services under this new Subpart. Provider, as used in this subpart only, means a provider of services not governed by or subject to 42 CFR part 136 subpart D, and may include a skilled nursing facility, comprehensive outpatient rehabilitation facility, home health agency, or hospice program.

    Comment: The majority of commenters requested training for Tribes. Many commenters suggested IHS develop a training and technical assistance initiative to prepare I/T/U sites to implement the rule. Tribes expressed concern about the lack of training and technical assistance associated with the implementation of the regulation for Payment to Medicare-participating hospitals for authorized CHS (42 CFR 136.30). IHS should work with several software products theI/T/Us can use and commenters recommended that IHS negotiate a volume discount for Tribes to purchase the software.

    Response: IHS agrees that training is necessary to ensure that the rule is implemented properly and effectively. Many suggestions for training, however, are beyond the scope of this final rule and will be addressed through subsequent communication with Tribes.

    Comment: Commenters indicated that IHS should also develop and implement a process in consultation with Tribes to monitor and report on the success of the rule once it is implemented.

    Response: IHS agrees that monitoring the effectiveness of the rule is important. Obtaining data from programs that are implementing the rule is essential to determining its success; however, reporting requirements exceed the scope of this final rule.

    Comment: The majority of commenters stated that the proposed rule would have significant Tribal implications and substantial direct effects on one or more Indian Tribes. As a result, pursuant to the HHS Tribal Consultation Policy, Tribal consultation is required. Tribes stated in their comments that they welcomed the opportunity to comment on the proposed rule through the notice and public comment process required by the Administrative Procedure Act, but they stated that the Director of the IHS must also engage in Tribal consultation on the proposed rule before any action is taken to finalize this rule.

    Response: IHS consulted with Tribes, during listening sessions and other meetings, on whether Tribes thought IHS should pursue applying PRC rates for non-hospital-based services. It has been noted that while these interactions indicated that regulations may have been a good idea, the level of discussion did not get into the complexities of developing a regulation and how such regulations would impact Tribes given the variation in access to specialty care and the number of hospitals across the Indian health system. IHS recognizes that specific provisions of the rule were not developed in consultation with Tribes. In the development of this final rule, however, IHS has collaborated significantly with the Director's PRC Workgroup. The PRC workgroup is composed of technical experts who have a deep understanding of the complexities of administering PRC programs. The rule has been revised to provide the flexibility many Tribal stakeholders have requested, and as finalized, will not apply to any Tribally-operated PRC program until it elects to opt-in in accordance with § 136.201. IHS recognizes that these steps may not relieve all concerns regarding Tribal consultation. Accordingly, IHS is also publishing this final rule with a comment period in which to receive additional feedback from stakeholders, to determine whether any revisions should be made to the rule.

    Comment: One commenter recommended IHS pursue legislation, not a regulation.

    Response: Regulations (or rules) implement the public policy of enacted legislation and establish specific requirements. IHS bases its authority on 42 U.S.C. 2003 to establish the methodology and payment rates for the IHS PRC.

    Comment: One commenter is concerned that there is nothing explicit in the regulation that prevents the provider from avoiding the Medicare rate by choosing not to submit a claim at all, and seeking redress from the patient directly. Because the Medicare rates may be substantially lower than the provider's billed rate, the providers might avoid a PRC claim entirely and bill the patient for the full amount. The commenter is also concerned that more patients will be taken to collection agencies when they cannot afford to pay when the provider bills the patients directly.

    Response: IHS recognizes that the rule does require providers to accept payment from PRC programs and understands that this may on occasion result in patients incurring financial responsibility. IHS beneficiaries already incur financial responsibility for care that IHS cannot cover. In FY 2013, PRC denied an estimated $760,855,000 for an estimated 146,928 services needed by eligible American Indian and Alaska Native individuals. Those numbers only account for IHS administered programs. IHS notes incurring financial responsibility may be avoided by obtaining a PRC authorized referral from IHS prior to treatment. If a referral is issued by IHS, it means that the provider has accepted IHS payment rates, and the patient may not be charged for the service. A definition section was added to the rule at § 136.202 and defined Referral there to clarify for beneficiaries and providers when the requirements for payment acceptance have been triggered. IHS also added a definition for Notification of a Claim, as it too triggers payment acceptance under the rule. Finally, the definition of Repricing Agent was moved to the newly created definition section.

    Comment: One commenter stated there needs to be some oversight by either Centers for Medicare & Medicaid Services or other appropriate agencies written into the regulation that includes a way in which all Medicare-participating medical providers have to, by law, accept PRC patients and accept the rates established by 42 CFR part 136 subpart D.

    Response: No changes will be made as a result of this comment. IHS is promulgating this rule pursuant to its own rulemaking authority, under which there is no basis for another agency to enforce compliance.

    Comment: The majority of commenters state that any changes made, or proposed in the PRC program, must be careful to not adversely impact the effectiveness of the PRC programs. Any change to improve the efficiency or financial operations of the PRC program must be carefully evaluated to ensure that they do not impose additional administrative or financial burdens on the PRC program and the patients they serve. A meaningful and well-intentioned change could actually restrict access and cost the program more resources than it would save.

    Response: IHS believes these concerns have been addressed through the flexibilities which have been added to the final rule, the training IHS intends to offer to PRC administrators, and the outreach and education IHS intends to provide to PRC-participating providers and suppliers.

    Comment: Some commenters expressed serious concern regarding the long delay between publication of the proposed rule and issuing the final rule on limiting charges for services furnished by Medicare participating inpatient hospitals to individuals eligible for care purchased by Indian health programs, as provided for by Sec. 506 of the Medicare Prescription Drug, Improvement, and Modernization Act of 2003. Once this final rule is adopted, they stated, it should be implemented in a reasonable but expedient manner.

    Response: IHS acknowledges the concern and provides that the rule will be effective 60 days from publication and applicable to services provided after the effective date. The rule will apply to outpatient services provided after the effective date of the rule. The rule will apply to inpatient services with an admission that falls on or after the effective date of the rule. However, IHS also recognizes programs may not be fully equipped to implement the rule when it becomes effective. In accordance with 42 CFR 136.201(c), Tribal health programs may choose to opt-in to the rule immediately, or whenever they are able to fully implement the rule. A health program operated by the IHS or by an urban Indian organization through a contract or grant under Title V of the IHCIA, Public Law 94-437 should implement the rule as soon as possible, but must implement the rates specified herein no later than one year from the date of publication in the Federal Register.

    IV. Collection of Information Requirements

    These regulations do not impose any new information collection requirements. Specifically, federal acquisition regulations already govern the collection of contractor pricing data and agency regulations and procedures already govern the collection of information necessary to process claims. The IHS will use the IHS purchase order form number IHS-843 for collection of information. OMB No. 0917-0002.

    V. Regulatory Impact Statement

    The IHS has examined the impact of this final rule as required by Executive Order 12866 (September 1993, Regulatory Planning and Review), the Regulatory Flexibility Act (RFA) (September 19, 1980, Pub. L. 96-354), and the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).

    Executive Order 12866 directs 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). A regulatory impact analysis (RIA) must be prepared for major rules with economically significant effects ($100 million or more in any one year). An April 2013 study released by the Government Accountability Office (GAO) found that if Federal PRC programs had paid Medicare rates for physicians' services in 2010, they could have realized an estimated $32 million in annual savings to pay for additional services.

    The GAO formulated its estimate using actual IHS data, which it obtained from the IHS fiscal intermediary. The GAO narrowed those claims to payments for physician and other nonhospital services. These are the same services at issue in this final rule. Since IHS is the payer of last resort, the GAO excluded services where IHS would not have had primary responsibility, such as services covered by the patient's insurance or another third party payer. The GAO also excluded nonhospital services that were not covered by the Medicare Physician Fee Schedule, as well as anesthesiologists, based upon lack of information to determine comparable Medicare rates.

    Once the GAO had isolated the necessary IHS payment data, the GAO compared the IHS payments to the corresponding rate on the 2010 Medicare Physician Fee Schedule. The GAO adjusted the payment rates according to the physician's approximated geographic location and the service setting, based upon Medicare practice. The GAO also compared the IHS payments to those that would have been made by private insurers using a commercial claims and encounters database. The GAO specifically compared payments for services occurring in the same county to account for any variation in payments due to location, by averaging the rate paid by the private insurers for a service in each county and comparing that average rate with IHS payments in the same county.

    The GAO evaluated the reliability of the data it had relied upon in its estimates, including the IHS claims data, the Medicare Physician Fee Schedule data, and the private insurance database. The GAO reviewed the documentation and discussed the database with officials it considered knowledgeable in this area. The GAO also performed data reliability checks to test the internal consistency and reliability of the data. The GAO determined that the data was sufficiently reliable for its purposes after taking these steps.

    IHS agrees with the methodology utilized by the GAO in its report to select, verify, and compare the necessary elements of the GAO estimate. While the GAO study did not consider the additional flexibility added to this final rule at the request of Tribes or payments made to anesthesiologists, IHS anticipates that most PRC programs and PRC payments under this final rule will closely follow the policy that the GAO considered when developing its study. For this reason, the GAO estimate from the April 2013 study is applicable to the regulatory impact analysis of the final rule.

    In 2014, IHS performed an analysis similar to the GAO study with claims data from the IHS fiscal intermediary for fiscal year (FY) 2012. Instead of analyzing the entire IHS system, as GAO had done with data from 2010, IHS focused on the potential impact to IHS PRC programs in the states of North and South Dakota. IHS was able to closely review the specific contracts in place between IHS and physicians in these two states by narrowing the geographic focus of its analysis. IHS found that North Dakota providers who had an agreement in place with IHS during FY 2012 would have received, on average, 31% less if payment rates for professional services and non-hospital-based care had been capped at the Medicare rate, while South Dakota providers would have experienced the opposite and received, on average, 31% more. It is important to note that, of those providing PRC services in FY 2012, only 15-16% had an agreement with IHS in either of these two states. The remaining 84-85% did not have an agreement in place with IHS in FY 2012 and IHS estimates that these providers would have been paid, on average, 35% less in North Dakota and 52% less in South Dakota if the payments had been capped at Medicare rates. While most of the providers without an agreement would have been paid less under this analysis, IHS estimated that 26% in North Dakota and 21% in South Dakota would have received higher payments, because their billed charges were less than the Medicare rates.

    Overall, IHS estimated that in FY2012, it could have saved $2,074,638.28 in North Dakota and $5,498,089.09 in South Dakota if PRC payments for professional services and non-hospital-based care had been capped at the Medicare rates. IHS noted that referral numbers and authorizations for payment are dependent on appropriation levels for each year. The estimates provided by the IHS study were based upon the specific factors for FY 2012, including rates and funding levels in place at that point in time. The IHS analysis looked closely at the potential impact on providers in these two states, but it did not perform all of the detailed steps taken by the GAO to determine potential savings. Based upon its limited analysis, though, IHS determined that capping the PRC rates for professional services and non-hospital-based care would likely result in savings for IHS PRC programs.

    Both the GAO study and the IHS analysis note the possible consequences of this policy change. The GAO study determined that providers overall would receive less if the payments for professional services and non-hospital-based care are capped at the applicable Medicare rates. The IHS analysis acknowledged that most providers, especially those without a contract with IHS, would receive less under such a policy change, but IHS also found that some providers would receive more per individual claim. During the interview portion of its study, the GAO spoke with a few providers who already had contracts with IHS to be paid at or below Medicare rates. IHS also estimated that adverse impacts on providers could be mitigated by the additional referrals that would result from the PRC savings. In addition to the providers, the GAO study noted possible concerns regarding access to care for patients. The IHS analysis did not delve into this particular issue. However, neither the GAO study nor the IHS analysis anticipated the additional flexibility that would be built into this final rule, as part of the policy change. If IHS finds that providers in particular areas are choosing not to participate based upon the change in policy and the supply of providers in that area is not sufficient to meet demand, thereby impacting patient access to care, IHS has certain flexibility to negotiate higher rates under this final rule to ensure that patients are not negatively impacted. Tribally-operated PRC programs will have the same flexibility, if they choose to opt-in to this final rule. IHS beneficiaries as a whole will be able to benefit from the change in policy, since the savings will allow IHS to provide additional PRC services.

    Although the GAO study and the IHS analysis did not include other types of non-hospital services or funding that goes to Tribal PRC programs, particular Tribes and tribal organizations may decide not to opt-in to this final rule. Even if all of the Tribally-operated PRC programs choose to participate, IHS estimates that the increase in purchasing power brought about by this final rule would be unlikely to exceed $100 million annually. Furthermore, if any PRC programs utilize the additional flexibility added to this final rule and choose to negotiate rates above the applicable Medicare rates, the impact would be even less likely to exceed $100 million annually. Office of Management and Budget (OMB) has determined that this is a significant regulatory action under Executive Order 12866.

    The Secretary has determined this final rule will not have a significant economic impact on a substantial number of small entities as they are defined in the RFA, 5 U.S.C. 601-612. The final rule will not cause significant economic impact on health care providers, suppliers, or entities since only a small portion of the business of such entities concern IHS beneficiaries. The April 2013 study released by the GAO found that of the physicians sampled, the PRC program represented a small portion of their practice and was not a significant source of revenue. Although the sampling of physicians was small, all of the sampled physicians were in the top 25% in terms of volume of paid services covered by PRC. IHS believes the sample to be representative of higher volume practitioners currently providing services paid for by PRC. Accordingly, pursuant to 5 U.S.C. 605(b), the final rule is exempt from the initial and final regulatory flexibility analysis requirements of sections 603 and 604.

    Section 202 of the Unfunded Mandates Reform Act of 1995 requires that agencies assess anticipated costs and benefits before issuing any rule whose requirements mandate expenditure in any one year by State, local, or Tribal governments, in the aggregate, or by the private sector, of $141 million. This proposal would not impose substantial Federal mandates on State, local or Tribal governments or private sector.

    In accordance with the provisions of Executive Order 12866, this regulation was reviewed by OMB.

    List of Subjects in 42 CFR Part 136

    American Indian, Alaska Natives, Health, Medicare.

    Dated: March 11, 2016. Mary Smith, Principal Deputy Director, Indian Health Service. Dated: March 11, 2016. Sylvia M. Burwell, Secretary.

    For the reasons set forth in the preamble, the Indian Health Service is amending 42 CFR part 136 as set forth below:

    PART 136—INDIAN HEALTH 1. The authority citation for part 136 continues to read as follows: Authority:

    25 U.S.C. 13; sec. 3, 68 Stat. 674 (42 U.S.C., 2001, 2003); Sec. 1, 42 Stat. 208 (25 U.S.C. 13); 42 U.S.C. 2001, unless otherwise noted.

    2. Add subpart I, consisting of §§ 136.201 through 136.204, to read as follows: Subpart I—Limitation on Charges for Health Care Professional Services and Non-Hospital-Based Care Sec. 136.201 Applicability. 136.202 Definitions. 136.203 Payment for provider and supplier services purchased by Indian health programs. 136.204 Authorization by urban Indian organizations. Subpart I—Limitation on Charges for Health Care Professional Services and Non-Hospital-Based Care
    § 136.201 Applicability.

    The requirements of this Subpart shall apply to:

    (a) Health programs operated by the Indian Health Service (IHS).

    (b) Health programs operated by an urban Indian organization through a contract or grant under Title V of the Indian Health Care Improvement Act (IHCIA), Public Law 94-437, as amended.

    (c) Health programs operated by an Indian Tribe or Tribal organization pursuant to a contract or compact with the IHS under the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450 et seq.), provided that the Indian Tribe or Tribal organization has agreed in such contract or compact to be bound by this Subpart pursuant to 25 U.S.C. 450l and 458aaa-16(e), as applicable.

    § 136.202 Definitions.

    For purposes of this subpart, the following definitions apply.

    Notification of a claim means, for the purposes of part 136, and also 25 U.S.C. 1621s and 1646, the submission of a claim that meets the requirements of 42 CFR 136.24.

    (1) Such claims must be submitted within the applicable time frame specified by 42 CFR 136.24, or if applicable, 25 U.S.C. 1646, and include information necessary to determine the relative medical need for the services and the individual's eligibility.

    (2) The information submitted with the claim must be sufficient to:

    (i) Identify the patient as eligible for IHS services (e.g., name, address, home or referring service unit, Tribal affiliation),

    (ii) Identify the medical care provided (e.g., the date(s) of service, description of services), and

    (iii) Verify prior authorization by the IHS for services provided (e.g., IHS purchase order number or medical referral form) or exemption from prior authorization (e.g., copies of pertinent clinical information for emergency care that was not prior-authorized).

    (3) To be considered sufficient notification of a claim, claims submitted by providers and suppliers for payment must be in a format that complies with the format required for submission of claims under title XVIII of the Social Security Act (42 U.S.C. 1395 et seq.) or recognized under section 1175 of such Act (42 U.S.C. 1320d-4).

    Provider, as used in this subpart only, means a provider of services not governed by or subject to 42 CFR part 136 subpart D, and may include, but not limited to, a skilled nursing facility, comprehensive outpatient rehabilitation facility, home health agency, or hospice program.

    Referral means an authorization for medical care by the appropriate ordering official in accordance with 42 CFR part 136 subpart C.

    Repricing agent means an entity that offers an IHS, Tribe or Tribal organization, or urban Indian organization (I/T/U) discounted rates from non-I/T/U public and private providers as a result of existing contracts that the non-I/T/U public or private provider may have within the commercial health care industry.

    Supplier, as used in this subpart only, means a physician or other practitioner, a facility, or other entity (other than a provider) not already governed by or subject to 42 CFR part 136 subpart D, that furnishes items or services under this Subpart.

    § 136.203 Payment for provider and supplier services purchased by Indian health programs.

    (a) Payment to providers and suppliers not covered by 42 CFR part 136 subpart D, for any level of care authorized under part 136, subpart C by a Purchased/Referred Care (PRC) program of the IHS; or authorized by a Tribe or Tribal organization carrying out a PRC program of the IHS under the Indian Self-Determination and Education Assistance Act, as amended, Public Law 93-638, 25 U.S.C. 450 et seq.; or authorized for purchase under § 136.31 by an urban Indian organization (as that term is defined in 25 U.S.C. 1603(h)) (hereafter collectively “I/T/U”), shall be determined based on the applicable method in this section:

    (1) If a specific amount has been negotiated with a specific provider or supplier or its agent by the I/T/U, the I/T/U will pay that amount, provided that such amount is equal to or better than the provider or supplier's Most Favored Customer (MFC) rate, as evidenced by commercial price lists or paid invoices and other related pricing and discount data to ensure that the I/T/U is receiving a fair and reasonable price. The MFC rate limitation shall not apply if:

    (i) The prices offered to the I/T/U are fair and reasonable, as determined by the I/T/U, even though comparable discounts were not negotiated; and

    (ii) The award is otherwise in the best interest of the I/T/U, as determined by the I/T/U.

    (2) If an amount has not been negotiated in accordance with paragraph (a)(1) of this section, the I/T/U will pay the lowest of the following amounts:

    (i) The applicable Medicare payment amount, including payment according to a fee schedule, a prospective payment system or based on reasonable cost (“Medicare rate”) for the period in which the service was provided, or in the event of a Medicare waiver, the payment amount will be calculated in accordance with such waiver.

    (ii) An amount negotiated by a repricing agent if the provider or supplier is participating within the repricing agent's network and the I/T/U has a pricing arrangement or contract with that repricing agent.

    (iii) An amount not to exceed the provider or supplier's MFC rate, as evidenced by commercial price lists or paid invoices and other related pricing and discount data to ensure that the I/T/U is receiving a fair and reasonable price, but only to the extent such evidence is reasonably accessible and available to the I/T/U.

    (3) In the event that a Medicare rate does not exist for an authorized item or service, and no other payment methodology provided for in paragraph (a)(1) or (2) of this section are accessible or available, the allowable amount shall be deemed to be 65% of authorized charges.

    (b) Coordination of benefits and limitation on recovery: If an I/T/U has authorized payment for items and services provided to an individual who is eligible for benefits under Medicare, Medicaid, or another third party payer—

    (1) The I/T/U is the payer of last resort under 25 U.S.C. 1623(b);

    (2) If there are any third party payers, the I/T/U will pay the amount for which the patient is being held responsible after the provider or supplier of services has coordinated benefits and all other alternate resources have been considered and paid, including applicable co-payments, deductibles, and coinsurance that are owed by the patient;

    (3) The maximum payment by theI/T/U will be only that portion of the payment amount determined under this section not covered by any other payer;

    (4) The I/T/U payment will not exceed the rate calculated in accordance with paragraph (a) of this section (plus applicable cost sharing); and

    (5) When payment is made by Medicaid it is considered payment in full and there will be no additional payment made by the I/T/U to the amount paid by Medicaid.

    (c) Authorized services: Payment shall be made only for those items and services authorized by an I/T/U consistent with this part 136 or section 503(a) of the IHCIA, Public Law 94-437, as amended, 25 U.S.C. 1653(a).

    (d) No additional charges:

    (1) If an amount has not been negotiated under paragraph (a)(1) of this section, the health care provider or supplier shall be deemed to have accepted the applicable payment amount under paragraph (a)(2) of this section as payment in full if:

    (i) The services were provided based on a Referral, as defined in § 136.202; or,

    (ii) The health care provider or supplier submits a Notification of a Claim for payment to the I/T/U; or

    (iii) The health care provider or supplier accepts payment for the provision of services from the I/T/U.

    (2) A payment made and accepted in accordance with this section shall constitute payment in full and the provider or its agent, or supplier or its agent, may not impose any additional charge—

    (i) On the individual for I/T/U authorized items and services; or

    (ii) For information requested by the I/T/U or its agent or fiscal intermediary for the purposes of payment determinations or quality assurance.

    (e) IHS will not adjudicate a notification of a claim that does not contain the information required by § 136.24 with an approval or denial, except that IHS may request further information from the individual, or as applicable, the provider or supplier, necessary to make a decision. A notification of a claim meeting the requirements specified herein does not guarantee payment.

    (f) No service shall be authorized and no payment shall be issued in excess of the rate authorized by this section.

    § 136.204 Authorization by an urban Indian organization.

    An urban Indian organization may authorize for purchase items and services for an eligible urban Indian as those terms are defined in 25 U.S.C. 1603(f) and (h) according to section 503 of the IHCIA and applicable regulations. Services and items furnished by physicians and other health care professionals and non-hospital-based entities shall be subject to the payment methodology set forth in § 136.203.

    [FR Doc. 2016-06087 Filed 3-18-16; 8:45 am] BILLING CODE 4165-16-P
    FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 64 [CG Docket Nos. 10-51 and 03-123; FCC 16-25] Structure and Practices of the Video Relay Service Program; Telecommunications Relay Services and Speech-to-Speech Services for Individuals With Hearing and Speech Disabilities AGENCY:

    Federal Communications Commission.

    ACTION:

    Final rule.

    SUMMARY:

    In this document, the Commission modifies its four-year compensation rate plan for Video Relay Service (VRS), adopted in 2013, by temporarily “freezing” the rate of compensation paid from the Interstate Telecommunications Relay Services Fund (TRS Fund) to VRS providers handling 500,000 or fewer monthly minutes and directs the TRS Fund administrator to pay compensation to such providers at a rate of $5.29 per VRS minute for a 16-month period.

    DATES:

    Effective April 20, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Robert Aldrich, Consumer and Governmental Affairs Bureau, at 202-418-0996 or email [email protected]

    SUPPLEMENTARY INFORMATION:

    This is a summary of the Commission's Structure and Practices of the Video Relay Service Program and Telecommunications Relay Services and Speech-to-Speech Services for Individuals with Hearing and Speech Disabilities, Report and Order, document FCC 16-25, adopted on March 1, 2016, and released on March 3, 2016, in CG Docket Nos. 10-51 and 03-123. The full text of document FCC 16-25 will be available for public inspection and copying via ECFS, and during regular business hours at the FCC Reference Information Center, Portals II, 445 12th Street SW., Room CY-A257, Washington, DC 20554. Document FCC 16-25 can also be downloaded in Word or Portable Document Format (PDF) at: https://www.fcc.gov/general/disability-rights-office-headlines. 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 Consumer and Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (TTY).

    Final Paperwork Reduction Act of 1995 Analysis

    Document FCC 16-25 does not contain new or modified information collection requirements subject to the Paperwork Reduction Act (PRA) of 1995, Public Law 104-13. In addition, therefore, it does not contain any new or modified 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).

    Congressional Review Act

    The Commission will not send a copy of FCC 16-25 pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A), because the Commission adopted no rules therein, as defined in 5 U.S.C. 804(3). Rather, the Commission modified the rates applicable to compensation paid to VRS providers from the TRS Fund.

    Synopsis

    1. In 2013, the Commission adopted a Report and Order amending its telecommunications relay service (TRS) rules to improve the structure, efficiency, and quality of the VRS program, reduce the risk of waste, fraud, and abuse, and ensure that the program makes full use of advances in commercially-available technology. Structure and Practices of the Video Relay Services Program, Telecommunications Relay Services and Speech-to-Speech Services for Individuals with Hearing and Speech Disabilities, CG Docket Nos. 10-51, 03-123, Report and Order and Further Notice of Proposed Rulemaking, published at 78 FR 40407, July 5, 2013 (VRS Reform Order), and 78 FR 40582, July 5, 2013 (VRS Reform FNPRM), aff'd in part and vacated in part sub nom. Sorenson Communications, Inc. v. FCC, 765 F.3d 37 (D.C. Cir. 2014) (Sorenson). The VRS Reform Order established the rates at which VRS providers are compensated from the Interstate Telecommunications Relay Service Fund (TRS Fund) for a four-year period beginning July 1, 2013, and adopted structural reforms designed to establish a more level playing field for all VRS providers.

    2. Pursuant to the TRS rules, VRS providers submit the number of minutes of service they provide to the TRS Fund administrator on a monthly basis and are compensated for these minutes based on rates set annually by the Commission. The Commission currently uses a three-tier compensation rate structure that allows smaller providers to receive more compensation per minute, on average, than larger providers. A tiered compensation rate structure allows providers to earn a higher compensation rate on the initial minutes of service provided each month. Pursuant to the three-tiered VRS rate structure as modified in the VRS Reform Order, the Tier I rate (the highest rate) applies to a provider's first 500,000 monthly VRS minutes, the Tier II rate applies to a provider's second 500,000 monthly minutes, and the Tier III rate (the lowest rate) applies to monthly minutes in excess of 1,000,000. As a result, smaller providers receive more compensation per minute, on average, than larger providers.

    3. In the VRS Reform Order, the Commission recognized a need to better align VRS compensation rates with the allowable costs of this service, pending a further determination as to VRS compensation methodology. To that end, and as an alternative to immediately reducing rates to a level based on average costs, the Commission adopted a four-year schedule that gradually adjusts the VRS compensation rates downward every six months, beginning July 1, 2013, and ending June 30, 2017. (In document FCC 16-25, the term “average,” when used to describe multiple providers' costs, means an average of provider costs weighted in proportion to each provider's total minutes.) Subsequently, in a Further Notice of Proposed Rulemaking released November 3, 2015, the Commission proposed to temporarily freeze the compensation rates of providers handling 500,000 or fewer monthly minutes. Structure and Practices of the Video Relay Services Program, Telecommunications Relay Services and Speech-to-Speech Services for Individuals with Hearing and Speech Disabilities, CG Docket Nos. 10-51, 03-123, Further Notice of Proposed Rulemaking, published at 80 FR 72029, November 18, 2015, (VRS Rate Freeze FNPRM).

    4. The Commission adopts its proposal to temporarily “freeze” the compensation rates of providers handling 500,000 or fewer monthly minutes (the smallest VRS providers) and directs the TRS Fund administrator to pay compensation, subject to a possible true-up, at a compensation rate of $5.29 per VRS minute for the period from July 1, 2015, to October 31, 2016. This rate is applicable to a VRS provider in any month for which the provider submits 500,000 or fewer compensable VRS minutes for compensation from the TRS Fund.

    5. The record of this proceeding confirms that for each of the smallest VRS providers, the per-minute costs incurred or projected by the provider in calendar years 2015 and 2016, respectively, are higher than the “blended” compensation rate applicable to that provider in that year under the four-year schedule adopted in the VRS Reform Order. (A provider's “blended” compensation rate for a calendar year is the average of the Tier I rates applicable in the first and second halves of the calendar year, weighted by the provider's projected minutes for each half.) The individual cost information filed by the smallest VRS providers, which the Commission finds to be credible, while updating the cost data previously filed with Rolka Loube, confirms Rolka Loube's initial assessment that the deficits incurred by the smallest VRS providers may be jeopardizing their continuation of service. Further, the smallest VRS providers credibly argue that available financing arrangements will not permit them to maintain operations indefinitely in accordance with the Commission's minimum TRS standards while continuing to operate at a loss. Therefore, the Commission finds that, absent rate relief, it is likely that the smallest providers either (1) will be unable to maintain their operations in 2016 or (2) will be unable to continue to grow their operations significantly in the direction of reaching optimum levels of efficiency. As a result, the Commission's objective to offer such providers “a reasonable opportunity to . . . reach the optimum scale to compete effectively” may be undermined. See VRS Reform Order, 78 FR 40602, July 5, 2013.

    6. As the Commission has previously recognized, the presence of diverse providers can spur improvements in the availability, efficiency, and functional equivalence of VRS. Further, public interest considerations favor the grant of interim relief. The record confirms that certain service features offered by small VRS providers may be uniquely helpful in advancing the goal of functionally equivalent service for certain subsets of VRS consumers. Specialized features offered by the smallest VRS providers include Spanish language VRS and emergency alert functions for schools for the deaf.

    7. Based on these various considerations, the Commission concludes that it should temporarily halt the scheduled reduction in the VRS compensation rates applicable to the smallest VRS providers, consistent with its objective in the VRS Reform Order to permit smaller providers a reasonable opportunity to grow and to attain efficiencies comparable to those of larger VRS providers. Accordingly, the Commission adopts its proposal in the VRS Rate Freeze FNPRM to apply a rate of $5.29 per minute to compensation claimed by the smallest VRS providers for a limited period. This rate, which was in effect prior to July 1, 2015, is lower than the smallest VRS providers' average projected allowable costs for 2015 but higher than their average projected allowable costs for 2016. It is also lower than any individual provider's allowable costs for 2015. The Commission concludes that application of a $5.29 per minute compensation rate to the smallest VRS providers will generally provide a reasonable level of support for the operations of the smallest VRS providers and will not risk providing significant overcompensation for such providers. In addition, application of this rate to the smallest VRS providers, in lieu of the previously scheduled rates, will not impose a heavy cost burden on the TRS Fund.

    8. Regarding the period for which this rate freeze should apply, the Commission adopts the proposal in the VRS Rate Freeze FNPRM for an adjusted compensation rate of $5.29 per minute to be effective for 16 months, beginning retroactively on July 1, 2015, the beginning of the current Fund Year, and ending on October 31, 2016. This 16-month rate freeze allows the smallest VRS providers the opportunity to achieve market share growth and improvements in efficiency while benefitting from further implementation of structural reforms—such as the establishment of the ACE platform, which will address interoperability and other matters and is scheduled for launch this year.

    9. While rates should not be frozen indefinitely, the Commission agrees with a number of commenting parties that, in order to avoid subjecting the smallest VRS providers to a sudden drop in compensation upon the expiration of the 16-month period, the compensation rate for the smallest providers should be adjusted downward in the same increments previously directed in the VRS Reform Order. In other words, for the smallest VRS providers the “glide path” originally established in the VRS Reform Order will resume after a 16-month freeze. The resulting per-minute rates for the smallest VRS providers for the period from January 1, 2015, to the end of the four-year period are: (1) January 2015-October 2016, $5.29; (2) November 2016-April 2017, $5.06; (3) May-June 2017, $4.82.

    10. In response to the VRS Rate Freeze FNPRM, a number of commenters urge the Commission to expand the proposed scope of the rate freeze beyond the smallest VRS providers. For example, some parties argue that VRS providers that are larger than the smallest providers, but significantly smaller than the largest provider, also have a need for rate relief based on a comparison of their costs with applicable compensation rates. The information provided to the Commission does not indicate that any VRS providers other than the smallest providers will have allowable costs exceeding the average compensation rate applicable to such providers in 2015 and 2016. The Commission recognizes that among the three largest VRS providers, there are substantial differences in per-minute costs. However, as noted in the VRS Rate Freeze FNPRM, the Commission previously restructured the rate tiers—and “froze” the Tier II rate at $4.82 for the first three years of the transition period—in order to allow the smaller of these providers “ `a full opportunity to improve efficiencies and achieve scale.' ” Again, these providers have not shown that they will incur allowable costs in excess of their revenues in 2015 and 2016. The Commission notes that several parties attempt to renew claims made in prior proceedings alleging that the categories of allowable costs are too narrow to permit recovery of all reasonable VRS costs. Those claims were considered and rejected in the VRS Reform Order. See VRS Reform Order, 78 FR 40599, July 5, 2013. Further, while a number of parties contend that implementation of structural reforms has imposed additional costs, no party has submitted specific estimates or documentation regarding such implementation costs.

    11. In summary, while some parties contend that the compensation rates for currently profitable providers should be frozen, allegedly to prevent reductions in the quality of VRS, the Commission does not perceive any immediate risk that any of the larger VRS providers have been or will be unable to continue to provide service that meets the Commission's minimum TRS standards in 2015 and 2016. The Commission notes, however, that there is an open rulemaking on a number of broader VRS ratemaking proposals and issues. See VRS Reform FNPRM, 78 FR 40582, July 5, 2013. Some of the comments filed in response to the VRS Rate Freeze FNPRM address those matters, as well as raising new issues regarding quality of service and the viability of future competition in the VRS market. To the extent relevant, the Commission may address these comments when it completes action on the broader VRS rulemaking proposals.

    12. In summary, the Commission directs the TRS Fund administrator, Rolka Loube, to compensate the smallest VRS providers at a rate of $5.29 per minute, applicable from July 1, 2015, through October 31, 2016. More specifically, from the effective date of this Report and Order through October 31, 2016, the Commission directs the administrator to pay compensation to the smallest VRS providers at a rate of $5.29 per minute. Second, the Commission directs the administrator to pay each of the smallest VRS providers a one-time lump sum reflecting the difference between the compensation they would have received if they had been paid at a rate of $5.29 per minute and the compensation they actually received at the lower applicable rates, for all compensable calls completed during the period between July 1, 2015, and the effective date of document FCC 16-25. In addition, to avoid subjecting the smallest VRS providers to a sudden drop in compensation upon the expiration of the 16-month period, the Commission directs the administrator to pay compensation to the smallest VRS providers at a rate of $5.06 per minute from November 1, 2016, through April 30, 2017, and at a rate of $4.82 per minute from May 1, 2017, through June 30, 2017.

    Final Regulatory Flexibility Act Certification

    13. As required by the Regulatory Flexibility Act (RFA), the Commission has prepared the Final Regulatory Flexibility Certification (FRFC) as to the policies and rules adopted in document FCC 16-25. The Commission will send a copy of document FCC 16-25, including the FRFC, to the Chief Counsel for Advocacy of the Small Business Administration (SBA). (See 5 U.S.C. 603(a).)

    14. After consideration of the comments received in response to the VRS Rate Freeze FNPRM, the Commission modifies in part the four-year compensation rate plan for video relay service (VRS) adopted in the 2013 VRS Reform Order. Although the Commission believes that the four-year schedule of VRS compensation rate reductions continues to be justified in order to gradually move compensation rates close to a level close to average allowable provider costs, the Commission modifies the schedule as applied to the smallest VRS providers, i.e., those providing 500,000 or fewer compensable minutes of use of VRS per month. Spreading rate reductions over a four-year period was largely intended to provide a reasonable opportunity for the smallest providers to reach minimum efficient scale while benefitting from the VRS Reform Order initiatives, which were intended to address many of the issues that have made it difficult for small providers to operate efficiently.

    15. The smallest providers have achieved significant reductions in their per-minute costs but have yet to approach the size or efficiency levels of their larger rivals. Further, some small providers offer service features that may be helpful in advancing the goal of functionally equivalent service for certain subsets of VRS consumers, such as Spanish language speakers and deaf-owned businesses. Therefore, the Commission adopts the temporary, limited compensation rate “freeze” proposed in the VRS Rate Freeze FNPRM. Specifically, from the effective date of document FCC 16-25 through October 31, 2016, the Commission directs the TRS Fund administrator to pay compensation to the three smallest VRS providers at a rate of $5.29 per minute. In addition, the Commission directs the administrator to pay each of the smallest VRS providers a one-time lump sum reflecting the difference between the compensation they would have received if they had been paid at a rate of $5.29 per minute and the compensation they actually received at the lower applicable rates, for all compensable calls completed during the period between July 1, 2015, and the effective date of document FCC 16-25. In addition, to avoid subjecting the smallest VRS providers to a sudden drop in compensation upon the expiration of the 16-month period, the Commission directs the administrator to pay compensation to the smallest VRS providers at a rate of $5.06 per minute from November 1, 2016, through April 30, 2017, and at a rate of $4.82 per minute from May 1, 2017, through June 30, 2017.

    16. In document FCC 16-25, the Commission adopts its proposal to temporarily “freeze” the compensation rates applicable to the smallest VRS providers and determines, as it concluded in the Initial Regulatory Flexibility Analysis, that this measure will not impose any additional compliance requirements on small businesses and would temporarily ease the impact of existing VRS regulations on small entities by temporarily increasing the VRS compensation rate for small entities above the rate currently in effect. Therefore, the Commission certifies that the rule amendments in document FCC 16-25 will not have a significant economic impact on a substantial number of small entities.

    Ordering Clause

    Pursuant to the authority contained in sections 4(i), 201(b), and 225 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 201(b), 225, document FCC 16-25 is adopted.

    Federal Communications Commission.

    Gloria J. Miles, Federal Register Liaison Officer, Office of the Secretary.
    [FR Doc. 2016-06305 Filed 3-18-16; 8:45 am] BILLING CODE 6712-01-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 648 [Docket No. 160202070-6070-01] RIN 0648-XE427 Fisheries of the Northeastern United States; Northeast Multispecies Fishery; Adjustment of Georges Bank and Southern New England/Mid-Atlantic Yellowtail Flounder Annual Catch Limits AGENCY:

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

    ACTION:

    Temporary rule; adjustment of annual catch limits.

    SUMMARY:

    This action transfers unused quota of Georges Bank and Southern New England/Mid-Atlantic yellowtail flounder from the Atlantic scallop fishery to the Northeast multispecies fishery for the remainder of the 2015 fishing year. This quota transfer is justified when the scallop fishery is not expected to catch the entire allocation of either stock of yellowtail flounder. The quota transfer is intended to provide additional harvest opportunities for groundfish vessels to help achieve the optimum yield for these stocks while ensuring sufficient amounts of yellowtail flounder are available for the scallop fishery.

    DATES:

    Effective April 18, 2016, through April 30, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Aja Szumylo, Fishery Policy Analyst, 978-281-9195.

    SUPPLEMENTARY INFORMATION:

    NMFS is required to estimate the total amount of yellowtail flounder catch from the scallop fishery by January 15 each year. If the scallop fishery is expected to catch less than 90 percent of its Georges Bank (GB) or Southern New England/Mid-Atlantic (SNE/MA) yellowtail flounder sub-ACL, the Regional Administrator (RA) has the authority to reduce the scallop fishery sub-annual catch limit (sub-ACL) for these stocks to the amount projected to be caught, and increase the groundfish fishery sub-ACL for these stocks up to the amount reduced from the scallop fishery. This adjustment is intended to help achieve optimum yield for these stocks, while not threatening an overage of the ACLs for the stocks by the groundfish and scallop fisheries.

    Based on the most current available data, we project that the scallop fishery will have unused quota in the 2015 fishing year. We expect that the scallop fishery will catch up to 30 mt of GB yellowtail flounder, or 79 percent of its 2015 fishing year sub-ACL, and up to 44 mt of SNE/MA yellowtail flounder, or 66 percent of its 2015 fishing year sub-ACL. Because the scallop fishery is not expected to catch its entire allocation of GB and SNE/MA yellowtail flounder, this rule reduces the scallop sub-ACL for both stocks to the upper limit projected to be caught, and increases the groundfish sub-ACLs for these stocks by the same amount, effective April 18, 2016, through April 30, 2016.

    This results in a transfer of 7.9 mt of GB yellowtail flounder and 22.3 mt of SNE/MA yellowtail flounder, from the scallop fishery to the groundfish fishery. Table 1 summarizes the revisions to the 2015 fishing year sub-ACLs, and Table 2 shows the revised allocations for the groundfish fishery as allocated between the sectors and common pool based on final sector membership for fishing year 2015. This transfer is based on the upper limit of expected yellowtail flounder catch by the scallop fishery, which is expected to minimize any risk of an ACL overage by the scallop fishery while still providing additional fishing opportunities for groundfish vessels.

    Table 1—Georges Bank and Southern New England/Mid-Atlantic Yellowtail Flounder Sub-ACLs [In metric tons] Stock Fishery Initial
  • sub-ACL
  • (mt)
  • Change
  • (mt)
  • Revised
  • sub-ACL
  • (mt)
  • Percent
  • change
  • GB Yellowtail Flounder Groundfish
  • Scallop
  • 195
  • 38.0
  • +7.9
  • −7.9
  • 202.9
  • 30.1
  • +4
  • −21
  • SNE/MA Yellowtail Flounder Groundfish
  • Scallop
  • 557
  • 66.0
  • +22.3
  • −22.3
  • 579.3
  • 43.7
  • +4
  • −34
  • Table 2—Allocations for Sectors and the Common Pool [In pounds] Stock Sector name GB yellowtail flounder Original Revised SNE/MA yellowtail flounder Original Revised Fixed Gear Sector 60 63 4,537 4,719 Maine Coast Community Sector 15 16 8,095 8,419 Maine Permit Bank 59 62 390 405 Northeast Coast Communities Sector 3,594 3,739 8,826 9,179 Northeast Fishery Sector I 0 0 0 0 Northeast Fishery Sector II 8,197 8,529 17,162 17,849 Northeast Fishery Sector III 197 205 5,014 5,214 Northeast Fishery Sector IV 9,296 9,672 28,813 29,966 Northeast Fishery Sector V 5,420 5,639 253,651 263,807 Northeast Fishery Sector VI 11,622 12,093 64,600 67,186 Northeast Fishery Sector VII 44,912 46,732 53,151 55,279 Northeast Fishery Sector VIII 41,896 43,593 66,703 69,374 Northeast Fishery Sector IX 115,114 119,778 96,962 100,844 Northeast Fishery Sector X 7 7 6,724 6,993 Northeast Fishery Sector XI 7 7 240 249 Northeast Fishery Sector XIII 106,377 110,687 228,053 237,183 New Hampshire Permit Bank 0 0 0 0 Sustainable Harvest Sector 1 3,974 4,135 5,343 5,557 Sustainable Harvest Sector 3 70,954 73,828 127,312 132,409 All Sectors Combined 421,701 438,785 975,574 1,014,632 Common Pool 8,200 8,533 252,401 262,506 Classification

    Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Fishery Conservation and Management Act, the NMFS Assistant Administrator has determined that the management measures implemented in this final rule are necessary for the conservation and management of the Northeast multispecies fishery and consistent with the Magnuson-Stevens Act, and other applicable law.

    This action is authorized by 50 CFR part 648 and is exempt from review under Executive Order 12866.

    The NMFS Assistant Administrator finds good cause pursuant to 5 U.S.C. 553(b)(B) to waive prior notice and the opportunity for public comment for this in season sub-ACL adjustment because notice and comment would be impracticable and contrary to the public interest. Because NMFS is required to project GB and SNE/MA yellowtail flounder catch in the scallop fishery on or around January 15 of each year, there is insufficient time to allow for prior public notice and comment for the transfer of quota for these yellowtail flounder stocks from the scallop fishery to the groundfish fishery. The NE multispecies fishing year ends on April 30, 2016. If NMFS allowed for the time necessary to provide for prior notice and comment, it would be unlikely that the transfer would occur in time to allow groundfish vessels to harvest the additional quota of these stocks before the end of the fishing year. As a result, groundfish fishermen would be prevented from offsetting their current negative economic circumstances due to the severe decreases in ACLs of several important groundfish stocks, thus undermining the intent of the rule. Giving effect to this rule as soon as possible will help relieve fishermen from more restrictive ACLs for the yellowtail stocks and help achieve optimum yield in the fishery. For these same reasons, the NMFS Assistant Administrator also finds good cause pursuant to 5 U.S.C. 553(d)(3) to waive the 30-day delay in effectiveness for this action for these same reasons. Further, there is no need to allow the industry additional time to adjust to this rule because it does not require any compliance or other action on the part of individual scallop or groundfish fishermen.

    Because notice and opportunity for comment are not required pursuant to 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 inapplicable. Therefore, a regulatory flexibility analysis is not required and one has not been prepared.

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: March 15, 2016. Samuel D. Rauch III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.
    [FR Doc. 2016-06306 Filed 3-18-16; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 679 [Docket No. 140918791-4999-02] RIN 0648-XE516 Fisheries of the Economic Exclusive Zone Off Alaska; Deep-Water Species Fishery by Vessels Using Trawl Gear 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 species that comprise the deep-water species fishery by vessels using trawl gear in the Gulf of Alaska (GOA). This action is necessary because the first seasonal apportionment of the Pacific halibut bycatch allowance specified for the deep-water species fishery in the GOA has been reached.

    DATES:

    Effective 1200 hours, Alaska local time (A.l.t.), March 16, 2016, through 1200 hours, A.l.t., April 1, 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 first seasonal apportionment of the Pacific halibut bycatch allowance specified for the deep-water species fishery in the GOA is 85 metric tons as established by the final 2015 and 2016 harvest specifications for groundfish of the GOA (80 FR 10250, February 25, 2015), for the period 1200 hours, A.l.t., January 20, 2016, through 1200 hours, A.l.t., April 1, 2016.

    In accordance with § 679.21(d)(6)(i), the Administrator, Alaska Region, NMFS, has determined that the first seasonal apportionment of the Pacific halibut bycatch allowance specified for the trawl deep-water species fishery in the GOA has been reached. Consequently, NMFS is prohibiting directed fishing for the deep-water species fishery by vessels using trawl gear in the GOA. The species and species groups that comprise the deep-water species fishery include sablefish, rockfish, deep-water flatfish, rex sole, and arrowtooth flounder.

    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 the deep-water species fishery by vessels using trawl gear in 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 14, 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 § 679.21 and is exempt from review under Executive Order 12866.

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: March 16, 2016. Alan D. Risenhoover, Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2016-06295 Filed 3-16-16; 4:15 pm] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 679 [Docket No. 150818742-6210-02 and 150916863-6211-02] RIN 0648-XE507 Fisheries of the Exclusive Economic Zone Off Alaska; Sablefish Managed Under the Individual Fishing Quota Program AGENCY:

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

    ACTION:

    Temporary rule; opening.

    SUMMARY:

    NMFS is opening directed fishing for sablefish with fixed gear managed under the Individual Fishing Quota (IFQ) Program and the Community Development Quota (CDQ) Program. The season will open 1200 hours, Alaska local time (A.l.t.), March 19, 2016, and will close 1200 hours, A.l.t., November 7, 2016. This period is the same as the 2016 commercial halibut fishery opening dates adopted by the International Pacific Halibut Commission. The IFQ and CDQ halibut season is specified by a separate publication in the Federal Register of annual management measures.

    DATES:

    Effective 1200 hours, A.l.t., March 19, 2016, until 1200 hours, A.l.t., November 7, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Obren Davis, 907-586-7228.

    SUPPLEMENTARY INFORMATION:

    Beginning in 1995, fishing for Pacific halibut and sablefish with fixed gear in the IFQ regulatory areas defined in 50 CFR 679.2 has been managed under the IFQ Program. The IFQ Program is a regulatory regime designed to promote the conservation and management of these fisheries and to further the objectives of the Magnuson-Stevens Fishery Conservation and Management Act and the Northern Pacific Halibut Act. Persons holding quota share receive an annual allocation of IFQ. Persons receiving an annual allocation of IFQ are authorized to harvest IFQ species within specified limitations. Further information on the implementation of the IFQ Program, and the rationale supporting it, are contained in the preamble to the final rule implementing the IFQ Program published in the Federal Register, November 9, 1993 (58 FR 59375) and subsequent amendments.

    This announcement is consistent with § 679.23(g)(1), which requires that the directed fishing season for sablefish managed under the IFQ Program be specified by the Administrator, Alaska Region, and announced by publication in the Federal Register. This method of season announcement was selected to facilitate coordination between the sablefish season, chosen by the Administrator, Alaska Region, and the halibut season, adopted by the International Pacific Halibut Commission (IPHC). The directed fishing season for sablefish with fixed gear managed under the IFQ Program will open 1200 hours, A.l.t., March 19, 2016, and will close 1200 hours, A.l.t., November 7, 2016. This period runs concurrently with the IFQ season for Pacific halibut announced by the IPHC. The IFQ halibut season will be specified by a separate publication in the Federal Register of annual management measures pursuant to 50 CFR 300.62.

    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 opening of the sablefish fishery thereby increasing bycatch and regulatory discards between the sablefish fishery and the halibut fishery, and preventing the accomplishment of the management objective for simultaneous opening of these two fisheries. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of March 14, 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 § 679.23 and is exempt from review under Executive Order 12866.

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: March 15, 2016. Alan D. Risenhoover, Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2016-06225 Filed 3-16-16; 4:15 pm] BILLING CODE 3510-22-P
    81 54 Monday, March 21, 2016 Proposed Rules DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2016-4228; Directorate Identifier 2015-NM-107-AD] RIN 2120-AA64 Airworthiness Directives; Airbus Airplanes AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    We propose to supersede Airworthiness Directive (AD) 2014-13-12, for all Airbus Model A318, A319, A320, and A321 series airplanes. AD 2014-13-12 currently requires identifying the part number and serial number of each passenger oxygen container, replacing the oxygen generator manifold of any affected oxygen container with a serviceable manifold, and performing an operational check of the manual mask release, and doing corrective actions if necessary. Since we issued AD 2014-13-12, we have determined that affected containers have not only been marked with company name B/E Aerospace, as was specified, but also, for a brief period, with the former company name DAe Systems. This proposed AD would retain the requirements of AD 2014-13-12, and require replacing the oxygen generator manifold of any affected DAe oxygen container with a serviceable manifold. We are proposing this AD to detect and correct nonserviceable oxygen generator manifolds, which could reduce or block the oxygen supply and result in injury to passengers when oxygen supply is needed.

    DATES:

    We must receive comments on this proposed AD by May 5, 2016.

    ADDRESSES:

    You may send comments by any of the following methods:

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

    Fax: 202-493-2251.

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

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

    For Airbus service information identified in this NPRM, contact Airbus, Airworthiness Office—EIAS, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 44 51; email [email protected]; Internet http://www.airbus.com.

    For B/E AEROSPACE service information identified in this proposed AD, contact BE Aerospace Systems GmbH, Revalstrasse 1, 23560 Lübeck, Germany; telephone (49) 451 4093-2976; fax (49) 451 4093-4488.

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

    Examining the AD Docket

    You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-4228; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this proposed AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations office (telephone 800-647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

    FOR FURTHER INFORMATION CONTACT:

    Sanjay Ralhan, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057-3356; telephone 425-227-1405; fax 425-227-1149.

    SUPPLEMENTARY INFORMATION: Comments Invited

    We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2016-4228; Directorate Identifier 2015-NM-107-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD based on those comments.

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

    Discussion

    On July 9, 2014, we issued AD 2014-13-12, Amendment 39-17888 (79 FR 45317, August 5, 2014) (“AD 2014-13-12”). AD 2014-13-12 requires actions intended to address an unsafe condition on all Airbus Model A318, A319, A320, and A321 series airplanes.

    Since we issued AD 2014-13-12, we have determined that affected containers have not only been marked with company name B/E Aerospace, as was specified, but also, for a brief period, with the former company name DAe Systems.

    The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA Airworthiness Directive 2014-0208, dated September 16, 2014 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition. The MCAI states:

    During production of passenger oxygen containers, the manufacturer, B/E Aerospace, detected some silicon particles inside the oxygen generator manifolds. Investigation revealed that those particles (chips) had chafed from the mask hoses during installation onto the generator outlets. It was discovered that a defective mask hose installation device had caused the chafing.

    This condition, if not detected and corrected, could reduce or block the oxygen supply, possibly resulting in injury to passengers when oxygen supply is needed.

    To address this potential unsafe condition, EASA issued AD 2011-0167 [http://ad.easa.europa.eu/blob/easa_ad_2011_0167_superseded.pdf/AD_2011-0167_1] to require the identification and modification of the affected oxygen container assemblies. That [EASA] AD also prohibited the installation of the affected containers on any aeroplane as replacement parts. It was subsequently established that Models A318-121 and A318-122 were missing from the Applicability of the [EASA] AD, and clarification was necessary regarding the affected containers.

    Consequently, EASA issued AD 2012-0083 [http://ad.easa.europa.eu/blob/easa_ad_2012_0083_superseded.pdf/AD_2012-0083_1] [which corresponds to FAA AD 2014-13-12, Amendment 39-17888 (79 FR 45317, August 5, 2014)], retaining the requirements of EASA AD 2011-0167, which was superseded, expanded the Applicability by adding two aeroplane models, and provided clarity by providing a list of affected passenger oxygen containers.

    Since that [EASA] AD was issued, it was found that the affected containers have not only been marked with company name B/E Aerospace, as was specified, but also, for a brief period, with the former company name DAe Systems.

    For the reason described above, this [EASA] AD retains the requirements of EASA AD 2012-0083, which is superseded, and expands the affected group of containers to include those that have the name “DAe Systems” on the identification plate.

    This [EASA] AD also clearly separates the serial number (s/n) groups of containers into those manufactured by B/E Aerospace and those manufactured by DAe Systems, for which additional compliance time is provided.

    You may examine the MCAI in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-4228.

    Related Service Information Under 1 CFR Part 51

    Airbus has issued Service Bulletin A320-35A1047, dated March 29, 2011. The service information describes procedures for modifying the oxygen mask hoses of the Type 1 and Type 2 oxygen containers.

    B/E AEROSPACE has issued Service Bulletins 1XCXX-0100-35-005 and 22CXX-0100-35-003, both Revision 2, both dated July 10, 2014. The service information describes procedures for replacement of the oxygen generator manifold.

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

    FAA's Determination and Requirements of This Proposed AD

    This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type designs.

    Changes to This Proposed AD

    We have not included paragraph (h)(5) of AD 2014-13-12 in this proposed AD. Paragraph (h)(5) of AD 2014-13-12 inadvertently specified that certain actions were to be done if the affected part was listed in the specified service information. It should have specified that those actions were to be done only if the part was not listed in the service information. We have included the correct requirement in the new actions of this proposed AD.

    We have removed Note 1 to paragraph (h)(1) of AD 2014-13-12, which identified affected passenger emergency oxygen container assemblies as those having the mark “B/E AEROSPACE” on the identification plate. This is no longer applicable because we have determined that affected containers have not only been marked with company name B/E Aerospace, as was specified, but also, for a brief period, with the former company name DAe Systems.

    We have added Note 2 to figure 1 to paragraph (i)(7) of this AD, which provides information to clarify information presented in figure 1 to paragraph (i)(7) of this AD.

    Costs of Compliance

    We estimate that this proposed AD affects 22 airplanes of U.S. registry.

    The actions required by AD 2014-13-12, and retained in this proposed AD take about 6 work-hours per product, at an average labor rate of $85 per work-hour. Based on these figures, the estimated cost of the actions that are required by AD 2014-13-12 is $510 per product.

    We also estimate that it would take about 6 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $85 per work-hour. Based on these figures, we estimate the cost of this proposed AD on U.S. operators to be $11,220, or $510 per product.

    Authority for This Rulemaking

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

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

    Regulatory Findings

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

    For the reasons discussed above, I certify this proposed regulation:

    1. Is not a “significant regulatory action” under Executive Order 12866;

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

    3. Will not affect intrastate aviation in Alaska; and

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

    List of Subjects in 14 CFR Part 39

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

    The Proposed Amendment

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

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

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by removing Airworthiness Directive (AD) 2014-13-12, Amendment 39-17888 (79 FR 45317, August 5, 2014), and adding the following new AD: Airbus: Docket No. FAA-2016-4228; Directorate Identifier 2015-NM-107-AD. (a) Comments Due Date

    We must receive comments by May 5, 2016.

    (b) Affected ADs

    This AD replaces AD 2014-13-12, Amendment 39-17888 (79 FR 45317, August 5, 2014) (“AD 2014-13-12”).

    (c) Applicability

    This AD applies to the Airbus airplanes identified in paragraphs (c)(1) through (c)(4) of this AD, certificated in any category, all manufacturer serial numbers.

    (1) Model A318-111, -112, -121, and -122 airplanes.

    (2) Model A319-111, -112, -113, -114, -115, -131, -132, and -133 airplanes.

    (3) Model A320-211, -212, -214, -231, -232, -233, and -271 airplanes.

    (4) Model A321-111, -112, -131, -211, -212, -213, -231, and -232 airplanes.

    (d) Subject

    Air Transport Association (ATA) of America Code 35, Oxygen.

    (e) Reason

    This AD was prompted by reports of silicon particles inside the oxygen generator manifolds, which had chafed from the mask hoses during installation onto the generator outlets. We are issuing this AD to detect and correct nonserviceable oxygen generator manifolds, which could reduce or block the oxygen supply and result in injury to passengers when oxygen supply is needed.

    (f) Compliance

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

    (g) Retained Part Number and Serial Number Identification, With No Changes

    This paragraph restates the requirements of paragraph (g) of AD 2014-13-12, with no changes. Within 5,000 flight cycles, or 7,500 flight hours, or 24 months, whichever occurs first after September 9, 2014 (the effective date of AD 2014-13-12), identify the part number and serial number of each passenger oxygen container. A review of airplane maintenance records is acceptable in lieu of this identification if the part number and serial number of the oxygen container can be conclusively determined from that review.

    (h) Retained Replacement, Check, and Repair, With Paragraph (h)(5) and Note 1 to Paragraph (h) of AD 2014-13-12 Removed, and Revised Repair Instructions

    This paragraph restates the requirements of paragraph (h) of AD 2014-13-12, with paragraph (h)(5) and Note 1 to paragraph (h) of AD 2014-13-12 removed, and revised repair instructions. If the part number of the passenger oxygen container is listed in paragraph (h)(1) of this AD and the serial number of the passenger oxygen container is listed in paragraph (h)(2) of this AD: Within the compliance time specified in paragraph (g) of this AD, do the actions specified in paragraphs (h)(3) and (h)(4) of this AD, except as provided by paragraphs (i)(1) through (i)(7) of this AD.

    (1) (Type I: 15 and 22 minutes) 12C15Lxxxxx0100, 12C15Rxxxxx0100, 13C15Lxxxxx0100, 13C15Rxxxxx0100, 14C15Lxxxxx0100, 14C15Rxxxxx0100, 12C22Lxxxxx0100, 12C22Rxxxxx0100, 13C22Lxxxxx0100, 13C22Rxxxxx0100, 14C22Lxxxxx0100, and 14C22Rxxxxx0100; and (Type II: 15 and 22 minutes) 22C15Lxxxxx0100, 22C15Rxxxxx0100, 22C22Lxxxxx0100, and 22C22Rxxxxx0100.

    (2) ARBA-0000 to ARBA-9999 inclusive, ARBB-0000 to ARBB-9999 inclusive, ARBC-0000 to ARBC-9999 inclusive, ARBD-0000 to ARBD-9999 inclusive, ARBE-0000 to ARBE-9999 inclusive, BEBF-0000 to BEBF-9999 inclusive, BEBH-0000 to BEBH-9999 inclusive, BEBK-0000 to BEBK-9999 inclusive, BEBL-0000 to BEBL-9999 inclusive, and BEBM-0000 to BEBM-9999 inclusive.

    (3) Replace the oxygen generator manifold of any affected oxygen passenger container with a serviceable manifold, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A320-35A1047, dated March 29, 2011.

    (4) Do an operational check of the manual mask release, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A320-35A1047, dated March 29, 2011. If the operational check fails, before further flight, repair the manual mask release, using a method approved by the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA; or the European Aviation Safety Agency (EASA); or Airbus's EASA Design Organization Approval (DOA).

    (i) Retained Exceptions, With No Changes

    This paragraph restates the provisions of paragraph (i) of AD 2014-13-12, with no changes.

    (1) Oxygen containers that meet the conditions specified in paragraph (i)(1)(i) or (i)(1)(ii) of this AD are compliant with the requirements of paragraph (h) of this AD.

    (i) Oxygen containers Type I having a part number listed in paragraph (h)(1) of this AD and having a serial number listed in paragraph (h)(2) of this AD, that have been modified prior to September 9, 2014 (the effective date of AD 2014-13-12), as specified in the Accomplishment Instructions of B/E Aerospace Service Bulletin 1XCXX-0100-35-005, Revision 1, dated December 15, 2012.

    (ii) Oxygen containers Type II having a part number listed in paragraph (h)(1) of this AD and having a serial number listed in paragraph (h)(2) of this AD, that have been modified prior to September 9, 2014 (the effective date of AD 2014-13-12), as specified in the Accomplishment Instructions of B/E Aerospace Service Bulletin 22CXX-0100-35-003, Revision 1, dated December 20, 2011.

    (2) Airplanes on which Airbus Modification 150703 or Airbus Modification 150704 has not been embodied in production do not have to comply with the requirements of paragraph (h) of this AD, unless an oxygen container having a part number listed in paragraph (h)(1) of this AD and having a serial number listed in paragraph (h)(2) of this AD has been replaced since the airplane's first flight.

    (3) Airplanes on which Airbus Modification 150703 or Airbus Modification 150704 has been embodied in production and which are not listed by model and manufacturer serial number in Airbus Service Bulletin A320-35A1047, dated March 29, 2011, are not subject to the requirements of paragraphs (g) and (h) of this AD, unless an oxygen container having a part number listed in paragraph (h)(1) of this AD and having a serial number listed in paragraph (h)(2) of this AD has been replaced since the airplane's first flight.

    (4) Model A319 airplanes that are equipped with a gaseous oxygen system for passengers, installed in production with Airbus Modification 33125, do not have the affected passenger oxygen containers installed. Unless these airplanes have been modified in service (no approved Airbus modification exists), the requirements of paragraphs (g) and (h) of this AD do not apply to these airplanes.

    (5) Airplanes that have already been inspected prior to the effective date of this AD, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A320-35A1047, dated March 29, 2011, must be inspected and, depending on the findings, corrected, within the compliance time defined in paragraph (g) of this AD, as required by paragraph (h) of this AD, as applicable, except as specified in paragraph (i)(6) of this AD.

    (6) Airplanes on which the passenger oxygen container has been replaced before the effective date of this AD, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A320-35A1047, dated March 29, 2011, are compliant with the requirements of the paragraph (h) of this AD for that passenger oxygen container.

    (7) The requirements of paragraphs (g) and (h) of this AD apply only to passenger oxygen containers that are Design A, as defined in figure 1 to paragraph (i)(7) of this AD.

    EP21MR16.005 Note 1 to figure 1 to paragraph (i)(7) of this AD:

    Figure 1 is a reproduction of material from EASA AD 2012-0083, dated May 16, 2012. The words “Appendix 1 of this AD” in this figure refer to Appendix 1 of EASA AD 2012-0083, dated May 16, 2012.

    Note 2 to figure 1 to paragraph (i)(7) of this AD:

    For “Design A,” the placard on the passenger oxygen container test button is as described in “Picture A” in figure 1 to paragraph (i)(7) of this AD. The mask configuration (“ZZ” in “Picture A”) is a number, and the test button is as shown in “Picture B.”

    (j) Retained Parts Installation Limitations, With No Changes

    This paragraph restates the requirements of paragraph (j) of AD 2014-13-12, with no changes. As of September 9, 2014 (the effective date of AD 2014-13-12), no person may install an oxygen container having a part number specified in paragraph (h)(1) of this AD and having a serial number specified in paragraph (h)(2) of this AD, on any airplane, unless the container has been modified in accordance with the Accomplishment Instructions of any of the service information specified in paragraph (j)(1), (j)(2), or (j)(3) of this AD, as applicable.

    (1) Airbus Service Bulletin A320-35A1047, dated March 29, 2011.

    (2) B/E AEROSPACE Service Bulletin 1XCXX-0100-35-005, Revision 1, dated December 15, 2012.

    (3) B/E AEROSPACE Service Bulletin 22CXX-0100-35-003, Revision 1, dated December 20, 2011.

    (k) New Requirement of This AD: Identification of Oxygen Containers

    At the applicable time specified in paragraphs (k)(1) and (k)(2) of this AD: Identify the part number and serial number of each passenger oxygen container. A review of airplane maintenance records is acceptable in lieu of this identification if the part number and serial number of the oxygen container can be conclusively determined from that review.

    (1) For units with “B/E AEROSPACE” on the identification plate: Within 5,000 flight cycles, or 7,500 flight hours, or 24 months, whichever occurs first after the effective date of this AD.

    (2) For units with “DAe Systems” on the identification plate: Within 2,500 flight cycles, or 3,750 flight hours, or 12 months, whichever occurs first, after the effective date of this AD.

    (l) New Requirement of This AD: Modification of Oxygen Containers

    If a passenger oxygen container has a part number listed in paragraph (h)(1) of this AD and a serial number listed in paragraph (m)(1) or (m)(2) of this AD: At the applicable time specified in paragraphs (k)(1) and (k)(2) of this AD, do the actions specified in paragraphs (l)(1), (l)(2), and (l)(3) of this AD.

    (1) Replace the oxygen generator manifold of any affected oxygen container with a serviceable manifold, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A320-35A1047, dated March 29, 2011.

    (2) Do an operational check of the manual mask release, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A320-35A1047, dated March 29, 2011. If the operational check fails, before further flight, repair the manual mask release, using a method approved by the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA; or the EASA; or Airbus's EASA DOA.

    (3) Check if the part number of the passenger oxygen container is listed in B/E Aerospace Service Bulletin 1XCXX-0100-35-005, Revision 2, dated July 10, 2014; or B/E Aerospace Service Bulletin 22CXX-0100-35-003, Revision 2, dated July 10, 2014, as applicable. If the part number is not listed in B/E Aerospace Service Bulletin 1XCXX-0100-35-005, Revision 2, dated July 10, 2014; or B/E Aerospace Service Bulletin 22CXX-0100-35-003, Revision 2, dated July 10, 2014; within the compliance time specified in paragraphs (k)(1) and (k)(2) of this AD, repair the passenger oxygen container using a method approved by the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA; or the EASA; or Airbus's EASA DOA.

    (m) New Requirement of This AD: Part Number and Serial Numbers for the Parts Affected by Paragraph (l) of This AD Requirements

    Affected parts for the actions required by paragraph (l) of this AD are identified in paragraphs (m)(1) and (m)(2) of this AD.

    (1) For oxygen containers with “DAe Systems” on the identification plate: Units having a part number identified in paragraphs (h)(1) of this AD, where part number “xxxxx” stands for any alphanumerical value, and a serial number identified in paragraphs (m)(1)(i) through (m)(1)(vi) of this AD.

    (i) ARBA-0000 to ARBA-9999 inclusive.

    (ii) ARBB-0000 to ARBB-9999 inclusive.

    (iii) ARBC-0000 to ARBC-9999 inclusive.

    (iv) ARBD-0000 to ARBD-9999 inclusive.

    (v) ARBE-0000 to ARBE-9999 inclusive.

    (vi) BEBE-0000 to BEBE-9999 inclusive.

    (2) For oxygen containers with “B/E AEROSPACE” on the identification plate: Units having a part number identified in paragraphs (h)(1) of this AD, where part number “xxxxx” stands for any alphanumerical value, and a serial number identified in paragraphs (m)(2)(i) through (m)(2)(v) of this AD.

    (i) BEBF-0000 to BEBF-9999 inclusive.

    (ii) BEBH-0000 to BEBH-9999 inclusive.

    (iii) BEBK-0000 to BEBK-9999 inclusive.

    (iv) BEBL-0000 to BEBL-9999 inclusive.

    (v) BEBM-0000 to BEBM-9999 inclusive.

    (n) New Requirement of This AD: Exceptions

    (1) Oxygen containers that meet the conditions specified in paragraph (n)(1)(i) or (n)(1)(ii) of this AD are compliant with the requirements of paragraph (l) of this AD.

    (i) Oxygen containers Type I having a part number listed in paragraph (h)(1) of this AD and having a serial number listed in paragraph (m)(1) or (m)(2), as applicable, of this AD, that have been modified prior to the effective date of this AD, as specified in the Accomplishment Instructions of B/E Aerospace Service Bulletin 1XCXX-0100-35-005, Revision 1, dated December 15, 2012; or B/E Aerospace Service Bulletin 1XCXX-0100-35-005, Revision 2, dated July 10, 2014.

    (ii) Oxygen containers Type II having a part number listed in paragraph (h)(1) of this AD and having a serial number listed in paragraph (m)(1) or (m)(2) of this AD, as applicable, that have been modified prior to the effective date of this AD, as specified in the Accomplishment Instructions of B/E Aerospace Service Bulletin 22CXX-0100-35-003, Revision 1, dated December 20, 2011; or B/E Aerospace Service Bulletin 22CXX-0100-35-003, Revision 2, dated July 10, 2014.

    (2) Airplanes on which Airbus Modification 150703 or Airbus Modification 150704 has not been embodied in production do not have to comply with the requirements of paragraph (l) of this AD, unless an oxygen container having a part number listed in paragraph (h)(1) of this AD and having a serial number listed in paragraph (m)(1) or (m)(2) of this AD, as applicable, of this AD has been replaced since the airplane's first flight.

    (3) Airplanes on which Airbus Modification 150703 or Airbus Modification 150704 has been embodied in production and which are not listed by model and manufacturer serial number in Airbus Service Bulletin A320-35A1047, dated March 29, 2011, are not subject to the requirements of paragraphs (k) and (l) of this AD, unless an oxygen container having a part number listed in paragraph (h)(1) of this AD and having a serial number listed in paragraph (m)(1) or (m)(2) of this AD, as applicable, of this AD has been replaced since the airplane's first flight.

    (4) Model A319 airplanes that are equipped with a gaseous oxygen system for passengers, installed in production with Airbus Modification 33125, do not have the affected passenger oxygen containers installed. Unless these airplanes have been modified in service (no approved Airbus modification exists), the requirements of paragraphs (k) and (l) of this AD do not apply to these airplanes.

    (5) Airplanes that have already been inspected prior to the effective date of this AD, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A320-35A1047, dated March 29, 2011, must be inspected and, depending on the findings, corrected, within the compliance time defined in paragraphs (k)(1) and (k)(2) of this AD, as applicable, as required by paragraph (l) of this AD, as applicable, except as specified in paragraph (n)(6) of this AD.

    (6) Airplanes on which the passenger oxygen container has been replaced before the effective date of this AD, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A320-35A1047, dated March 29, 2011, are compliant with the requirements of the paragraph (l) of this AD for that passenger oxygen container.

    (7) The requirements of paragraphs (k) and (l) of this AD apply only to passenger oxygen containers that are Design A, as defined in figure 1 to paragraph (i)(7) of this AD.

    (o) New Requirement of This AD: Parts Installation Limitations

    As of the effective date of this AD, no person may install an oxygen container having a part number specified in paragraph (h)(1) of this AD and having a serial number specified in paragraph (m)(1) or (m)(2) of this AD, as applicable, on any airplane, unless the container has been modified in accordance with the Accomplishment Instructions of any of the service information specified in paragraph (o)(1), (o)(2), or (o)(3) of this AD, as applicable to the oxygen container part number.

    (1) Airbus Service Bulletin A320-35A1047, dated March 29, 2011.

    (2) B/E Aerospace Service Bulletin 1XCXX-0100-35-005, Revision 2, dated July 10, 2014.

    (3) B/E Aerospace Service Bulletin 22CXX-0100-35-003, Revision 2, dated July 10, 2014.

    (p) Credit for Previous Actions

    (1) This paragraph restates the requirements of paragraph (k) of AD 2014-13-12, with no changes. This paragraph provides credit for the actions required by paragraph (h) of this AD, if those actions were performed before September 9, 2014 (the effective date of AD 2014-13-12) using the service information specified in paragraph (p)(1)(i) or (p)(1)(ii) of this AD, as applicable to the oxygen container part number.

    (i) B/E Aerospace Service Bulletin 1XCXX-0100-35-005, dated March 14, 2011, which is not incorporated by reference in this AD.

    (ii) B/E Aerospace Service Bulletin 22CXX-0100-35-003, dated March 17, 2011, which is not incorporated by reference in this AD.

    (2) This paragraph provides credit for the actions required by paragraphs (l)(3) and (o) of this AD, if those actions were performed before the effective date of this AD using the service information specified in paragraph (p)(2)(i) or (p)(2)(ii) of this AD, as applicable to the oxygen container part number.

    (i) B/E Aerospace Service Bulletin 1XCXX-0100-35-005, Revision 1, dated December 15, 2012, which is incorporated by reference in AD 2014-13-12.

    (ii) B/E Aerospace Service Bulletin 22CXX-0100-35-003, Revision 1, dated December 20, 2011, which is incorporated by reference in AD 2014-13-12.

    (q) Other FAA AD Provisions

    The following provisions also apply to this AD:

    (1) Alternative Methods of Compliance (AMOCs): The Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the International Branch, send it to ATTN: Sanjay Ralhan, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057-3356; telephone 425-227-1405; fax 425-227-1149. Information may be emailed to: [email protected].

    (i) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office. The AMOC approval letter must specifically reference this AD.

    (ii) AMOCs approved previously for AD 2014-13-12, are approved as AMOCs for the corresponding provisions of paragraphs (g) through (j) of this AD.

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

    (r) Related Information

    (1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA Airworthiness Directive 2014-0208, dated September 16, 2014, for related information. This MCAI may be found in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-4228.

    (2) For Airbus service information identified in this AD, contact Airbus, Airworthiness Office—EIAS, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 44 51; email [email protected]; Internet http://www.airbus.com. For B/E Aerospace service information identified in this proposed AD, contact BE Aerospace Systems GmbH, Revalstrasse 1, 23560 Lübeck, Germany; telephone (49) 451 4093-2976; fax (49) 451 4093-4488. You may view this service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221.

    Issued in Renton, Washington, on March 14, 2016. Michael Kaszycki, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2016-06247 Filed 3-18-16; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration 21 CFR Part 573 [Docket No. FDA-2016-F-0784] Global Nutrition International; Filing of Food Additive Petition (Animal Use) AGENCY:

    Food and Drug Administration, HHS.

    ACTION:

    Notice of petition.

    SUMMARY:

    The Food and Drug Administration (FDA) is announcing we have filed a petition, submitted by Global Nutrition International, proposing that the food additive regulations be amended to provide for the safe use of calcium butyrate as a source of energy in dairy cattle feed.

    DATES:

    The food additive petition was filed on February 12, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Chelsea Trull, Center for Veterinary Medicine, Food and Drug Administration, 7519 Standish Pl., Rockville, MD 20855, 240-402-6729, [email protected].

    SUPPLEMENTARY INFORMATION:

    Under the Federal Food, Drug, and Cosmetic Act (section 409(b)(5) (21 U.S.C. 348(b)(5))), we are giving notice that we have filed a food additive petition (FAP 2294), submitted by Global Nutrition International, Zac de Paron, 5 Rue des Compagnons d'Emmaüs, BP 70166, 35301 Fougères Cedex, France. The petition proposes to amend the food additive regulations in 21 CFR part 573 Food Additives Permitted in Feed and Drinking Water of Animals to provide for the safe use of calcium butyrate as a source of energy in dairy cattle feed.

    The petitioner has claimed that this action is categorically excluded under 21 CFR 25.32(r) because it is of a type that does not individually or cumulatively have a significant effect on the human environment. In addition, the petitioner has stated that to their knowledge, no extraordinary circumstances exist. If FDA determines a categorical exclusion applies, neither an environmental assessment nor an environmental impact statement is required. If FDA determines a categorical exclusion does not apply, we will request an environmental assessment and make it available for public inspection.

    Dated: March 15, 2016. Tracey H. Forfa, Acting Director, Center for Veterinary Medicine.
    [FR Doc. 2016-06199 Filed 3-18-16; 8:45 am] BILLING CODE 4164-01-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket Number USCG-2016-0095] RIN 1625-AA00 Safety Zone; Hope Chest Buffalo Niagara Dragon Boat Festival, Buffalo River, Buffalo, NY AGENCY:

    Coast Guard, DHS.

    ACTION:

    Notice of proposed rulemaking.

    SUMMARY:

    The Coast Guard proposes to establish a temporary safety zone for certain waters of the Buffalo River. This action is necessary to provide for the safety of life on these navigable waters near Buffalo River Works, Buffalo, NY, during the Hope Chest Buffalo Niagara Dragon Boat Festival on June 18, 2016. This proposed rulemaking would prohibit persons and vessels from passing through the safety zone during race heats unless authorized by the Captain of the Port Buffalo or a designated representative. We invite your comments on this proposed rulemaking.

    DATES:

    Comments and related material must be received by the Coast Guard on or before April 20, 2016.

    ADDRESSES:

    You may submit comments identified by docket number USCG-2016-0095 using the Federal eRulemaking Portal at http://www.regulations.gov. See the “Public Participation and Request for Comments” portion of the SUPPLEMENTARY INFORMATION section for further instructions on submitting comments.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions about this proposed rulemaking, call or email LTJG Amanda Garcia, Chief of Waterways Management, U.S. Coast Guard Sector Buffalo; telephone 716-843-9573, email [email protected]

    SUPPLEMENTARY INFORMATION:

    I. Table of Abbreviations CFR Code of Federal Regulations COTP Captain of the Port DHS Department of Homeland Security FR Federal Register NPRM Notice of proposed rulemaking § Section U.S.C. United States Code II. Background, Purpose, and Legal Basis

    On January 12, 2016, the Hope Chest Buffalo (Lumanina Crop) notified the Coast Guard that it will be conducting a series of dragon boat races from 7 a.m. to 6 p.m. on June 18, 2016. The dragon boat races are to take place in the Buffalo River behind the Buffalo River Works restaurant in a 300 meter long course consisting of 4 lanes, each 10 meters wide in Buffalo, NY. The Captain of the Port Buffalo (COTP) has determined that a boating race event on a navigable waterway will pose a significant risk to participants and the boating public.

    The purpose of this rulemaking is to ensure the safety of vessels and the navigable waters within the race course during heats of the scheduled event. Vessel traffic will be allowed to pass through the safety zone between heats. The Coast Guard proposes this rulemaking under authority in 33 U.S.C. 1231.

    III. Discussion of Proposed Rule

    The COTP proposes to establish a safety zone from 6:45 a.m. to 6:15 p.m. on June 18, 2016, that would be effective and enforced intermittently. The safety zone would cover all navigable waters of the Buffalo River; Buffalo, NY starting at position 42°52′ 12.6012″ N. and 078°52′ 17.6442″ W. then Southeast to 42°52′ 3.165″ N. and 078°52′ 12.432″ W. then East to 42°52′ 3.6768″ N. and 078°52′ 10.347″ W. then Northwest to 42°52′ 13.407″ N. and 078°52′ 15.9096″ W. then returning to the point of origin. The duration of the zone is intended to ensure the safety of vessels and these navigable waters before, during, and after the scheduled 7 a.m. to 6 p.m. racing event. Vessels will be permitted to pass through the safety zone in between heats. No vessel or person would be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative. The regulatory text we are proposing appears at the end of this document.

    IV. Regulatory Analyses

    We developed this proposed rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders and we discuss First Amendment rights of protestors.

    A. Regulatory Planning and Review

    Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This NPRM has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, the NPRM has not been reviewed by the Office of Management and Budget.

    This regulatory action determination is based on the size, location, duration, and time-of-day of the safety zone. Vessel traffic would be able to safely transit through this safety zone in between race heats which would impact a small designated area of the Buffalo River for one day. Moreover, the Coast Guard would issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone, and the rule would allow vessels to seek permission to enter the zone.

    B. Impact on Small Entities

    The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities.

    While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section IV.A above this proposed rule would not have a significant economic impact on any vessel owner or operator.

    If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see ADDRESSES) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

    Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 104-121), we want to assist small entities in understanding this proposed rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section. The Coast Guard will not retaliate against small entities that question or complain about this proposed rule or any policy or action of the Coast Guard.

    C. Collection of Information

    This proposed rule would not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

    D. Federalism and Indian Tribal Governments

    A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this proposed rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.

    Also, this proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this proposed rule has implications for federalism or Indian tribes, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section.

    E. Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

    F. Environment

    We have analyzed this proposed rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This proposed rule involves the establishment of a safety zone lasting 11.5 hours that would prohibit entry within the zone during heats. Normally such actions are categorically excluded from further review under paragraph 34(g) of Figure 2-1 of Commandant Instruction M16475.lD. A preliminary environmental analysis checklist and Categorical Exclusion Determination are available in the docket where indicated under ADDRESSES. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.

    G. Protest Activities

    The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the FOR FURTHER INFORMATION CONTACT section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places, or vessels.

    V. Public Participation and Request for Comments

    We view public participation as essential to effective rulemaking, and will consider all comments and material received during the comment period. Your comment can help shape the outcome of this rulemaking. If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation.

    We encourage you to submit comments through the Federal eRulemaking Portal at http://www.regulations.gov. If your material cannot be submitted using http://www.regulations.gov, contact the person in the FOR FURTHER INFORMATION CONTACT section of this document for alternate instructions.

    We accept anonymous comments. All comments received will be posted without change to http://www.regulations.gov and will include any personal information you have provided. For more about privacy and the docket, you may review a Privacy Act notice regarding the Federal Docket Management System in the March 24, 2005, issue of the Federal Register (70 FR 15086).

    Documents mentioned in this NPRM as being available in the docket, and all public comments, will be in our online docket at http://www.regulations.gov and can be viewed by following that Web site's instructions. Additionally, if you go to the online docket and sign up for email alerts, you will be notified when comments are posted or a final rule is published.

    List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.

    For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 165 as follows:

    PART 165—REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS 1. The authority citation for part 165 continues to read as follows: Authority:

    33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 0170.1.

    2. Add § 165.T09-0095 to read as follows:
    § 165.T09-0095 Safety Zone; Hope Chest Buffalo Niagara Dragon Boat Festival, Buffalo River, Buffalo, NY.

    (a) Location. This zone will cover all navigable waters of the Buffalo River; Buffalo, NY starting at position 42°52′12.6012″ N. and 078°52′17.6442″ W. then Southeast to 42°52′3.165″ N. and 078°52′12.432″ W. then East to 42°52′3.6768″ N. and 078°52′10.347″ W. then Northwest to 42°52′13.407″ N. and 078°52′15.9096″ W. then returning to the point of origin.

    (b) Enforcement Period. This regulation will be enforced intermittently on June 18, 2016 from 6:45 a.m. until 6:15 p.m.

    (c) Regulations.

    (1) In accordance with the general regulations in § 165.23 of this part, entry into, transiting, or anchoring within this safety zone is prohibited unless authorized by the Captain of the Port Buffalo or his designated on-scene representative.

    (2) This safety zone is closed to all vessel traffic, except as may be permitted by the Captain of the Port Buffalo or his designated on-scene representative.

    (3) The “on-scene representative” of the Captain of the Port Buffalo is any Coast Guard commissioned, warrant or petty officer who has been designated by the Captain of the Port Buffalo to act on his behalf.

    (4) Vessel operators desiring to enter or operate within the safety zone must contact the Captain of the Port Buffalo or his on-scene representative to obtain permission to do so. The Captain of the Port Buffalo or his on-scene representative may be contacted via VHF Channel 16. Vessel operators given permission to enter or operate in the safety zone must comply with all directions given to them by the Captain of the Port Buffalo, or his on-scene representative.

    Dated: February 24, 2016. B.W. Roche, Captain, U.S. Coast Guard, Captain of the Port Buffalo.
    [FR Doc. 2016-06312 Filed 3-18-16; 8:45 am] BILLING CODE 9110-04-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket Number USCG-2016-0162] RIN 1625-AA00 Safety Zone; Richland Regatta, Columbia River, Richland, WA AGENCY:

    Coast Guard, DHS.

    ACTION:

    Notice of proposed rulemaking.

    SUMMARY:

    The Coast Guard proposes to establish a safety zone for certain waters of the Columbia River in the vicinity of Howard Amon Park, Richland, WA, between River Miles 337 and 338, during a hydroplane boat race from June 3, 2016, through June 5, 2016. This action is necessary to provide for the safety of life on the navigable waters during the event. This proposed rulemaking would prohibit persons and vessels from being in the safety zone unless authorized by the Captain of the Port Sector Columbia River or a designated representative. We invite your comments on this proposed rulemaking.

    DATES:

    Comments and related material must be received by the Coast Guard on or before April 20, 2016.

    ADDRESSES:

    You may submit comments identified by docket number USCG-2016-0162 using the Federal eRulemaking Portal at http://www.regulations.gov. See the “Public Participation and Request for Comments” portion of the SUPPLEMENTARY INFORMATION section for further instructions on submitting comments.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions about this proposed rulemaking, call or email Mr. Ken Lawrenson, Waterways Management Division, MSU Portland, OR, U.S. Coast Guard; telephone 503-240-9319, email [email protected]

    SUPPLEMENTARY INFORMATION: I. Table of Abbreviations CFR Code of Federal Regulations DHS Department of Homeland Security FR Federal Register NPRM Notice of proposed rulemaking § Section U.S.C. United States Code II. Background, Purpose, and Legal Basis

    On December 21, 2015, the Northwest Power Boat Association notified the Coast Guard that it will be conducting a hydroplane boat race from 7 a.m. to 7 p.m. daily from June 3, 2016, through June 5, 2016, as part of the Richland Regatta. The race will be held in the vicinity of Howard Amon Park, Richland, WA, and poses significant dangers to the maritime public including excessive noise, vessels racing at high speeds in proximity to other vessels, and flying debris in the event of an accident. The Captain of the Port Sector Columbia River (COTP) has determined these potential hazards would be a safety concern for maritime traffic.

    The purpose of this rulemaking is to ensure the safety of vessels and the navigable waters before, during and after daily scheduled races. The Coast Guard proposes this rulemaking under authority in 33 U.S.C. 1231.

    III. Discussion of Proposed Rule

    The COTP proposes to enforce a safety zone from 7 a.m. to 7 p.m. daily from June 3, 2016, through June 5, 2016. The safety zone would include all navigable waters of the Columbia River on all navigable waters of the Columbia River between River Miles 337 and 338 in the vicinity of oward Amon Park, Richland, WA. The duration of the zone is intended to ensure the safety of vessels and these navigable waters before, during, and after the scheduled event. No vessel or person would be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative. The regulatory text we are proposing appears at the end of this document.

    IV. Regulatory Analyses

    We developed this proposed rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders and we discuss First Amendment rights of protestors.

    A. Regulatory Planning and Review

    Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This NPRM has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, the NPRM has not been reviewed by the Office of Management and Budget.

    This regulatory action determination is based on the following factors. The safety zone will only be effective for 12 hours daily over a 3 day period, and while non-participant vessels will be unable to enter, trainsit through, anchor in, or remain within the event area without authorization from the Captain of the Port Sector Columbia River or a designated representative, they may operate in the surrounding areas during the enforcement period. Additionally, non-participant vessels may still enter, transit through, anchor in, or remain within the event area during the enforcement period if authorized by the COTP Sector Columbia River or a designated representative. Moreover, the Coast Guard would issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone, and the rule would allow vessels to seek permission to enter the zone.

    B. Impact on Small Entities

    The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities.

    While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section IV.A above this proposed rule would not have a significant economic impact on any vessel owner or operator.

    If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see ADDRESSES) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

    Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section. The Coast Guard will not retaliate against small entities that question or complain about this proposed rule or any policy or action of the Coast Guard.

    C. Collection of Information

    This proposed rule would not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

    D. Federalism and Indian Tribal Governments

    A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this proposed rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.

    Also, this proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this proposed rule has implications for federalism or Indian tribes, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section.

    E. Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

    F. Environment

    We have analyzed this proposed rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This proposed rule involves a safety zone that would be enforced from 7 a.m. to 7 p.m. daily from June 3, 2016, through June 5, 2016. The safety zone would cover navigable waters of the Columbia River between River Miles 337 and 338 in the vicinity of oward Amon Park, Richland, WA. Normally such actions are categorically excluded from further review under paragraph 34(g) of Figure 2-1 of Commandant Instruction M16475.lD. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.

    G. Protest Activities

    The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the FOR FURTHER INFORMATION CONTACT section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places, or vessels.

    V. Public Participation and Request for Comments

    We view public participation as essential to effective rulemaking, and will consider all comments and material received during the comment period. Your comment can help shape the outcome of this rulemaking. If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation.

    We encourage you to submit comments through the Federal eRulemaking Portal at http://www.regulations.gov. If your material cannot be submitted using http://www.regulations.gov, contact the person in the FOR FURTHER INFORMATION CONTACT section of this document for alternate instructions.

    We accept anonymous comments. All comments received will be posted without change to http://www.regulations.gov and will include any personal information you have provided. For more about privacy and the docket, you may review a Privacy Act notice regarding the Federal Docket Management System in the March 24, 2005, issue of the Federal Register (70 FR 15086).

    Documents mentioned in this NPRM as being available in the docket, and all public comments, will be in our online docket at http://www.regulations.gov and can be viewed by following that Web site's instructions. Additionally, if you go to the online docket and sign up for email alerts, you will be notified when comments are posted or a final rule is published.

    List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.

    For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 165 as follows:

    PART 165—REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS 1. The authority citation for part165 continues to read as follows: Authority:

    33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 0170.1.

    2. Add § 165.T13-0162 to read as follows:
    § 165.T13-0162 Safety Zone; Richland Regatta, Columbia River, Richland, WA.

    (a) Regulated area. The following regulated area is a safety zone. The safety zone will include all navigable waters of the Columbia River in the vicinity of Howard Amon Park, Richland, WA, between River Miles 337 and 338.

    (b) Definitions. (1) The term “designated representative” means Coast Guard Patrol Commanders, including Coast Guard coxswains, petty officers, and other officers operating Coast Guard vessels, and Federal, state, and local officers designated by or assisting the Captain of the Port Sector Columbia River in the enforcement of the regulated area.

    (2) The term “Non-participant persons and vessels” means a vessel or person not participating in the event as a participant, spectator, or event attendee.

    (c) Regulations. (1) In accordance with the general regulations in subpart C of this part, non-participant persons and vessels are prohibited from entering, transiting through, anchoring in, or remaining within the regulated area unless authorized by Captain of the Port Sector Columbia River or a designated representative.

    (2) Non-participant persons and vessels may request authorization to enter, transit through, anchor in, or remain within the regulated area by contacting the Captain of the Port Sector Columbia River or a designated representative via VHF radio on channel 16. If authorization is granted by the Captain of the Port Sector Columbia River or a designated representative, all persons and vessels receiving such authorization must comply with the instructions of the Captain of the Port Sector Columbia River or a designated representative.

    (d) Enforcement period. This safety zone as described in paragraph (a) of this section will be enforced from 7 a.m. to 7 p.m. each day from June 3, 2016, through June 5, 2016.

    Dated: March 4, 2016. D.J. Travers, Captain, U.S. Coast Guard, Captain of the Port, Sector Columbia River.
    [FR Doc. 2016-05880 Filed 3-18-16; 8:45 am] BILLING CODE 9110-04-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket Number USCG-2016-0138] RIN 1625-AA00 Safety Zone; Cocos Lagoon, Merizo, GU AGENCY:

    Coast Guard, DHS.

    ACTION:

    Notice of proposed rulemaking.

    SUMMARY:

    The Coast Guard proposes to establish a safety zone for Coco's Crossing swim event in the waters of Coco's Lagoon, Guam. This event is scheduled to take place from 6 a.m. to 1 p.m. on May 29, 2015. This safety zone is necessary to protect all persons and vessels participating in this marine event from potential safety hazards associated with vessel traffic in the area. Race participants, chase boats and organizers of the event will be exempt from the safety zone. Entry of persons or vessels into this safety zone is prohibited unless authorized by the Captain of the Port (COTP). We invite your comments on this proposed rulemaking.

    DATES:

    Comments and related material must be received by the Coast Guard on or before April 20, 2016.

    ADDRESSES:

    You may submit comments identified by docket number USCG-2016-0138 using the Federal eRulemaking Portal at http://www.regulations.gov. See the “Public Participation and Request for Comments” portion of the SUPPLEMENTARY INFORMATION section for further instructions on submitting comments.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions about this proposed rulemaking, call or email Chief Kristina Gauthier, U.S. Coast Guard Sector Guam at (671) 355-4866, email [email protected]

    SUPPLEMENTARY INFORMATION:

    I. Table of Abbreviations CFR Code of Federal Regulations DHS Department of Homeland Security FR Federal Register NPRM Notice of proposed rulemaking § Section U.S.C. United States Code II. Background, Purpose, and Legal Basis

    On February 16, 2016, the Coast Guard was notified of the intent of the Manukai Athletic Club and The Manhoben Swim Club to hold the Coco's Crossing swimming race on May 29, 2016 from 6 a.m. to 1 p.m. in Merizo. The race will be from the Merizo pier to Coco's Island and back. This safety zone is necessary to protect all persons and vessels participating in this marine event from potential safety hazards associated with vessel traffic in the area. The Captain of the Port Guam has determined that potential hazards associated with vessels in the area would be a safety concern for participants; therefore, a 100-yard radius is established around all participants.

    The purpose of this rulemaking is to ensure the safety of race participants in the navigable waters within a 100-yard radius before, during, and after the scheduled event. The Coast Guard proposes this rulemaking under authority in 33 U.S.C. 1231.

    III. Discussion of Proposed Rule

    The COTP proposes to establish a safety zone from 6 a.m. to 1 p.m. on May 29, 2016. The safety zone would cover all navigable waters within a 100-yard radius of race participants in Merizo and Coco's Lagoon. The duration of the zone is intended to ensure the safety of participants before, during, and after the scheduled 6 a.m. to 1 p.m. race. No vessel or person would be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative. Race participants, chase boats and organizers of the event are exempt from the safety zone. The regulatory text we are proposing appears at the end of this document.

    IV. Regulatory Analyses

    We developed this proposed rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders and we discuss First Amendment rights of protestors.

    A. Regulatory Planning and Review

    Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This NPRM has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, the NPRM has not been reviewed by the Office of Management and Budget.

    This regulatory action determination is based on the size, location, duration, and time-of-day of the safety zone. Vessel traffic would be able to safely transit around this safety zone which would impact a small designated area of the Merizo and Coco's Lagoon for 7 hours in the morning when vessel traffic in the area is low and mainly constitutes excursions to Coco's Island. Moreover, the Coast Guard would issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone, and the rule would allow vessels to seek permission to enter the zone.

    B. Impact on Small Entities

    The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities.

    While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section IV.A above this proposed rule would not have a significant economic impact on any vessel owner or operator.

    If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see ADDRESSES) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

    Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section. The Coast Guard will not retaliate against small entities that question or complain about this proposed rule or any policy or action of the Coast Guard.

    C. Collection of Information

    This proposed rule would not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

    D. Federalism and Indian Tribal Governments

    A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this proposed rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.

    Also, this proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this proposed rule has implications for federalism or Indian tribes, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section.

    E. Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

    F. Environment

    We have analyzed this proposed rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This proposed rule involves a safety zone lasting less than 7 hours that would prohibit entry within 200 yards of race participants. Normally such actions are categorically excluded from further review under paragraph 34(g) of Figure 2-1 of Commandant Instruction M16475.lD. A preliminary environmental analysis checklist and Categorical Exclusion Determination are available in the docket where indicated under ADDRESSES. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.

    G. Protest Activities

    The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the FOR FURTHER INFORMATION CONTACT section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places, or vessels.

    V. Public Participation and Request for Comments

    We view public participation as essential to effective rulemaking, and will consider all comments and material received during the comment period. Your comment can help shape the outcome of this rulemaking. If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation.

    We encourage you to submit comments through the Federal eRulemaking Portal at http://www.regulations.gov. If your material cannot be submitted using http://www.regulations.gov, contact the person in the FOR FURTHER INFORMATION CONTACT section of this document for alternate instructions.

    We accept anonymous comments. All comments received will be posted without change to http://www.regulations.gov and will include any personal information you have provided. For more about privacy and the docket, you may review a Privacy Act notice regarding the Federal Docket Management System in the March 24, 2005, issue of the Federal Register (70 FR 15086).

    Documents mentioned in this NPRM as being available in the docket, and all public comments, will be in our online docket at http://www.regulations.gov and can be viewed by following that Web site's instructions. Additionally, if you go to the online docket and sign up for email alerts, you will be notified when comments are posted or a final rule is published.

    List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reporting and record-keeping requirements, Security measures, Waterways.

    For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 165 as follows:

    PART 165—SAFETY ZONE; COCOS LAGOON, MERIZO, GU 1. The authority citation for part 165 continues to read as follows: Authority:

    33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 0170.1.

    2. Add § 165.T14-0138 to read as follows:
    165. T14-0138 Safety Zone; Cocos Lagoon, Merizo, Guam.

    (a) Location. The following area, within the Guam Captain of the Port (COTP) Zone (See 33 CFR 3.70-15), all navigable waters within a 100-yard radius of race participants in Merizo and Coco's Lagoon. Race participants, chase boats and organizers of the event will be exempt from the safety zone.

    (b) Effective Dates. This rule is effective from 6 a.m. through 1 p.m. on May 29, 2016 through 1 p.m.

    (c) Enforcement. Any Coast Guard commissioned, warrant, or petty officer, and any other COTP representative permitted by law, may enforce this temporary safety zone.

    (d) Waiver. The COPT may waive any of the requirements of this rule for any person, vessel or class of vessel upon finding that application of the safety zone is unnecessary or impractical for the purpose of maritime security,

    (g) Penalties. Vessels or persons violating this rule are subject to the penalties set forth in 33 U.S.C. 1232 and 50 U.S.C. 192.

    Dated: March 2, 2016. James B. Pruett, Captain, U.S. Coast Guard, Captain of the Port Guam.
    [FR Doc. 2016-06294 Filed 3-18-16; 8:45 am] BILLING CODE 9110-04-P
    FEDERAL MARITIME COMMISSION 46 CFR Parts 502, 503, 515, 520, 530, 535, 540, 550, 555, and 560 [Docket No. 16-06] RIN 3072-AC34 Update of Existing and Addition of New User Fees AGENCY:

    Federal Maritime Commission.

    ACTION:

    Advance notice of proposed rulemaking.

    SUMMARY:

    The Federal Maritime Commission (Commission) is considering amending its current user fees and invites public comment on whether the Commission should amend its user fees. Specifically, the Commission is considering increasing fees for: Filing complaints and certain petitions; records searches, document copying, and admissions to practice; paper filing of ocean transportation intermediary (OTI) applications; filing applications for special permission; and filing agreements.

    The Commission is also considering lowering fees for: Reviewing Freedom of Information Act (FOIA) requests; revising clerical errors on service contracts; revising clerical errors on non-vessel-operating common carrier (NVOCC) service agreements; and Commission services to passenger vessel operators (PVOs).

    In addition, the Commission is considering repealing four existing fees for: Adding interested parties to a specific docket mailing list; the Regulated Persons Index database; database reports on Effective Carrier Agreements; and filing petitions for rulemaking. The Commission is also considering adding a new fee for requests for expedited review of an agreement filing.

    DATES:

    Comments are due on or before: April 18, 2016.

    ADDRESSES:

    You may submit comments, identified by the docket number in the heading of this document, by any of the following methods:

    Email: [email protected] Include in the subject line: “Docket No. 16-06, Comments on Update of User Fees.” Comments should be attached to the email as a Microsoft Word or text-searchable PDF document. Comments containing confidential information should not be submitted by email.

    Mail: Karen V. Gregory, Secretary, Federal Maritime Commission, 800 North Capitol Street NW., Washington, DC 20573-0001. Phone: (202) 523-5725. Email: [email protected]

    • Docket: For access to the docket to read background documents or comments received, go to: http://www.fmc.gov/16-06, select Docket No. 16-06 from the drop-down list next to “Proceeding or Inquiry Number” and click the “Search” option.

    FOR FURTHER INFORMATION CONTACT:

    Karen V. Gregory, Secretary, Federal Maritime Commission, 800 North Capitol Street NW., Washington, DC 20573-0001. Phone: (202) 523-5725. Email: [email protected]

    SUPPLEMENTARY INFORMATION:

    The Commission's current user fees are based on an assessment of fiscal year 2004 costs and have not been updated since 2005.1 Consequently, many of the current user fees no longer represent the Commission's actual costs for providing services. The Commission is seeking comments on possible adjustments to its user fees based on fiscal year 2015 costs assessed through a new methodology for calculating costs for services provided by the Commission.

    1 The Commission established the fee for filing or updating OTI license applications electronically in 2007.

    The Independent Offices Appropriation Act of 1952 (IOAA), 31 U.S.C. 9701, authorizes agencies to establish charges (user fees) for services and benefits that it provides to specific recipients. Under the IOAA, charges must be fair and based on the costs to the Government, the value of the service or thing to the recipient, the public policy or interest served, and other relevant facts. The IOAA also provides that regulations implementing user fees are subject to policies prescribed by the President, which are currently set forth in OMB Circular A-25, User Charges (revised July 8, 1993).

    OMB Circular A-25 requires agencies to conduct a periodic reassessment of costs and, if necessary, adjust or establish new fees. Under OMB Circular A-25, fees should be established for Government-provided services that confer benefits on identifiable recipients over and above those benefits received by the general public. OMB Circular A-25 also provides that agencies should determine or estimate costs based on the best available records in the agency, and that cost computations must cover the direct and indirect costs to the agency providing the activity.

    Fee Assessment Methodology

    Applying the guidance for assessing fees provided in OMB Circular A-25, the Commission has revised its methodology for computing fees to determine the full costs of providing services.2 A detailed description of the methodology, as established by the Commission's Office of Budget and Finance, is available in the docket to this rulemaking.

    2 The revised methodology also satisfies the recommendations set forth in the Commission's Office of Inspector General's report, Review of FMC's User Fee Calculations (May 27, 2010).

    The Commission has developed data on the time and cost involved in providing particular services to arrive at the updated direct and indirect labor costs for those services. As part of its assessment, the Commission utilized salaries of Full Time Equivalents (FTEs) assigned to fee-generating activities to identify the various direct and indirect costs associated with providing services. Direct labor costs include clerical and professional time expended on an activity. Indirect labor costs include labor provided by bureaus and offices that provide direct support to the fee-generating offices in their efforts to provide services, and include managerial and supervisory costs associated with providing a particular service. Other indirect costs include Government overhead costs, such as fringe benefits and other wage-related Government contributions contained in OMB Circular A-76, Performance of Commercial Activities (revised May 29, 2003) and office general and administrative expenses.3 The sum of these indirect cost components gives an indirect cost factor that is added to the direct labor costs of an activity to arrive at the fully distributed cost.

    3 OMB Circular A-76 lists the following indirect labor costs: leave and holidays, retirement, worker's compensation, awards, health and life insurance, and Medicare. General and administrative costs are expressed as a percentage of basic pay. These include all salaries and overhead such as rent, utilities, supplies, and equipment allocated to Commission offices that provide direct support to fee-generating offices such as the Office of the Managing Director, Office of Information Technology, Office of Human Resources, Office of Budget and Finance, and the Office of Management Services.

    Proposed Fee Adjustments

    The adjustments the Commission is considering would allow some user fees to remain unchanged; increase, reduce, or delete other fees; and add one new fee. The Commission is considering making upward adjustments of fees to reflect increases in salary and indirect (overhead) costs. For some services, an increase in processing or review time may account for all or part of increase in the amount of the proposed fees. For other services, fees may be lower than current fees due to an overall reduced cost to provide those services.

    The Commission assesses nominal processing fees for services related to the filing of complaints and certain petitions; various public information services, such as records searches, document copying, and admissions to practice; and filing applications for special permission. Due to an increase in the processing cost of these services, the Commission is considering adjusting upward these administrative fees based on an assessment of fiscal year 2015 costs. Similarly, the Commission is considering adjusting upward the user fees associated with agreements filed under 46 CFR part 535 because of the increase in reviewing and analyzing the agreement filings.

    With respect to OTI license applications, the Commission offers lower fees for electronic filing of license applications through its FMC-18 automated filing system. The Commission first adopted lower fees in 2007 to promote the use of the electronic filing option by the public and to facilitate the transfer of OTI records from a paper-based format to a more convenient and accessible digital format.4 As intended, the majority of OTI applicants are using the automated system and paying the reduced fees. In fiscal year 2015, the total number of OTI applicants using the automated filing system at the reduced fees was 619, and the total number of OTI applicants filing their applications in paper format at the higher fees was 44. This program has been successful and the Commission is considering continuing to offer the lower fees for electronic filing at the current fee amounts.5

    4 FMC Docket No. 07-08, Optional Method of Filing Form FMC-18, Application for a License as an Ocean Transportation Intermediary, 72 FR 44976, 44977 (Aug. 10, 2007).

    5 While the automated filing system allows users to file their applications electronically, the automated system for processing the applications is still under development. The fees for the electronic filing of OTI applications will be addressed by the Commission when the entire FMC-18 automated system is complete and operational, and the costs of the system and its impact on the review of OTI applications can be quantified.

    The Commission is considering decreasing fees for the Commission's services to passenger vessel operators (PVOs) under 46 CFR part 540. These services include reviewing and processing the application for certification on performance; the supplemental application on performance for the addition or substitution of a vessel; the application for certification on casualty, and the supplemental application on casualty for the addition or substitution of a vessel.

    For reviews of requests filed under FOIA and requests for revisions of clerical errors on service contracts, the Commission is considering lowering the fees due to the change in grade level of the professional staff that review FOIA requests.

    The Commission is considering repealing the user fee for obtaining a copy of the Regulated Persons Index given that it is currently available on the Commission's Web site. The Commission is also considering repealing the current fee assessed for adding an interested party to a specific docket mailing list under § 503.50(d), and the fee assessed under § 535.401(h) for obtaining a Commission agreement database report.

    In addition, the Commission is considering repealing the user fee for filing petitions for rulemaking found in § 503.51(a). This would align the Commission with the practice of other agencies, the vast majority of which do not impose a fee to file petitions for rulemaking. Repealing this user fee would also enhance access to the rulemaking process, thereby making it fairer and more open.

    The Commission is also considering adding a new fee for processing requests for expedited review of an agreement under § 535.605, which allows filing parties to request that the 45-day waiting period be shortened to meet an operational urgency. The Commission believes that a fee for processing such requests is necessary to recoup the cost of publishing a separate Federal Register notice for expedited review. This new fee would be assessed in addition to the underlying agreement filing fee required by § 535.401(g).

    The Commission welcomes comments on its new fee calculation methodology and possible fee adjustments.

    By the Commission.

    Karen V. Gregory, Secretary.
    [FR Doc. 2016-06241 Filed 3-18-16; 8:45 am] BILLING CODE 6731-AA-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 648 [Docket No. 151211999-6209-01] RIN 0648-BF62 Magnuson-Stevens Fishery Conservation and Management Act Provisions; Fisheries of the Northeastern United States; Northeast Groundfish Fishery; Framework Adjustment 55 AGENCY:

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

    ACTION:

    Proposed rule; request for comments.

    SUMMARY:

    This action proposes approval of, and regulations to implement, Framework Adjustment 55 to the Northeast Multispecies Fishery Management Plan. This rule would set 2016-2018 catch limits for all 20 groundfish stocks, adjust the groundfish at-sea monitoring program, and adopt several sector measures. This action is necessary to respond to updated scientific information and achieve the goals and objectives of the Fishery Management Plan. The proposed measures are intended to help prevent overfishing, rebuild overfished stocks, achieve optimum yield, and ensure that management measures are based on the best scientific information available.

    DATES:

    Comments must be received by April 5, 2016.

    ADDRESSES:

    You may submit comments, identified by NOAA-NMFS-2016-0019, by either of the following methods:

    Electronic Submission: Submit all electronic public comments via the Federal eRulemaking Portal.

    1. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2016-0019;

    2. Click the “Comment Now!” icon and complete the required fields; and

    3. Enter or attach your comments.

    Mail: Submit written comments to John K. Bullard, Regional Administrator, National Marine Fisheries Service, 55 Great Republic Drive, Gloucester, MA 01930. Mark the outside of the envelope, “Comments on the Proposed Rule for Groundfish Framework Adjustment 55.”

    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 us. All comments received are a part of the public record and will generally be posted for public viewing on www.regulations.gov without change. All personal identifying information (e.g., name, address, etc.), confidential business information, or otherwise sensitive information submitted voluntarily by the sender will be publicly accessible. We will accept anonymous comments (enter “N/A” in the required fields if you wish to remain anonymous).

    Copies of Framework Adjustment 55, including the draft Environmental Assessment, the Regulatory Impact Review, and the Initial Regulatory Flexibility Analysis prepared by the New England Fishery Management Council in support of this action are available from Thomas A. Nies, Executive Director, New England Fishery Management Council, 50 Water Street, Mill 2, Newburyport, MA 01950. The supporting documents are also accessible via the Internet at: http://www.nefmc.org/management-plans/northeast-multispecies or http://www.greateratlantic.fisheries.noaa.gov/sustainable/species/multispecies.

    Written comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this rule should be submitted to the Regional Administrator at the address above and to the Office of Management and Budget by email at [email protected], or fax to (202) 395-7285.

    FOR FURTHER INFORMATION CONTACT:

    Aja Szumylo, Fishery Policy Analyst, phone: 978-281-9195; email: [email protected].

    SUPPLEMENTARY INFORMATION: Table of Contents 1. Summary of Proposed Measures 2. Status Determination Criteria 3. 2016 Fishing Year Shared U.S./Canada Quotas 4. Catch Limits for the 2016-2018 Fishing Years 5. Default Catch Limits for the 2019 Fishing Year 6. Groundfish At-Sea Monitoring Program Adjustments 7. Other Framework 55 Measures 8. Sector Measures for the 2016 Fishing Year 9. 2016 Fishing Year Annual Measures Under Regional Administrator Authority 10. Regulatory Corrections Under Regional Administrator Authority 1. Summary of Proposed Measures

    This action would implement the management measures in Framework Adjustment 55 to the Northeast Multispecies Fishery Management Plan (FMP). The Council deemed the proposed regulations consistent with, and necessary to implement, Framework 55, in a February 25, 2016, letter from Council Chairman E.F. “Terry” Stockwell to Regional Administrator John Bullard. Under the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), we are required to publish proposed rules for comment after preliminarily determining whether they are consistent with applicable law. The Magnuson-Stevens Act permits us to approve, partially approve, or disapprove measures proposed by the Council based only on whether the measures are consistent with the fishery management plan, plan amendment, the Magnuson-Stevens Act and its National Standards, and other applicable law. Otherwise, we must defer to the Council's policy choices. We are seeking comment on the Council's proposed measures in Framework 55 and whether they are consistent with the Northeast Multispecies FMP and Amendment 16, the Magnuson-Stevens Act and its National Standards, and other applicable law. Through Framework 55, the Council proposes to:

    • Set 2016-2018 specifications for all 20 groundfish stocks;

    • Set fishing year 2016 shared U.S./Canada quotas for Georges Bank (GB) yellowtail flounder and Eastern GB cod and haddock;

    • Modify the industry-funded sector at-sea monitoring program to make the program more cost-effective, while still ensuring that groundfish catch is reliably monitored;

    • Create a new sector;

    • Modify the sector approval process so that new sectors would not have to be approved through a Council framework or amendment process;

    • Adjust gear requirements to improve the enforceability of selective trawl gear;

    • Remove the general Gulf of Maine (GOM) cod prohibition for recreational anglers established in Framework 53 (other recreational measures will be implemented in a separate rulemaking); and

    • Allow sectors to transfer GB cod quota from the eastern U.S./Canada Area to the western area.

    This action also proposes a number of other measures that are not part of Framework 55, but that may be considered and implemented under our authority specified in the FMP. We are proposing these measures in conjunction with the Framework 55 proposed measures for expediency purposes, and because these measures are related to the catch limits proposed as part of Framework 55. The additional measures proposed in this action are listed below.

    Management measures necessary to implement sector operations plans—this action proposes one new sector regulatory exemption and annual catch entitlements for 19 sectors for the 2016 fishing year.

    Management measures for the common pool fishery—this action proposes fishing year 2015 trip limits for the common pool fishery.

    Other regulatory corrections—we propose several administrative revisions to the regulations to clarify their intent, correct references, remove unnecessary text, and make other minor edits. Each proposed correction is described in the section “10. Regulatory Corrections Under Regional Administrator Authority.”

    2. Status Determination Criteria

    The Northeast Fisheries Science Center (NEFSC) conducted operational stock assessment updates in 2015 for all 20 groundfish stocks. The final report for the operational assessment updates is available on the NEFSC Web site: http://www.nefsc.noaa.gov/groundfish/operational-assessments-2015/. This action proposes to revise status determination criteria, as necessary, and provide updated numerical estimates of these criteria, in order to incorporate the results of the 2015 stock assessments. Table 1 provides the updated numerical estimates of the status determination criteria, and Table 2 summarizes changes in stock status based on the 2015 assessment updates. Stock status did not change for 15 of the 20 stocks, worsened for 2 stocks (Southern New England/Mid-Atlantic (SNE/MA) yellowtail flounder and GB winter flounder), improved for 1 stock (Northern windowpane flounder), and became more uncertain for 2 stocks (GB cod and Atlantic halibut).

    As described in more detail below, status determination relative to reference points is no longer possible for GB cod and Atlantic halibut. However, the proposed changes do not affect the rebuilding plans for these stocks. The rebuilding plan for GB cod has an end date of 2026, and the rebuilding plan for halibut has an end date of 2056. Although numerical estimates of status determination criteria are currently not available, to ensure that rebuilding progress is made, catch limits will continue to be set at levels that the Council's Scientific and Statistical Committee (SSC) determines will prevent overfishing. Additionally, at whatever point the stock assessment for GB cod and halibut can provide biomass estimates, these estimates will be used to evaluate progress towards the rebuilding targets.

    Table 1—Numerical Estimates of Status Determination Criteria Stock Biomass target
  • (SSBMSY or Proxy (mt))
  • Maximum fishing mortality threshold
  • (FMSY or Proxy)
  • MSY (mt)
    GB Cod NA NA NA M=0.2 Model 40,187 0.185 6,797 GOM Cod Mramp Model 59,045 0.187 10,043 GB Haddock 108,300 0.39 24,900 GOM Haddock 4,623 0.468 1,083 GB Yellowtail Flounder NA NA NA SNE/MA Yellowtail Flounder 1,959 0.35 541 CC/GOM Yellowtail Flounder 5,259 0.279 1,285 American Plaice 13,107 0.196 2,675 Witch Flounder 9,473 0.279 1,957 GB Winter Flounder 6,700 0.536 2,840 GOM Winter Flounder NA 0.23 exploitation rate NA SNE/MA Winter Flounder 26,928 0.325 7,831 Acadian Redfish 281,112 0.038 10,466 White Hake 32,550 0.188 5,422 Pollock 105,226 0.277 19,678 Northern Windowpane Flounder 1.554 kg/tow 0.45 c/i 700 Southern Windowpane Flounder 0.247 kg/tow 2.027 c/i 500 Ocean Pout 4.94 kg/tow 0.76 c/i 3,754 Atlantic Halibut NA NA NA Atlantic Wolffish 1,663 0.243 244 SSB = Spawning Stock Biomass; MSY = Maximum Sustainable Yield; F = Fishing Mortality; M = Natural Mortality. Note. A brief explanation of the two assessment models for GOM cod is provided in the section “4. Catch Limits for the 2016-2018 Fishing Years.”
    Table 2—Summary of Changes to Stock Status Stock Previous assessment Overfishing? Overfished? 2015 Assessment Overfishing? Overfished? GB Cod Yes Yes Yes Yes GOM Cod Yes Yes Yes Yes GB Haddock No No No No GOM Haddock No No No No GB Yellowtail Flounder Unknown Unknown Unknown Unknown SNE/MA Yellowtail Flounder No No Yes Yes CC/GOM Yellowtail Flounder Yes Yes Yes Yes American Plaice No No No No Witch Flounder Yes Yes Yes Yes GB Winter Flounder No No Yes Yes GOM Winter Flounder No Unknown No Unknown SNE/MA Winter Flounder No Yes No Yes Acadian Redfish No No No No White Hake No No No No Pollock No No No No Northern Windowpane Flounder Yes Yes No Yes Southern Windowpane Flounder No No No No Ocean Pout No Yes No Yes Atlantic Halibut No Yes No Yes Atlantic Wolffish No Yes No Yes Georges Bank Cod Status Determination Criteria

    The 2015 assessment update for GB cod was an update of the existing 2012 benchmark assessment (available at: http://www.nefsc.noaa.gov/saw/). The 2012 benchmark assessment determined that the stock is overfished, and that overfishing is occurring. The peer review panel for the 2015 assessment update concluded that the updated assessment model was not acceptable as a scientific basis for management advice. Several model performance-indicators suggested that the problems in the 2012 benchmark assessment are worse in the 2015 assessment update. There was a strong retrospective pattern in the benchmark assessment that worsened considerably in the assessment update. The retrospective pattern causes the model to overestimate stock biomass and underestimate fishing mortality. Neither assessment could definitively identify the cause of the retrospective pattern, but both cited uncertainty in the estimates of catch and/or natural mortality assumptions used in the assessments. The 2012 benchmark assessment accounted for the retrospective pattern using a retrospective adjustment. However, when the retrospective adjustment was applied in the 2015 assessment update to generate short-term catch projections, the assessment model failed. Based on this, and other indications that the model is no longer a good fit for the available data, the review panel recommended that an alternative approach should be used to provide management advice.

    Although the review panel concluded that GB cod catch advice should be based on an alternative approach, it recommended that the 2012 benchmark assessment is the best scientific information for stock status determination. All information available in the 2015 assessment update indicates that stock size has not increased, and that the condition of the stock is still poor. As a result, based on the 2015 assessment update, the stock remains overfished and overfishing is occurring. However, because the assessment model was not accepted during the 2015 assessment, there are no longer numerical estimates of the status determination criteria.

    Atlantic Halibut Status Determination Criteria

    This 2015 assessment update for Atlantic halibut is an operational update of the existing 2010 benchmark assessment and a 2012 assessment update (both available at: http://www.nefsc.noaa.gov/saw/). The previous assessments determined that the stock was overfished but that overfishing was not occurring. Though the previous assessments were used to provide catch advice and make status determinations for this stock, the review panel for the 2015 assessment update saw a number of limitations in the model and concluded it was no longer an appropriate basis for management advice. All information available for the 2015 assessment indicates that the stock has not increased, and that the condition of the stock is still poor. However, the results of the assessment model indicated that the stock is near or above its unfished biomass and could support a directed fishery. The review panel noted that the model is very simplistic and uses a number of assumptions (e.g., no immigration or emigration from the stock) that are likely not true for the stock. As a result, the review panel recommended a benchmark assessment to develop a new Atlantic halibut stock assessment model and explore stock boundaries. In the interim, the peer review panel recommended that an alternative approach should be used to provide management advice.

    3. 2016 Fishing Year U.S./Canada Quotas Management of Transboundary Georges Bank Stocks

    Eastern GB cod, eastern GB haddock, and GB yellowtail flounder are jointly managed with Canada under the United States/Canada Resource Sharing Understanding. Each year, the Transboundary Management Guidance Committee (TMGC), which is a government-industry committee made up of representatives from the U.S. and Canada, recommends a shared quota for each stock based on the most recent stock information and the TMGC's harvest strategy. The TMGC's harvest strategy for setting catch levels is to maintain a low to neutral risk (less than 50 percent) of exceeding the fishing mortality limit for each stock. The harvest strategy also specifies that when stock conditions are poor, fishing mortality should be further reduced to promote stock rebuilding. The shared quotas are allocated between the U.S. and Canada based on a formula that considers historical catch (10-percent weighting) and the current resource distribution (90-percent weighting).

    For GB yellowtail flounder, the SSC also recommends an acceptable biological catch (ABC) for the stock, which is typically used to inform the U.S. TMGC's discussions with Canada for the annual shared quota. Although the stock is jointly managed with Canada, and the TMGC recommends annual shared quotas, the United States may not set catch limits that would exceed the SSC's recommendation. The SSC does not recommend ABCs for eastern GB cod and haddock because they are management units of the total GB cod and haddock stocks. The SSC recommends overall ABCs for the total GB cod and haddock stocks. The shared U.S./Canada quota for eastern GB cod and haddock is accounted for in these overall ABCs, and must be consistent with the SSC's recommendation for the total GB stocks.

    2016 U.S./Canada Quotas

    The Transboundary Resources Assessment Committee (TRAC) conducted assessments for the three transboundary stocks in July 2015, and detailed summaries of these assessments can be found at: http://www.nefsc.noaa.gov/saw/trac/. The TMGC met in September 2015 to recommend shared quotas for 2016 based on the updated assessments, and the Council adopted the TMGC's recommendations in Framework 55. The proposed 2016 shared U.S./Canada quotas, and each country's allocation, are listed in Table 3.

    Table 3—Proposed 2016 Fishing Year U.S./Canada Quotas (mt, live weight) and Percent of Quota Allocated to Each Country Quota Eastern GB Cod Eastern GB
  • Haddock
  • GB Yellowtail Flounder
    Total Shared Quota 625 37,000 354 U.S. Quota 138 (22%) 15,170 (41%) 269 (76%) Canada Quota 487 (78%) 21,830 (59%) 85 (24%)

    The Council's proposed 2016 U.S. quota for eastern GB haddock would be a 15-percent reduction compared to 2015. This reduction is due to a reduction in the amount of the shared quota that is allocated to the U.S. The Council's proposed U.S. quotas for eastern GB cod and GB yellowtail flounder would be an 11-percent and 9-percent increase, respectively, compared to 2015, which are a result of an increase in the amounts allocated to the U.S. For a more detailed discussion of the TMGC's 2016 catch advice, see the TMGC's guidance document at: http://www.greateratlantic.fisheries.noaa.gov/sustainable/species/multispecies/index.html. Additionally, the proposed 2016 catch limit for GB yellowtail flounder is discussed in more detail in section “4. Catch Limits for the 2016-2018 Fishing Years.”

    The regulations implementing the U.S./Canada Resource Sharing Understanding require that any overages of the U.S. quota for eastern GB cod, eastern GB haddock, or GB yellowtail flounder be deducted from the U.S. quota in the following fishing year. If catch information for the 2015 fishing year indicates that the U.S. fishery exceeded its quota for any of the shared stocks, we will reduce the respective U.S. quotas for the 2016 fishing year in a future management action, as close to May 1, 2016, as possible. If any fishery that is allocated a portion of the U.S. quota exceeds its allocation and causes an overage of the overall U.S. quota, the overage reduction would only be applied to that fishery's allocation in the following fishing year. This ensures that catch by one component of the fishery does not negatively affect another component of the fishery.

    4. Catch Limits for the 2016-2018 Fishing Years Summary of the Proposed Catch Limits

    The catch limits proposed by the Council in this action can be found in Tables 4 through 11. A brief summary of how these catch limits were developed is provided below. More details on the proposed catch limits for each groundfish stock can be found in Appendix III to the Framework 55 Environmental Assessment (see ADDRESSES for information on how to get this document).

    Through Framework 55, the Council proposes to adopt catch limits for all 20 groundfish stocks for the 2016-2018 fishing years based on the 2015 operational assessment updates. In addition, the Council proposes to update the 2016 catch limits for GB cod and haddock based on the proposed U.S./Canada quotas for the portions of these stocks managed jointly with Canada. Catch limit increases are proposed for 10 stocks; however, for a number of stocks, the catch limits proposed in this action are substantially lower than the catch limits set for the 2015 fishing year (with decreases ranging from 14 to 67 percent). Table 4 details the percent change in the 2016 catch limit compared to the 2015 fishing year.

    Overfishing Limits and Acceptable Biological Catches

    The overfishing limit (OFL) serves as the maximum amount of fish that can be caught in a year without resulting in overfishing. The OFL for each stock is calculated using the estimated stock size and FMSY (i.e., the fishing mortality rate that, if applied over the long term, would result in maximum sustainable yield). The OFL does not account for scientific uncertainty, so the SSC typically recommends an ABC that is lower than the OFL in order to account for this uncertainty. Usually, the greater the amount of scientific uncertainty, the lower the ABC is set compared to the OFL. For GB cod, GB haddock, and GB yellowtail flounder, the total ABC is then reduced by the amount of the Canadian quota (see Table 3 for the Canadian share of these stocks). Additionally, although GB winter flounder and Atlantic halibut are not jointly managed with Canada, there is some Canadian catch of these stocks. Because the total ABC must account for all sources of fishing mortality, expected Canadian catch of GB winter flounder (87 mt) and Atlantic halibut (34 mt) is deducted from the total ABC. The U.S. ABC is the amount available to the U.S. fishery after accounting for Canadian catch. Additional details about the Council's proposed ABCs for SNE/MA yellowtail flounder and witch flounder are provided below.

    Table 4—Proposed Fishing Years 2016-2018 Overfishing Limits and Acceptable Biological Catches [mt, live weight] Stock 2016 OFL U.S. ABC Percent change from 2015 2017 OFL U.S. ABC 2018 OFL U.S. ABC GB Cod 1,665 762 -62% 1,665 1,249 1,665 1,249 GOM Cod 667 500 30% 667 500 667 500 GB Haddock 160,385 56,068 130% 258,691 48,398 358,077 77,898 GOM Haddock 4,717 3,630 150% 5,873 4,534 6,218 4,815 GB Yellowtail Flounder Unknown 269 8% Unknown 354 SNE/MA Yellowtail Flounder Unknown 267 -62% Unknown 267 Unknown 267 CC/GOM Yellowtail Flounder 555 427 -22% 707 427 900 427 American Plaice 1,695 1,297 -16% 1,748 1,336 1,840 1,404 Witch Flounder 521 460 -41% 732 460 954 460 GB Winter Flounder 957 668 -67% 1,056 668 1,459 668 GOM Winter Flounder 1,080 810 59% 1,080 810 1,080 810 SNE/MA Winter Flounder 1,041 780 -53% 1,021 780 1,587 780 Redfish 13,723 10,338 -14% 14,665 11,050 15,260 11,501 White Hake 4,985 3,754 -20% 4,816 3,624 4,733 3,560 Pollock 27,668 21,312 28% 32,004 21,312 34,745 21,312 N. Windowpane Flounder 243 182 21% 243 182 243 182 S. Windowpane Flounder 833 623 14% 833 623 833 623 Ocean Pout 220 165 -30% 220 165 220 165 Atlantic Halibut 210 124 24% 210 124 210 124 Atlantic Wolffish 110 82 17% 110 82 110 82 SNE/MA = Southern New England/Mid-Atlantic; CC = Cape Cod; N = Northern; S = Southern. Note: An empty cell indicates no OFL/ABC is adopted for that year. These catch limits will be set in a future action. Southern New England/Mid-Atlantic Yellowtail Flounder

    The 2015 operational assessment results suggest a dramatic decline in condition of the SNE/MA yellowtail flounder stock compared to the 2012 benchmark assessment (available at: http://www.nefsc.noaa.gov/saw/). Based on the results of the 2012 assessment, we declared the stock rebuilt. However, the results of the 2015 operational assessments suggest that the stock is overfished and that overfishing is occurring. There was also a major retrospective pattern in the 2015 operational assessment. In advance of the operational assessments, guidelines were defined for the assessments, one of which required the application of an adjustment to the terminal year biomass in assessments with major retrospective patterns. However, for SNE/MA yellowtail flounder, the assessment peer review panel did not accept the retrospective adjustment because the adjustment led to failures in the short-term catch projections, and because the model had no other apparent issues. The peer review panel ultimately accepted the assessment without the retrospective adjustment.

    The SSC recognized that the stock is in poor condition, and that a substantial reduction in catch is necessary. The SSC expressed concerned that the assessment for SNE/MA yellowtail flounder did not follow the established guidelines and discussed whether it should not have passed peer review. However, the SSC recognized that the assessment guidelines did not address cases where a retrospective adjustment resulted in model failure. Given this scientific uncertainty, the SSC concluded that the catch projections from the assessment should not be used as the sole basis for catch advice. The SSC ultimately recommended a 3-year constant ABC of 276 mt based on the average of the assessment catch projections and the estimate of 2015 catch, and recommended that the OFL be specified as unknown. In support of this recommendation, it noted that this compromise approach uses the assessment outcome as one bound for ABC advice, but does not adhere too strongly to those outcomes in light of the substantial uncertainties and procedural issues. The Council's proposed ABC is a 62-percent decrease from the 2015 ABC.

    Witch Flounder

    The 2015 operational assessment update for witch flounder determined that the stock is overfished, and overfishing is occurring. The stock status is unchanged from the 2012 assessment update and 2008 benchmark assessment for this stock. Witch flounder is under a 7-year rebuilding plan that has a target end date of 2017. Based on the 2015 assessment update, the 2014 spawning stock biomass is at only at 22 percent of the biomass target, and the stock is not expected to reach the 2017 rebuilding target even in the absence of fishing mortality. An important source of uncertainty for this assessment is a major retrospective pattern, which causes the model to underestimate fishing mortality and overestimate stock biomass and recruitment; the assessment was unable to identify the cause of the retrospective pattern.

    The SSC initially recommended a witch flounder OFL of 513 mt, and an ABC of 394 mt, based on 75 percent of FMSY. At its December 2015 meeting, the Council recommended the SSC's initial witch flounder OFL and ABC recommendations. The 394-mt ABC represented a 50-percent decrease from the 2015 ABC. Industry members raised strong concern for the poor performance of the assessment model and that the reduction in the witch flounder ABC has the potential to severely limit the groundfish fishery in all areas (Southern New England, Gulf of Maine, and Georges Bank). In response to these concerns, the Council requested that the SSC reconsider the witch flounder ABC using additional information about incidental, non-target catch of the stock by groundfish vessels that was not available to the SSC when it made its initial ABC recommendation. The Council noted that it would be willing to accept the temporary risk associated with an ABC that equals the OFL of 513 mt.

    The SSC met on January 20, 2016, to review the biological and economic impacts of increasing the witch flounder ABC above its initial recommendation. The Groundfish Plan Development Team also updated the 2015 catch estimate for witch flounder, which slightly increased the OFL estimate to 521 mt, and the 75 percent of FMSY estimate to 399 mt.

    The SSC acknowledged that an ABC closer to the OFL would be expected to result in higher rates of fishing mortality, higher probabilities of overfishing, and lower resulting biomass in 2017 compared to its initial ABC recommendation. The SSC also cautioned that a history of overly optimistic biomass projections and the risk of overestimating the OFL likely mean higher biological risks with higher ABCs. Biomass projections out to 2018, however, suggest minimal biological difference between the initial ABC recommendation and the OFL because of the short timeframe and relatively small differences in the recommended catch amounts. In each instance, however, biomass is expected to increase from the level estimated in the 2015 assessment.

    An economic model of groundfish fishery suggested no overall increase in revenue with increases in the witch flounder ABC up to the OFL due to the likelihood that low quotas for other key stocks (GOM cod, GB cod, and SNE/MA yellowtail flounder) would be more restrictive. Industry members disagreed with the economic model results. They noted that the results are overly optimistic given current fishery conditions, and that they do not reflect the impact of a reduced witch flounder ABC on individual sectors.

    The SSC noted that it is possible that a lower ABC for witch flounder could show economic benefits at the fishery-wide level, but could still impose economic costs at the vessel or community level. After weighing the uncertainties in the biological and economic information, the SSC ultimately recommended that that the Council set the ABC no higher than 500 mt. The SSC's discussion of its revised witch flounder ABC recommendation is available here: http://s3.amazonaws.com/nefmc.org/1_SSC_response_witchflounder_Jan2016_FINAL.pdf.

    The Council discussed the SSC's revised witch flounder ABC recommendation on January 27, 2016, and recommended a witch flounder ABC of 460 mt, which is the midpoint between the initial ABC recommendation of 399 mt and the OFL of 521 mt, for the 2016-2018 fishing years. This recommendation is 40 mt lower that the SSC's upper limit for the ABC, and was recommended by the Council to reduce the risk of overfishing while providing some flexibility for groundfish vessels to prosecute other healthy groundfish stocks such as haddock, redfish, and pollock.

    An important factor in the revised ABC recommendation for witch flounder ABC is that a benchmark assessment for witch flounder will be conducted in fall of 2016, in time to re-specify witch flounder catch limits for the 2017 fishing year. This new stock assessment information is also expected to provide additional information on the rebuilding potential for witch flounder and potential adjustments to the rebuilding plan. Thus, although the Council proposes a 3-year constant ABC, the catch limits adopted are expected to be in place for only 1 year.

    Annual Catch Limits Development of Annual Catch Limits

    The U.S. ABC for each stock is divided among the various fishery components to account for all sources of fishing mortality. First, an estimate of catch expected from state waters and the “other” sub-component (i.e., non-groundfish fisheries) is deducted from the U.S. ABC. These sub-components are not subject to specific catch controls by the FMP. As a result, the state waters and other sub-components are not allocations, and these components of the fishery are not subject to accountability measures if the catch limits are exceeded. After the state and other sub-components are deducted, the remaining portion of the U.S. ABC is distributed to the fishery components that receive an allocation for the stock. Components of the fishery that receive an allocation are subject to accountability measures if they exceed their respective catch limit during the fishing year.

    Once the U.S. ABC is divided, sub-annual catch limits (sub-ACLs) are set by reducing the amount of the ABC distributed to each component of the fishery to account for management uncertainty. Management uncertainty is the likelihood that management measures will result in a level of catch greater than expected. For each stock and fishery component, management uncertainty is estimated using the following criteria: Enforceability and precision of management measures, adequacy of catch monitoring, latent effort, and catch of groundfish in non-groundfish fisheries. The total ACL is the sum of all of the sub-ACLs and ACL sub-components, and is the catch limit for a particular year after accounting for both scientific and management uncertainty. Landings and discards from all fisheries (commercial and recreational groundfish fisheries, state waters, and non-groundfish fisheries) are counted against the ACL for each stock.

    Sector and Common Pool Allocations

    For stocks allocated to sectors, the commercial groundfish sub-ACL is further divided into the non-sector (common pool) sub-ACL and the sector sub-ACL, based on the total vessel enrollment in sectors and the cumulative Potential Sector Contributions (PSCs) associated with those sectors. The preliminary sector and common pool sub-ACLs proposed in this action are based on fishing year 2016 PSCs and fishing year 2015 sector rosters. Sector specific allocations for each stock can be found in this rule in section “8. Sector Administrative Measures.”

    Common Pool Total Allowable Catches

    The common pool sub-ACL for each stock (except for SNE/MA winter flounder, windowpane flounder, ocean pout, Atlantic wolffish, and Atlantic halibut) is further divided into trimester total allowable catches (TACs). The distribution of the common pool sub-ACLs into trimesters was adopted in Amendment 16 to the FMP and is based on recent landing patterns. Once we project that 90 percent of the trimester TAC is caught for a stock, the trimester TAC area for that stock is closed for the remainder of the trimester to all common pool vessels fishing with gear capable of catching the pertinent stock. Any uncaught portion of the TAC in Trimester 1 or Trimester 2 will be carried forward to the next trimester. Overages of the Trimester 1 or Trimester 2 TAC will be deducted from the Trimester 3 TAC. Any overages of the total common pool sub-ACL will be deducted from the following fishing year's common pool sub-ACL for that stock. Uncaught portions of the Trimester 3 TAC may not be carried over into the following fishing year. Table 8 summarizes the common pool trimester TACs proposed in this action.

    Incidental catch TACs are also specified for certain stocks of concern (i.e., stocks that are overfished or subject to overfishing) for common pool vessels fishing in the special management programs (i.e., special access programs (SAPs) and the Regular B Days-at-Sea (DAS) Program), in order to limit the catch of these stocks under each program. Tables 9 through 11 summarize the proposed Incidental Catch TACs for each stock and the distribution of these TACs to each special management program.

    Closed Area I Hook Gear Haddock Special Access Program

    Overall fishing effort by both common pool and sector vessels in the Closed Area I Hook Gear Haddock SAP is controlled by an overall TAC for GB haddock, which is the target species for this SAP. The maximum amount of GB haddock that may be caught in any fishing year is based on the amount allocated to this SAP for the 2004 fishing year (1,130 mt), and adjusted according to the growth or decline of the western GB haddock biomass in relationship to its size in 2004. Based on this formula, the Council's proposed GB Haddock TAC for this SAP is 2,448 mt for the 2015 fishing year. Once this overall TAC is caught, the Closed Area I Hook Gear Haddock SAP will be closed to all groundfish vessels for the remainder of the fishing year.

    BILLING CODE 3510-22-P EP21MR16.006 EP21MR16.007 EP21MR16.008 EP21MR16.009 BILLING CODE 3510-22-C Table 9—Proposed Common Pool Incidental Catch TACs for the 2016-2018 Fishing Years [mt, live weight] Stock Percentage of common pool
  • sub-ACL
  • 2016 2017 2018
    GB Cod 2 0.26 0.43 0.43 GOM Cod 1 0.08 0.08 0.08 GB Yellowtail Flounder 2 0.08 0.11 0.00 CC/GOM Yellowtail Flounder 1 0.16 0.16 0.16 American Plaice 5 1.13 1.17 1.22 Witch Flounder 5 0.42 0.42 0.42 SNE/MA Winter Flounder 1 0.71 0.71 0.71
    Table 10—Percentage of Incidental Catch TACs Distributed to Each Special Management Program Stock Regular B DAS Program Closed Area I Hook Gear Haddock SAP Eastern US/CA Haddock SAP GB Cod 50 16 34 GOM Cod 100 GB Yellowtail Flounder 50 50 CC/GOM Yellowtail Flounder 100 American Plaice 100 Witch Flounder 100 SNE/MA Winter Flounder 100 White Hake 100 Table 11—Proposed Fishing Years 2016-2018 Incidental Catch TACs for Each Special Management Program [mt, live weight] Stock Regular B DAS Program 2016 2017 2018 Closed Area I Hook Gear Haddock SAP 2016 2017 2018 Eastern U.S./Canada Haddock SAP 2016 2017 2018 GB Cod 0.13 0.22 0.22 0.04 0.07 0.07 0.09 0.15 0.15 GOM Cod 0.08 0.08 0.08 n/a n/a n/a n/a n/a n/a GB Yellowtail Flounder 0.04 0.05 0.00 n/a n/a n/a 0.04 0.05 0.00 CC/GOM Yellowtail Flounder 0.16 0.16 0.16 n/a n/a n/a n/a n/a n/a American Plaice 1.13 1.17 1.22 n/a n/a n/a n/a n/a n/a Witch Flounder 0.42 0.42 0.42 n/a n/a n/a n/a n/a n/a SNE/MA Winter Flounder 0.71 0.71 0.71 n/a n/a n/a n/a n/a n/a 5. Default Catch Limits for the 2019 Fishing Year

    Framework 53 established a mechanism for setting default catch limits in the event a future management action is delayed. If final catch limits have not been implemented by the start of a fishing year on May 1, then default catch limits are set at 35 percent of the previous year's catch limit, effective until July 31 of that fishing year. If this value exceeds the Council's recommendation for the upcoming fishing year, the default catch limits will be reduced to an amount equal to the Council's recommendation for the upcoming fishing year. Because groundfish vessels are not able to fish if final catch limits have not been implemented, this measure was established to prevent disruption to the groundfish fishery. Additional description of the default catch limit mechanism is provided in the preamble to the Framework 53 final rule (80 FR 25110; May 1, 2015). The default catch limits for 2019 are summarized in Table 12.

    This rule announces default catch limits for the 2019 fishing year that will become effective May 1, 2019, until July 31, 2019, unless otherwise replaced by final specifications. The preliminary sector and common pool sub-ACLs in Table 12 are based on existing 2015 sector rosters, and will be adjusted based on rosters from the 2018 fishing year. In addition, prior to the start of the 2019 fishing year, we will evaluate whether any of the default catch limits announced in this rule exceed the Council's recommendations for 2019. If necessary, we will announce adjustments prior to May 1, 2019.

    Table 12—Default Specifications for the 2019 Fishing Year [mt, live weight] Stock U.S. ABC Total ACL Groundfish sub-ACL Preliminary sector
  • sub-ACL
  • Preliminary common pool sub-ACL Midwater trawl fishery
    GB Cod 583 437 465 455 10 GOM Cod 233 175 204 127 4 GB Haddock 125,327 27,264 5,007 4,963 44 51 GOM Haddock 2,176 1,685 1,552 1,107 14 16 SNE/MA Yellowtail Flounder 93 66 52 14 CC/GOM Yellowtail Flounder 315 149 119 113 5 American Plaice 644 491 448 439 9 Witch Flounder 334 161 129 126 3 GB Winter Flounder 511 264 233 231 2 GOM Winter Flounder 378 284 224 212 12 SNE/MA Winter Flounder 555 273 205 180 25 Redfish 5,341 4,025 3,709 3,688 21 White Hake 1,657 1,268 1,168 1,160 8 Pollock 12,161 7,459 6,236 6,196 39 N. Windowpane Flounder 85 64 64 na 64 S. Windowpane Flounder 292 218 218 na 218 Ocean Pout 77 58 58 na 58 Atlantic Halibut 74 55 55 na 55 Atlantic Wolffish 39 29 29 na 29
    6. Groundfish At-Sea Monitoring Program Adjustments

    In this action, the Council proposes adjustments to the groundfish sector at-sea monitoring (ASM) program to make it more cost effective, while still ensuring the likelihood that discards for all groundfish stocks are monitored at a 30-percent coefficient of variation (CV). Due to changes in the 2015 revision to the Standardized Bycatch Reporting Methodology (SBRM) Amendment (80 FR 37182; June 30, 2015) that limit agency discretion in how Congressional funding is used to provide observer coverage, we are no longer able to cover industry's portion of ASM costs. As a result, in early 2015, we announced that sectors would be responsible for covering ASM costs before the end of the 2015 calendar year. We had some funding in existing contracts to cover ASM costs for a portion of the 2015 fishing year, which delayed the operations of the industry-funded ASM program until March 2016. The Council was concerned that the cost burden of the ASM program to the fishing industry would reduce, and possibly eliminate, sector profitability for the remainder of the 2015 fishing year and in future fishing years, especially in light of recent reductions in catch limits for many key groundfish stocks. While the Council has expressed interest in exploring extensive changes to the ASM program in a future action (i.e., adjusting the 30-percent CV requirement), this action only includes minor modifications to the current ASM program. The following section describes the existing industry-funded ASM program, the current methods for deriving annual ASM coverage levels, and the Council's proposed adjustments to the ASM program.

    Description of Existing Industry-Funded ASM Program

    Amendment 16 to the Northeast Multispecies FMP (75 FR 18261; April 9, 2010) established industry-funded at-sea monitoring requirements within the sector management system to facilitate accurate monitoring of sector catch to ensure that sector allocations would not be exceeded. Amendment 16 stated that the level of ASM coverage should be less than 100 percent of sector trips, but meet the 30-percent CV standard specified in the SBRM Amendment. While Amendment 16 established a performance standard for coverage levels, it did not provide guidance on what level the CV standard should be applied—discard estimates at the stock level for all sectors, or for each combination of sector and stock. Framework 48 to the FMP (May 3, 2013; 78 FR 26118) clarified that the CV standard was intended to apply to discard estimates at the overall stock level for all sectors combined.

    Amendment 16 did not detail explicit goals for sector monitoring beyond accurate catch estimation, so the Council further articulated the goals and objectives of the sector monitoring program in Framework 48 in order to assist NMFS and the sectors in designing and evaluating proposals to satisfy monitoring requirements in sector operations plans. The ASM program goals and objectives established in Framework 48 include that groundfish sector monitoring programs improve documentation of catch, determine total catch and effort of regulated species, and achieve a coverage level sufficient to minimize effects of potential monitoring bias to the extent possible, while enhancing fleet viability. Sector monitoring programs should also reduce the cost of monitoring, streamline data management and eliminate redundancy, explore options for cost-sharing, all while recognizing the opportunity costs of insufficient monitoring. Other goals and objectives include incentivizing reducing discards, providing additional data streams for stock assessments, reducing management and/or biological uncertainty, and enhancing the safety of the monitoring program. The complete list of goals and objectives for groundfish monitoring programs is specified in the NE multispecies regulations at § 648.11(l) and in Framework 48.

    For the 2010 and 2011 fishing years, there was no requirement for an industry-funded ASM program, and we were able to fund an ASM program with a target ASM coverage level of 30 percent of all trips. In addition, we provided 8-percent observer coverage through the Northeast Fishery Observer Program (NEFOP), which helps to support SBRM and stock assessments. This resulted in an overall target coverage level of 38 percent, between ASM and NEFOP, for the 2010 and 2011 fishing years. We were able to achieve a 38-percent ASM coverage level for the 2010 and 2011 fishing years because Congressional funding was appropriated to support new catch share programs, which included the implementation of the sector program. Beginning in the 2012 fishing year, we have conducted an annual analysis to predict the total coverage that would likely reach a 30-percent CV for all stocks, and would reliably estimate overall catch by sector vessels. Industry has been required to pay for their costs of ASM coverage since the 2012 fishing year, while we continued to fund NEFOP coverage. However, we were able to fully fund the industry's portion of ASM costs and NEFOP coverage during the 2012 to 2014 fishing years. Table 13 shows annual target coverage levels for the 2010 to 2015 fishing years.

    Table 13—Historic Target Coverage Level for At-Sea Monitoring Fishing year Total coverage level
  • (%)
  • ASM coverage level
  • (%)
  • NEFOP
  • coverage
  • level
  • (%)
  • Funding source
    2010 38 30 8 NMFS. 2011 38 30 8 NMFS. 2012 25 17 8 NMFS. 2013 22 14 8 NMFS. 2014 26 18 8 NMFS. 2015 24 20 4 NMFS and Sectors.
    Historic Determination of ASM Coverage Level

    As described in further detail below, the target coverage level sufficient to reach a 30-percent CV for all stocks in the fishery has been set using the most recent full fishing year of data, based on the most sensitive stock, for at least 80 percent of the discarded pounds of all groundfish stocks.

    First, target coverage levels have been determined based on discard information from the most recent single full fishing year. For example, discard information was available only from the full 2013 fishing year to determine the target coverage level for the 2015 fishing year. In the initial years of the ASM program, multiple years of data were not available, and the most recent full fishing year was determined to be the best available information to predict target coverage levels.

    Second, because it is necessary to estimate discards with a 30-percent CV for each of the 20 groundfish stocks, we conservatively used the individual stock that needed the highest coverage level to reach a 30-percent CV in the most recent full fishing year to predict the annual target coverage level for the upcoming fishing year. For example, in 2013, of the 20 groundfish stocks, SNE/MA yellowtail flounder needed the highest coverage level to reach a 30-percent CV. Thus, the coverage level needed to reach a 30-percent CV for SNE/MA yellowtail flounder in 2013 was used to predict the ASM coverage level for the 2015 fishing year. Since the start of the ASM program in 2010, this approach has resulted in realized annual ASM coverage levels that far exceeded the 30-percent CV requirement for a vast majority of the 20 groundfish stocks.

    Finally, in the first year that the sector program was implemented, we were able to fund ASM coverage at a level that reached this precision standard for 80 percent of the discarded pounds. In each subsequent year, because Congress appropriated funds to pay for industry's ASM costs, we sought to maintain the same statistical quality achieved in the 2010 fishing year by ensuring that at least 80 percent of the discarded pounds of all groundfish stocks were estimated at a 30-percent CV or better. In some years, applying this standard has resulted in higher coverage levels than if the standard were not applied. For example, the application of this standard increased the required ASM coverage levels from 22 percent to 26 percent for the 2014 fishing year, and from 21 percent to 24 percent in the 2015 fishing year.

    Proposed ASM Program Adjustments

    Through this action, the Council proposes to modify the method used to set the target coverage level for the industry-funded ASM program based on 5 years of experience with ASM coverage operations for groundfish sectors and evaluation of the accumulated discard data. The Council proposed these adjustments to make the program more cost effective and smooth the fluctuations in the annual coverage level to provide additional stability for the fishing industry, while still providing coverage levels sufficient to meet the 30-percent CV requirement. The changes proposed in this action would remove ASM coverage for a certain subset of sector trips, use more years of discard information to predict ASM coverage levels, and base the target coverage level on the predictions for stocks that would be at a higher risk for an error in the discard estimate. We are seeking comment on our preliminarily determination that the adjustments the Council proposed to the ASM program are consistent with the Northeast Multispecies FMP and Amendment 16, the Magnuson-Stevens Act and its National Standards, and other applicable law.

    None of the proposed adjustments remove our obligation under Amendment 16 and Framework 48 to ensure sufficient ASM coverage to achieve a 30-percent CV for all stocks. The proposed changes would result in a target coverage level of 14 percent for the 2016 fishing year, including SBRM coverage paid in full by NEFOP. Assuming NEFOP covers 4 percent of trips as it has in recent years, this would result in sectors paying for ASM on approximately 10 percent of their vessels' trips in 2016. Though the proposed changes result in a reduced target ASM coverage level for the 2016 fishing year compared to previous years, there is no guarantee that the changes would result in reduced target coverage levels in future fishing years (i.e., using the same methods proposed here could result in higher coverage in 2017 or 2018 than in recent years).

    We are only able to determine whether the target coverage level reaches the 30-percent CV for all stocks in hindsight, after a fishing year is over. Thus, while a target ASM coverage level is expected to generate a 30-percent CV on discard estimates, there is no guarantee that the required coverage level will be met or result in a 30-percent CV across all stocks due to changes in fishing effort and observed fishing activity that may happen in a given fishing year. However, during the 2010-2014 fishing years, the target coverage level was in excess of the coverage level that would have been necessary to reach at least a 30-percent CV for almost every stock.

    We expect the 2016 target coverage level to achieve results consistent with prior years based on applying the proposed 2016 target coverage level to the 2010-2014 fishing year data. For example, over the five years from 2010-2014, coverage levels of 14 percent would have achieved a 30-percent CV or better for 95 out of the 100 monitored stocks (i.e., 20 stocks x 5 years). For two of the years, (2010 and 2012), all of the stocks would have achieved a 30-percent CV or better. The lowest 30-percent CV achievement overall would have occurred in fishing year 2014, when 17 of the 20 groundfish stocks would have met the 30-percent CV under the 2016 target coverage level. The three stocks that would not have achieved the 30-percent CV included redfish, GOM winter flounder, and SNE/MA yellowtail flounder. Our application of the 2016 target coverage rate to 2010-2014 data, however, showed that stocks not achieving the 30-percent CV typically did not recur. Moreover, the only stock that would not have achieved a 30-percent CV for more than one of the five years (2 times) was SNE/MA yellowtail flounder. However, the proposed 14 percent coverage rate is projected to achieve the necessary 30-percent CV requirement for SNE/MA yellowtail flounder in 2016. Were a higher coverage level necessary to achieve the 30-percent CV requirement for this stock, coverage would be set equal to that level.

    Further, the risk of not achieving the required CV level for these stocks is mitigated by a number of factors. For example, for SNE/MA yellowtail flounder, a more sizeable portion of its ACL has been caught over the last three years (58-70 percent), but less than 10 percent of total catch was made up of discards. Redfish and GOM winter flounder were underutilized over the last three fishing years (less than 50 percent of the ACL caught) and less than 10 percent of their total catch was made up of discards. Thus, even in the unexpected event of not achieving a CV of 30 percent, the risk to these stocks of erring in the discard estimates is very low.

    Table 14 describes the combined impact of the proposed adjustments, applied sequentially in Steps 1 through 4. Table 14 also lists the individual stock that would have needed the highest coverage level to reach a 30-percent CV and, in turn, be used to set the target ASM coverage level. The text that follows discusses the potential effects of each alternative on the target ASM coverage level for 2016 if each alternative were adopted in isolation.

    Table 14—Proposed ASM Program Adjustments and Resulting 2016 ASM Coverage Level Proposed action Total 2016 coverage level
  • (NEFOP + ASM)
  • (%)
  • Driving stock
    No Action 41 Redfish. 1. Remove standard that 80% of discarded pounds be monitored at a 30% CV (administrative) 37 Redfish. 2. Remove ASM coverage requirement for extra-large mesh gillnet trips 37 Redfish. 3. Use multiple years of information to determine ASM coverage levels 17 Redfish. 4. Filter the application of the 30% CV standard based on stock status and utilization 14 SNE/MA yellowtail flounder.
    Removal of Standard That 80 Percent of Discarded Pounds Be Monitored at a 30-Percent CV

    As discussed above, from 2012 to 2015, we set coverage levels to ensure that at least 80 percent of the discarded pounds of all groundfish stocks were estimated at a 30-percent CV or better to maintain the same statistical quality achieved in the 2010 fishing year. We applied this standard during years when Congress appropriated funds to pay for industry costs for the ASM program (2010 and 2011), and in other years when we were able to fund industry's costs for ASM (2012-2014, and part of 2015). In some years, applying this standard resulted in higher coverage levels than if the standard were not applied. However, this additional criterion was not necessary to satisfy the CV requirement of the ASM program or to accurately monitor sector catches, and was not required by the FMP. This action proposes to clarify the Council's intent that target ASM coverage levels for sectors should be set using only realized stock-level CVs, and should not be set using the additional administrative standard of monitoring 80 percent of discard pounds at a 30-percent CV or better. If implemented alone, removing this administrative standard would result in a target 2016 ASM coverage level of 37 percent.

    Removing ASM Coverage Requirement for Extra-Large Mesh Gillnet Trips

    Currently, sector monitoring requirements apply to any trip where groundfish catch counts against a sector's annual catch entitlement (ACE). This Council action proposes to remove the ASM coverage requirement for sector trips using gillnets with extra-large mesh (10 inches (25.4 cm) or greater) in the SNE/MA and Inshore GB Broad Stock Areas. A majority of catch on these trips is of non-groundfish stocks such as skates, monkfish, and dogfish, with minimal or no groundfish catch. As a result, applying the same level of coverage on these trips as targeted groundfish trips does not contribute to improving the overall precision and accuracy of sector discard estimates, and would not be a sufficient use of the limited resources for the ASM program. These trips would still be subject to SBRM coverage through NEFOP, and monitoring coverage levels would be consistent with non-sector trips that target non-groundfish species. If implemented alone, this alternative would result in a target ASM coverage level of 37 percent for the 2016 fishing year.

    This measure is intended to reduce ASM costs to sectors with members that take this type of extra-large mesh gillnet trip. The benefit of reducing ASM coverage for these trips is that resources would be diverted to monitor trips that catch more groundfish, which could improve discard estimates for directed groundfish trips. All other sector trips would still be required to meet the CV standard at a minimum. Changes in stock size or fishing behavior on these trips could change the amount of groundfish bycatch in future fishing years. However, data from 2012 to 2014 shows that groundfish catch has represented less than 5 percent of total catch on a majority of trips, and large changes are not expected. We will continue to evaluate this measure in the future to make sure bycatch levels remain low.

    Because this subset of trips would have a different coverage level than other sector trips in the SNE/MA and Inshore GB Broad Stock Areas, we would create separate discard strata for each stock caught on extra-large gillnet trips in order to ensure the different coverage levels do not bias discard estimates. At this time, no adjustments to the current notification procedures appear necessary to implement this measure. Sector vessels already declare gear type and Broad Stock Area to be fished in the Pre-Trip Notification System, which would allow us to easily identify trips that are exempt from ASM coverage.

    To minimize the possibility that this measure would be used to avoid ASM coverage, only vessels declared into the SNE/MA and/or Inshore GB Broad Stock Areas using extra-large mesh gillnets would be exempt from the ASM coverage requirement. Vessels using extra-large mesh gillnet declaring into the GOM or Offshore GB Broad Stock Areas would not be exempt from the ASM coverage requirement. In addition, a vessel is already prohibited from changing its fishing plan for a trip once a waiver from coverage has been issued.

    Framework 48 implemented a similar measure exempting the subset of sector trips declared into the SNE/MA Broad Stock Area on a monkfish DAS and using extra-large mesh gillnets from the standard ASM coverage level. The Framework 48 measure gave us the authority to specify some lower coverage level for these trips on an annual basis when determining coverage rates for all other sector trips. Since this measure was implemented at the start of the 2013 fishing year, the ASM coverage level for these trips has been set to zero, and these trips have only been subject to NEFOP coverage. The measure proposed in this action would supersede the Framework 48 measure because it would entirely remove the ASM coverage requirement from these trips.

    Using Multiple Years of Data to Determine ASM Total Coverage Levels

    Currently, data from the most recent fishing year are used to predict the target ASM coverage level for the upcoming fishing year. For example, data from the 2013 groundfish fishing year were used to set the target ASM coverage level for the 2015 fishing year. When a single year of data is used to determine the target coverage level, the entire coverage level is driven by the variability in discards in a single stock. This variability is primarily due to inter-annual changes in management measures and fishing activity. Though the target ASM coverage level has ranged from 22 to 26 percent for the last four fishing years, there is the potential that variability could result in large fluctuations of target ASM coverage levels in the future, and result in target coverage levels that are well above the level necessary to meet the 30-percent CV for most stocks. For example, available analyses indicates that, using the status quo methodology, the ASM coverage level would be 41 percent in 2016 compared to the current 2015 rate of 24 percent. Based on a 2016 target coverage level of 41 percent, the coverage level that would have been necessary to meet a 30-percent CV in 2014 would be exceeded by 15-39 percent for 19 of the 20 stocks.

    This Council action proposes using information from the most recent three full fishing years to predict target ASM coverage levels for the upcoming fishing year. For example, data from the 2012 to 2014 fishing years would be used to predict the target ASM coverage level for the 2016 fishing year. Now that five full years of discard data are available, using multiple years of data is expected to smooth inter-annual fluctuations in the level of coverage needed to meet a 30-percent CV that might result from changes to fishing activity and management measures. This measure is intended to make the annual determination of the target ASM coverage level more stable. For example, the percent coverage necessary to reach a 30-percent CV for redfish varied widely for the last 3 years (5 percent in 2012; 10 percent in 2013, and 37 percent in 2014). With this measure, the Council intended to make the annual determination of the target ASM coverage level more stable. Additional stability in predicting the annual target ASM coverage level is beneficial in the context of the industry-funded ASM program. Wide inter-annual fluctuations in the necessary coverage level would make it difficult for groundfish vessels to plan for the costs of monitoring, and for ASM service providers to adjust staffing to meet variable demands for monitoring coverage. The ability for ASM service providers to successfully meet staffing needs, including maintaining the appropriate staff numbers and retaining quality monitors, increases the likelihood of achieving the target coverage level each year. If implemented alone, using multiple years of data would result in a target 2016 ASM coverage level of 17 percent.

    Filtering the Application of the 30-Percent CV Standard

    This Council action proposes to filter the application of the 30-percent CV standard consistent with existing goals for the ASM program. Under this alternative, stocks that meet all of the following criteria would not be used as the predictor for the annual target ASM coverage level for all stocks: (1) Not overfished; (2) Overfishing is not occurring; (3) Not fully utilized (less than 75 percent of sector sub-ACL harvested); and (4) Discards are less than 10 percent of total catch.

    This proposed measure does not eliminate the 30-percent CV standard. Rather, this measure is intended to reflect the Council's policy that target ASM coverage level should be based on stocks that are overfished, are subject to overfishing, or are more fully utilized—stocks for which it is critical to attempt to fully account for past variability in discard estimates. Because stocks that meet all four of the filtering criteria are healthy and not fully utilized, there is a lower risk in erring in the discard estimate. Additionally, using these stocks to predict the target coverage could lead to coverage levels that are not necessary to accurately monitor sector catch.

    For the 2016 fishing year, preliminary analysis shows that, under the status quo methodology for determining the ASM target coverage level, redfish would drive the target coverage level at 37 percent. However, redfish is a healthy stock, and current biomass is well above the biomass threshold. Redfish also meets all of the filtering criteria—the stock is currently not overfished, overfishing is not occurring, only 45 percent of the sector sub-ACL was harvested in 2014, and only 3 percent of total catch was made up of discards. Also, because of the high year-to-year variability in the coverage necessary to achieve the 30-percent CV standard for redfish, we expect the target coverage level of 14 percent to meet the objective.

    If implemented alone, filtering the application of the 30-percent CV standard would eliminate redfish as a driver for the target ASM 2016 coverage level, and GOM winter flounder would drive coverage at 26 percent. If implemented in combination with the other alternatives, SNE/MA yellowtail flounder would drive the coverage level at 14 percent.

    Clarification of Groundfish Monitoring Goals and Objectives

    As described earlier in this section, Framework Adjustment 48 revised and clarified the goals and objectives of the sector monitoring program to include, among other things, improving the documentation of catch, reducing the cost of monitoring, and providing additional data streams for stock assessments. However, Framework 48 did not prioritize these goals and objectives. This Council action clarifies that the primary goal of the sector ASM program is to verify area fished, catch and discards by species, and by gear type, in a manner that would reduce the cost of monitoring. This proposed adjustment to the program goals would not affect the target ASM coverage levels.

    7. Other Framework 55 Measures

    The Council also proposed a number of additional minor adjustments to the FMP as part of this action.

    Formation of Sustainable Harvest Sector II

    The Council proposes to approve the formation of a new sector, Sustainable Harvest Sector II. We must still review the sector operations plan submitted by Sustainable Harvest Sector II to ensure that it contains the required provisions for operation, and that a sufficient analysis is completed under the National Environmental Policy Act (NEPA). We propose to approve Sustainable Harvest Sector II, but intend to make our final determination concerning what sectors are approved and allocated ACE for operations for the 2016 fishing year as part of this rulemaking.

    Modification of the Sector Approval Process

    This Council action proposes to modify to the sector approval process so that new sectors would not have to be approved through an FMP amendment or framework adjustment. Under the current process, new sectors must submit operations plans to the Council no less than 1 year prior to the date that it plans to begin operations (i.e, by May 1, 2016, if the sector intends to operate on May 1, 2017). The Council must decide whether to approve the formation of a new sector through an amendment or framework adjustment. NMFS then reviews the operations plan submitted by the new sector to ensure that it contains the required provisions for operation and sufficient NEPA analysis before making final determinations about the formation of the new sector consistent with the Administrative Procedure Act (APA).

    Under the proposed process, new sectors would submit operations plans directly to NMFS no later than September 1 of the fishing year prior to the fishing year it intends to begin operations. For example, if a new sector wished to operate starting on May 1, 2017, it would need to submit its operations plan to NMFS no later than September 1, 2016. NMFS would notify the Council in writing of its intent to consider approving new sectors. NMFS would present the submitted sector operations plans and any supporting analysis for the new sector at a Groundfish Committee meeting and a Council meeting. After its review, the Council would submit comments to NMFS in writing and indicate whether it endorses the formation of the new sector. NMFS would then make a final determination about new sector consistent with the APA. NMFS would not initiate a rulemaking to make final determinations on the formation of the new sector without the Council's endorsement. This modified process would shorten the timeline for, and increase the flexibility of, the sector approval process, while maintaining opportunities for Council approval and public involvement in the approval process. No other aspects of the sector formation process, including the content of sector operations plan submissions, would change as a result of this proposed measure.

    Modification to the Definition of the Haddock Separator Trawl

    This Council action proposes to modify the definition of the haddock separator trawl to improve the enforceability of this selective trawl gear. In many haddock separator trawls, the separator panel is made with the same mesh color as the net, which makes it difficult for enforcement to identify that this gear is properly configured during vessel inspections. This measure would require the separator panel to be a contrasting color to the portions of the net that it separates. Requiring that the separator panel be a contrasting color to the rest of the net would make the separator panel highly visible, which would improve identification of the panel during boarding, and potentially allow for faster inspections and more effective enforcement. This proposed modification does not affect rope or Ruhle trawls. If we approve this measure, we intend to delay the effective date of the requirement by 6 months to allow affected fishermen time to replace their separator panels with contrasting netting.

    Removal of GOM Cod Recreational Possession Limit

    This Council action proposes to remove the prohibition on recreational possession of GOM cod that was established as part of the protection measures implemented for this stock in Framework Adjustment 53. We currently set recreational management measures in consultation with the Council, and have the authority to modify bag limits, size limits, and seasons. The Framework 53 prohibition on the recreational possession of GOM cod was implemented as a permanent provision in the FMP. In removing the permanent prohibition on recreational possession of GOM cod, this proposed measure returns the authority to set recreational management measures for GOM cod to us. We will implement additional recreational measures to help ensure the recreational fishery does not exceed the GOM cod allocation in a separate rulemaking.

    Distribution of Eastern/Western GB Cod Sector Allocations

    Eastern GB cod is a sub-unit of the total GB cod stock, and the total ABC for GB cod includes the shared U.S./Canada quota for eastern GB cod. A portion of a sector's GB cod allocation may only be caught in the Eastern U.S./Canada Area, and the remaining portion of its total GB cod allocation can be caught only in the Western U.S./Canada Area. This restriction was adopted by Amendment 16 in order to cap the amount of GB cod that a sector could catch in the eastern U.S./Canada Area and help prevent the United States from exceeding its eastern GB cod quota. However, limiting the amount of cod that could be caught in the western U.S./Canada Area could unnecessarily reduce flexibility, and potentially limit fishing in the area, even if a sector has not caught its entire GB cod allocation. Ultimately, this could prevent the fishery from achieving optimum yield for the GB cod stock.

    To address this concern, the Council proposes in this to allow sectors to “convert” their eastern GB cod allocation into western GB cod allocation. This measure would follow a process similar to the one used for processing sector trades, and is similar to a measure already approved for GB haddock in Framework Adjustment 51 (77 FR 22421; April 22, 2014). Sectors could convert eastern GB cod allocation into western GB cod allocation at any time during the fishing year, and up to 2 weeks into the following fishing year to cover any overage during the previous fishing year. A sector's proposed allocation conversion would be referred to, and approved by, NMFS based on general issues, such as whether the sector is complying with reporting or other administrative requirements, including weekly sector reports, or member vessel compliance with Vessel Trip Reporting requirements. Based on these factors, we would notify the sector if the conversion is approved or disapproved. As with GB haddock transfers, we propose to use member vessel compliance with Vessel Trip Reporting requirements as the basis for approving, or disapproving, a reallocation of Eastern GB quota to the Western U.S./Canada Area. This is identical to the process used for reviewing, and approving, quota transfer requests between sectors.

    The responsibility for ensuring that sufficient allocation is available to cover the conversion is the responsibility of the sector. This measure would also extend to state-operated permit banks. Any conversion of eastern GB cod allocation into western GB cod allocation may be made only within a sector, or permit bank, and not between sectors or permit banks. In addition, once a portion of eastern GB cod allocation has been converted to western GB cod allocation, that portion of allocation remains western GB cod for the remainder of the fishing year. Western GB cod allocation may not be converted to eastern GB cod allocation. This proposed measure does not change the requirement that sector vessels may only catch their eastern GB cod allocation in the Eastern U.S./Canada Area, and may only catch the remainder of their GB cod allocation in the Western U.S./Canada Area.

    This measure would provide additional flexibility for sectors to harvest their GB cod allocations. The total catch limit for GB cod includes the U.S. quota for eastern GB cod, so this proposed measure would not jeopardize the total ACL for GB cod, or the U.S. quota for the eastern portion of the stock. A sector would also still be required to stop fishing in the Eastern U.S./Canada Area once its entire eastern GB cod allocation was caught, or in the Western U.S./Canada Area once its western GB cod allocation was caught, or at least until it leased in additional quota. This ensures sufficient accountability for sector catch that will help prevent overages of any GB cod catch limit.

    8. Sector Measures for the 2016 Fishing Year

    This action also proposes measures necessary to implement sector operations plan, including sector regulatory exemptions and annual catch entitlements, for 19 sectors for the 2016 fishing year. In past years, sector operations measures have been covered in a separate, concurrent rulemaking, but are included in this rulemaking for efficiency.

    Sector Operations Plans and Contracts

    A total of 19 sectors would operate in the 2016 fishing year, including:

    • Seventeen sectors that had operations plans that had been previously approved for the 2016 fishing year (see the Final Rule for 2015 and 2016 Sector Operations Plans and 2015 Contracts and Allocation of Northeast Multispecies Annual Catch Entitlements; 80 FR 25143; May 1, 2015);

    • Sustainable Harvest Sector II, discussed in section “7. Other Framework 55 Measures,” which is proposed for formation and approval as part of Framework 55; and

    • Northeast Fishery Sector 12, which has not operated since 2013, but submitted an operations plan for approval for the 2016 fishing year.

    We have made a preliminary determination that the two new proposed sector operations plans and contracts for Sustainable Harvest Sector II and Northeast Fisheries Sector 12 are consistent with the FMP's goals and objectives and meet the applicable sector requirements. We request comments on the proposed operations plans and the accompanying environmental assessment (EA) for these two sectors. Copies of the operations plans and contracts, and the EA, are available at: http://www.regulations.gov and from NMFS (see ADDRESSES).

    Sector Allocations

    Regional Administrator approval is required for sectors to receive ACEs for specific groundfish stocks. The ACE allocations are a portion of a stock's ACL available to the sector based on the collective fishing history of the sector's members. Sectors are allocated ACE for groundfish stocks for which its members have landings history, with the exception of Atlantic halibut, ocean pout, windowpane flounder, and Atlantic wolffish. These stocks are not allocated to sectors.

    Each year, we use sector enrollment information from the previous fishing year to estimate ACE allocations for the upcoming fishing year. Due to the shift to industry-funded ASM, sector enrollment could decrease for the 2016 fishing year if current sector members decide to fish in the common pool to avoid the financial burden of the ASM requirement. Despite some uncertainty in 2016 enrollment levels, we expect that 2015 enrollment still provides the best proxy for fishing year 2016 sector membership, and used 2015 enrollment to calculate the fishing year 2016 projected allocations in this proposed rule.

    All permits enrolled in a sector, and the vessels associated with those permits, have until April 30, 2016, to withdraw from a sector and fish in the common pool for fishing year 2016. In addition to the enrollment delay, all permits that change ownership after December 1, 2015, retain the ability to join a sector through April 30, 2016. We will publish final sector ACEs and common pool sub-ACLs, based upon final rosters, as soon as possible after the start of the 2016 fishing year, and again after the start of the 2017 and 2018 fishing years.

    The sector allocations proposed in this rule are based on the fishing year 2016 specifications described above under “3. Catch Limits for the 2016-2018 Fishing Years.” We calculate the sector's allocation for each stock by summing its members' potential sector contributions (PSC) for a stock, as shown in Table 15. The information presented in Table 15 is the total percentage of each commercial sub-ACL each sector would receive for the 2016 fishing year, based on their 2015 fishing year rosters. Tables 16 and 17 show the allocations each sector would receive for 2016 fishing year, based on their 2015 fishing year rosters. At the start of the fishing year, after sector enrollment is finalized, we provide the final allocations, to the nearest pound, to the individual sectors, and we use those final allocations to monitor sector catch. While the common pool does not receive a specific allocation, the common pool sub-ACLs have been included in each of these tables for comparison.

    We do not assign an individual permit separate PSCs for the Eastern GB cod or Eastern GB haddock; instead, we assign a permit a PSC for the GB cod stock and GB haddock stock. Each sector's GB cod and GB haddock allocations are then divided into an Eastern ACE and a Western ACE, based on each sector's percentage of the GB cod and GB haddock ACLs. For example, if a sector is allocated 4 percent of the GB cod ACL and 6 percent of the GB haddock ACL, the sector is allocated 4 percent of the commercial Eastern U.S./Canada Area GB cod TAC and 6 percent of the commercial Eastern U.S./Canada Area GB haddock TAC as its Eastern GB cod and haddock ACEs. These amounts are then subtracted from the sector's overall GB cod and haddock allocations to determine its Western GB cod and haddock ACEs. Framework 51 implemented a mechanism that allows sectors to “convert” their Eastern GB haddock allocation into Western GB haddock allocation (79 FR 22421; April 22, 2014) and fish that converted ACE in Western GB. This rule proposes a similar measure for GB cod under “6. Other Framework 55 Measures.”

    At the start of the 2016 fishing year, we will withhold 20 percent of each sector's 2016 fishing year allocation until we finalize fishing year 2015 catch information. If the default catch limits for the 2016 fishing year are implemented, groundfish sectors would not be subject to the 20-percent holdback. We will allow sectors to transfer fishing year 2015 ACE for 2 weeks of the fishing year following the completion of year-end catch accounting to reduce or eliminate any 2015 fishing year overages. If necessary, we will reduce any sector's 2016 fishing year allocation to account for a remaining overage in 2015 fishing year.

    BILLING CODE 3510-22-P EP21MR16.010 EP21MR16.011 EP21MR16.012 BILLING CODE 3510-22-C Sector Carryover From the 2015 to 2016 Fishing Year

    Sectors can carry over up to 10 percent of the unused initial allocation for each stock into the next fishing year. However, the maximum available carryover may be reduced if up to 10 percent of the unused sector sub-ACL, plus the total ACL for the upcoming fishing year, exceeds the total ABC. Based on the catch limits proposed in this action, we evaluated whether the total potential catch in the 2016 fishing year would exceed the proposed ABC if sectors carried over the maximum 10 percent of unused allocation from 2015 to 2016 (Table 18). Under this scenario, total potential catch would exceed the 2016 ABC for all stocks except for GOM haddock and GB haddock. As a result, we expect we will need to adjust the maximum amount of unused allocation that a sector can carry forward from 2015 to 2016 (down from 10 percent). It is possible that not all sectors will have 10 percent of unused allocation at the end of the 2015 fishing year. We will make final adjustments to the maximum carryover possible for each sector based on the final 2015 catch for the sectors, each sector's total unused allocation, and proportional to the cumulative PSCs of vessels/permits participating in the sector. We will announce this adjustment as close to May 1, 2016, as possible.

    Based on the catch limits proposed in this rule, the de minimis carryover amount for the 2016 fishing year would be set at the default one percent of the 2016 overall sector sub-ACL. The overall de minimis amount will be applied to each sector based on the cumulative PSCs of the vessel/permits participating in the sector. If the overall ACL for any allocated stock is exceeded for the 2016 fishing year, the allowed carryover harvested by a sector minus its specified de minimis amount, will be counted against its allocation to determine whether an overage, subject to an AM, occurred.

    Table 18—Evaluation of Maximum Carryover Allowed From the 2015 to 2016 Fishing Years [mt, live weight] Stock 2016 U.S. ABC 2016 Total ACL Potential
  • carryover
  • (10% of 2015 sector
  • sub-ACL)
  • Total potential catch
  • (2016 total ACL +
  • potential
  • carryover
  • Difference
  • between total
  • potential catch and ABC
  • GB Cod 762 730 174 904 142 GOM cod 500 473 81 555 55 GB Haddock 56,068 53,309 1,705 55,015 −1,053 GOM Haddock 3,630 3,430 43 3,474 −156 SNE Yellowtail Flounder 267 256 46 302 35 CC/GOM Yellowtail Flounder 427 409 46 455 28 Plaice 1,297 1,235 136 1,370 73 Witch Flounder 460 441 60 500 40 GB Winter Flounder 668 650 336 985 317 GOM Winter Flounder 810 776 68 845 35 SNE/MA Winter Flounder 780 749 106 855 75 Redfish 10,338 9,837 1,052 10,889 551 White Hake 3,816 3,572 425 3,997 181 Note. Carry over of GB yellowtail flounder is not allowed because this stock is jointly managed with Canada.
    Sector Exemptions

    Because sectors elect to receive an allocation under a quota-based system, the FMP grants sector vessels several “universal” exemptions from the FMP's effort controls. These universal exemptions apply to: Trip limits on allocated stocks; the GB Seasonal Closure Area; NE multispecies days-at-sea (DAS) restrictions; the requirement to use a 6.5-inch (16.5-cm) mesh codend when fishing with selective gear on GB; and portions of the GOM Cod Protection Closures. The FMP prohibits sectors from requesting exemptions from permitting restrictions, gear restrictions designed to minimize habitat impacts, and reporting requirements. In addition to the “universal” exemptions approved under Amendment 16 to the Northeast Multispecies FMP, the existing 17 operational sectors and the two that are proposed for approval in this action are granted 19 additional exemptions from the NE multispecies regulations for the 2016 fishing year. These exemptions were previously approved in the sector operations rulemaking for the 2015 and 2016 fishing years. Descriptions of the current range of approved exemptions are included in the preamble to the Final Rule for 2015 and 2016 Sector Operations Plans and 2015 Contracts (80 FR 25143; May 1, 2015) and are not repeated here.

    We received a request for an additional sector exemption intended to complement the proposed Framework 55 measure that would remove the ASM coverage requirement for sector trips using 10-inch (25.4-cm), or larger, mesh gillnet gear and fishing exclusively in the inshore GB and SNE/MA broad stock areas (described in section “6. Groundfish At-Sea Monitoring Program Adjustments”). If this Framework 55 measure is approved, the requested sector exemption would allow vessels on these ASM-exempted sector trips to also target dogfish using 6.5-inch (16.5-cm) mesh within the footprint and season of either the Nantucket Shoals Dogfish Exemption Area (June 1 to October 15), the Eastern Area of the Cape Cod Spiny Dogfish Exemption Area (June 1 to December 31), and the Southern New England Dogfish Gillnet Exemption Area (May 1 to October 31). Sectors seek to participate in this exempted fishery for dogfish while simultaneously being exempted from ASM coverage on extra-large mesh sector trips (i.e., take trips using both greater than 10-inch (25.4-cm) mesh and 6.5-inch (16.5-in) mesh) in an effort to maximize the viability and profitability of their businesses. The Fixed Gear Sector requested this exemption, and we propose to grant this exemption to any sectors that modify their operations plans to include this exemption. In this rule, we propose regulatory text to detail the process for amending sector operations plans during the fishing year in section “10. Regulatory Corrections under Regional Administrator Authority.” While sector trips using this exemption would still be would be exempt from ASM coverage, all groundfish catch on these trips would still be attributed to a sector's ACE.

    9. 2016 Fishing Year Annual Measures Under Regional Administrator Authority

    The FMP gives us authority to implement certain types of management measures for the common pool fishery, the U.S./Canada Management Area, and Special Management Programs on an annual basis, or as needed. This proposed rule includes a description of these management measures that are being considered for the 2016 fishing year in order to provide an opportunity for the public to comment on whether the proposed measures are appropriate. These measures are not part of Framework 55, and were not specifically proposed by the Council. We are proposing them in conjunction with Framework 55 measures in this action for expediency purposes, and because they relate to the catch limits proposed in Framework 55.

    Common Pool Trip Limits

    Tables 19 and 20 provide a summary of the current common pool trip limits for fishing year 2015 and the trip limits proposed for fishing year 2016. The proposed 2016 trip limits were developed after considering changes to the common pool sub-ACLs and sector rosters from 2015 to 2016, proposed trimester TACs for 2016, catch rates of each stock during 2015, and other available information.

    The default cod trip limit is 300 lb (136 kg) for Handgear A vessels and 75 lb (34 kg) for Handgear B vessels. If the GOM or GB cod landing limit for vessels fishing on a groundfish DAS drops below 300 lb (136 kg), then the respective Handgear A cod trip limit must be reduced to the same limit. Similarly, the Handgear B trip limit must be adjusted proportionally (rounded up to the nearest 25 lb (11 kg)) to the DAS limit. This action proposes a GOM cod landing limit of 25 lb (11 kg) per DAS for vessels fishing on a groundfish DAS, which is 97 percent lower than the default limit specified in the regulations for these vessels (800 lb (363 kg) per DAS). As a result, the proposed Handgear A trip limit for GOM cod is reduced to 25 lb (11 kg) per trip, and the proposed Handgear B trip limit for GOM cod is maintained at 25 lb (11 kg) per trip. This action proposes a GB cod landing limit of 500 lb (227 kg) per DAS for vessels fishing on a groundfish DAS, which is 75 percent lower than the 2,000-lb (907-kg) per DAS default limit specified in the regulations for these vessels. As a result, the proposed Handgear A trip limit for GB cod is maintained at 300 lb (136 kg) per trip, and the proposed Handgear B trip limit for GB cod is reduced to 25 lb (11 kg) per trip.

    Vessels with a Small Vessel category permit can possess up to 300 lb (136 kg) of cod, haddock, and yellowtail, combined, per trip. For the 2016 fishing year, we are proposing that the maximum amount of GOM cod and haddock (within the 300-lb (136-kg) trip limit) be set equal to the possession limits applicable to multispecies DAS vessels (see Table 20). This adjustment is necessary to ensure that the trip limit applicable to the Small Vessel category permit is consistent with reductions to the trip limits for other common pool vessels, as described above.

    Table 19—Proposed Common Pool Trip Limits for the 2016 Fishing Year Stock Current 2015 trip limit Proposed 2016 trip limit GB Cod (outside Eastern U.S./Canada Area) 2,000 lb (907 kg)/DAS, up to 20,000 lb (9,072 500 lb (227 kg)/DAS, up to 2,500 lb/trip GB Cod (inside Eastern U.S./Canada Area) 100 lb (45 kg)/DAS, up to 500 lb (227 kg)/trip GOM Cod 50 lb (23 kg)/DAS, up to 200 lb (91 kg)/trip 25 lb (11 kg)/DAS up to 100 lb (45 kg)/trip GB Haddock 25,000 lb (11,340 kg)/trip 100,000 lb (45,359 kg)/trip GOM Haddock 50 lb (23 kg)/DAS, up to 200 lb (91 kg)/trip 100 lb (45 kg)/DAS up to 300 lb (136 kg)/trip GB Yellowtail Flounder 100 lb (45 kg)/trip SNE/MA Yellowtail Flounder 2,000 lb (907 kg)/DAS, up to 6,000 lb (2,722 kg)/trip 250 lb (113 kg)/DAS, up to 500 lb (227 kg)/trip CC/GOM Yellowtail Flounder 1,500 lb (680 kg)/DAS up to 3,000 lb (1,361 kg)/trip 75 lb (34 kg)/DAS up to 1,500 lb (680 kg)/trip American plaice Unlimited 1,000 lb (454 kg)/trip Witch Flounder 1,000 lb (454 kg)/trip 250 lb (113 kg)/trip GB Winter Flounder 1,000 lb (454 kg)/trip 250 lb (113 kg)/trip GOM Winter Flounder 1,000 lb (454 kg)/trip 2,000 lb (907 kg)/trip SNE/MA Winter Flounder 3,000 lb (1,361 kg)/DAS, up to 6,000 lb (2,722 kg)/trip 2,000 lb (907 kg)/DAS, up to 4,000 lb (1,814 kg)/trip Redfish Unlimited White hake 1,500 lb (680 kg)/trip Pollock 10,000 lb (4,536 kg)/trip Unlimited Atlantic Halibut 1 fish/trip Windowpane Flounder Ocean Pout Possession Prohibited Atlantic Wolffish Table 20—Proposed Cod Trips Limits for Handgear A, Handgear B, and Small Vessel Category Permits for the 2016 Fishing Year Permit Current 2015 trip limit Proposed 2016 trip limit Handgear A GOM Cod 50 lb (23 kg)/trip 25 lb (11 kg)/trip. Handgear A GB Cod 300 lb (136 kg)/trip. Handgear B GOM Cod 25 lb (11 kg)/trip. Handgear B GB Cod 75 lb (34 kg)/trip 25 lb (11 kg)/trip. Small Vessel Category 300 lb (136 kg) of cod, haddock, and yellowtail flounder combined. Maximum of 50 lb (23 kg) of GOM cod and 50 lb (23 kg) of GOM haddock within the 300-lb combined trip limit Maximum of 25 lb (11 kg) of GOM cod and 100 lb (45 kg) of GOM haddock within the 300-lb combined trip limit. Closed Area II Yellowtail Flounder/Haddock Special Access Program

    This action proposes to allocate zero trips for common pool vessels to target yellowtail flounder within the Closed Area II Yellowtail Flounder/Haddock SAP for fishing year 2016. Vessels could still fish in this SAP in 2016 to target haddock, but must fish with a haddock separator trawl, a Ruhle trawl, or hook gear. Vessels would not be allowed to fish in this SAP using flounder trawl nets. This SAP is open from August 1, 2016, through January 31, 2017.

    We have the authority to determine the allocation of the total number of trips into the Closed Area II Yellowtail Flounder/Haddock SAP based on several criteria, including the GB yellowtail flounder catch limit and the amount of GB yellowtail flounder caught outside of the SAP. The FMP specifies that no trips should be allocated to the Closed Area II Yellowtail Flounder/Haddock SAP if the available GB yellowtail flounder catch is insufficient to support at least 150 trips with a 15,000-lb (6,804-kg) trip limit (or 2,250,000 lb (1,020,600 kg)). This calculation accounts for the projected catch from the area outside the SAP. Based on the proposed fishing year 2016 GB yellowtail flounder groundfish sub-ACL of 465,175 lb (211,000 kg), there is insufficient GB yellowtail flounder to allocate any trips to the SAP, even if the projected catch from outside the SAP area is zero. Further, given the low GB yellowtail flounder catch limit, catch rates outside of this SAP are more than adequate to fully harvest the 2016 GB yellowtail flounder allocation.

    10. Regulatory Corrections Under Regional Administrator Authority

    The following changes are being proposed to the regulations to clarify regulatory intent, correct references, inadvertent deletions, and other minor errors.

    In § 648.87(b)(4)(i)(G), this proposed rule would revise text to clarify that NMFS will determine the adequate level of insurance that monitoring service providers must provide to cover injury, liability, and accidental death to cover at-sea monitors, and notify potential service providers.

    In § 648.87(c)(2)(i)(A), this proposed rule would correct the inadvertent deletion of the definition of the Fippennies Ledge Area.

    In § 648.87(c), this proposed rule would add regulatory text to detail the process for amending sector operations plans during the fishing year.

    Classification

    Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has made a preliminary determination that this proposed rule is consistent with Framework 55, other provisions of the Magnuson-Stevens Act, and other applicable law. In making the final determination, we will consider the data, views, and comments received during the public comment period.

    This proposed rule has been determined to be not significant for purposes of Executive Order (E.O.) 12866.

    This proposed rule does not contain policies with Federalism or “takings” implications as those terms are defined in E.O. 13132 and E.O. 12630, respectively.

    An Initial Regulatory Flexibility Analysis (IRFA) was prepared for this proposed rule, as required by section 603 of the Regulatory Flexibility Act, 5 U.S.C. 603. The IRFA describes the economic impact that this proposed rule would have on small entities, including small businesses, and also determines ways to minimize these impacts. The IRFA includes this section of the preamble to this rule and analyses contained in Framework 55 and its accompanying EA/RIR/IRFA. A copy of the full analysis is available from the Council (see ADDRESSES). A summary of the IRFA follows.

    Description of the Reason Why Action by the Agency Is Being Considered and Statement of the Objective of, and Legal Basis for, This Proposed Rule

    This action proposes management measures, including annual catch limits, for the multispecies fishery in order to prevent overfishing, rebuild overfished groundfish stocks, and achieve optimum yield in the fishery. A complete description of the action, why it is being considered, and the legal basis for this action are contained in Framework 55, and elsewhere in the preamble to this proposed rule, and are not repeated here.

    Description and Estimate of the Number of Small Entities To Which the Proposed Rule Would Apply

    The Small Business Administration defines a small business as one that is:

    • Independently owned and operated;

    • Not dominant in its field of operation;

    • Has annual receipts that do not exceed—

    ○ $20.5 million in the case of commercial finfish harvesting entities (NAIC 1 114111)

    1 The North American Industry Classification System (NAICS) is the standard used by Federal statistical agencies in classifying business establishments for the purpose of collecting, analyzing, and publishing statistical data related to the U.S. business economy.

    ○ $5.5 million in the case of commercial shellfish harvesting entities (NAIC 114112)

    ○ $7.5 million in the case of for-hire fishing entities (NAIC 114119); or

    • Has fewer than—

    ○ 750 employees in the case of fish processors

    ○ 100 employees in the case of fish dealers.

    This proposed rule impacts commercial and recreational fish harvesting entities engaged in the groundfish fishery, the small-mesh multispecies and squid fisheries, the midwater trawl herring fishery, and the scallop fishery. Individually-permitted vessels may hold permits for several fisheries, harvesting species of fish that are regulated by several different FMPs, even beyond those impacted by the proposed action. Furthermore, multiple-permitted vessels and/or permits may be owned by entities affiliated by stock ownership, common management, identity of interest, contractual relationships, or economic dependency. For the purposes of the Regulatory Flexibility Act analysis, the ownership entities, not the individual vessels, are considered to be the regulated entities.

    Ownership entities are defined as those entities with common ownership personnel as listed on the permit application. Only permits with identical ownership personnel are categorized as an ownership entity. For example, if five permits have the same seven persons listed as co-owners on their permit application, those seven persons would form one ownership entity that holds those five permits. If two of those seven owners also co-own additional vessels, these two persons would be considered a separate ownership entity.

    On June 1 of each year, NMFS identifies ownership entities based on a list of all permits for the most recent complete calendar year. The current ownership dataset used for this analysis was created on June 1, 2015, based on calendar year 2014 and contains average gross sales associated with those permits for calendar years 2012 through 2014.

    In addition to classifying a business (ownership entity) as small or large, a business can also be classified by its primary source of revenue. A business is defined as being primarily engaged in fishing for finfish if it obtains greater than 50 percent of its gross sales from sales of finfish. Similarly, a business is defined as being primarily engaged in fishing for shellfish if it obtains greater than 50 percent of its gross sales from sales of shellfish.

    A description of the specific permits that are likely to be impacted by this action is provided below, along with a discussion of the impacted businesses, which can include multiple vessels and/or permit types.

    Regulated Commercial Fish Harvesting Entities

    Table 18 describes the total number of commercial business entities potentially regulated by the proposed action. As of June 1, 2015, there were 1,359 commercial business entities potentially regulated by the proposed action. These entities participate in, or are permitted for, the groundfish, small-mesh multispecies, herring midwater trawl, and scallop fisheries. For the groundfish fishery, the proposed action directly regulates potentially affected entities through catch limits and other management measures designed to achieve the goals and objectives of the FMP. For the non-groundfish fisheries, the proposed action includes allocations for groundfish stocks caught as bycatch in these fisheries. For each of these fisheries, there are accountability measures that are triggered if their respective allocations are exceeded. As a result, the likelihood of triggering an accountability measure is a function of changes to the ACLs each year.

    Table 18—Commercial Fish Harvesting Entities Regulated by the Proposed Action Type Total number Classified as small businesses Primarily finfish 385 385 Primarily shellfish 480 462 Primarily for hire 297 297 No Revenue 197 197 Total 1,359 1,341 Limited Access Groundfish Fishery

    The proposed action will directly impact entities engaged in the limited access groundfish fishery. The limited access groundfish fishery consists of those enrolled in the sector program and those in the common pool. Both sectors and the common pool are subject to catch limits, and accountability measures that prevent fishing in a respective stock area when the entire catch limit has been caught. Additionally, common pool vessels are subject to DAS restrictions and trip limits. All permit holders are eligible to enroll in the sector program; however, many vessels remain in the common pool because they have low catch histories of groundfish stocks, which translate into low PSCs. Low PSCs limit a vessel's viability in the sector program. In general, businesses enrolled in the sector program rely more heavily on sales of groundfish species than vessels enrolled in the common pool.

    As of June 1, 2015 (just after the start of the 2015 fishing year), there were 1,068 individual limited access multispecies permits. Of these, 627 were enrolled in the sector program, and 441 were in the common pool. For fishing year 2014, which is the most recent complete fishing year, 717 of these limited access permits had landings of any species, and 273 of these permits had landings of groundfish species.

    Of the 1,068 individual limited access multispecies permits potentially impacted by this action, there are 661 distinct ownership entities. Of these, 649 are categorized as small entities, and 12 are categorized as large entities. However, these totals may mask some diversity among the entities. Many, if not most, of these ownership entities maintain diversified harvest portfolios, obtaining gross sales from many fisheries and not dependent on any one. However, not all are equally diversified. This action is most likely to affect those entities that depend most heavily on sales from harvesting groundfish species. There are 61 entities that are groundfish-dependent (obtain more than 50 percent of gross sales from groundfish species), all of which are small, and all but one of which are finfish commercial harvesting businesses.

    Limited Access Scallop Fisheries

    The limited access scallop fisheries include Limited Access (LA) scallop permits and Limited Access General Category (LGC) scallop permits. LA scallop businesses are subject to a mixture of DAS restrictions and dedicated area trip restrictions. LGC scallop businesses are able to acquire and trade LGC scallop quota, and there is an annual cap on quota/landings. The scallop fishery receives an allocation for GB and SNE/MA yellowtail flounder and southern windowpane flounder. If these allocations are exceeded, accountability measures are implemented in a subsequent fishing year. These accountability measures close certain areas of high groundfish bycatch to scallop fishery, and the length of the closure depends on the magnitude of the overage.

    Of the total commercial business entities potentially affected by this action (1,359), there are 169 scallop fishing entities. The majority of these entities are defined as shellfish businesses (166). However, three of these entities are defined as finfish businesses, all of which are small. Of the total scallop fishing entities, 154 entities are classified as small entities.

    Midwater Trawl Fishery

    There are five categories of permits for the herring fishery. Three of these permit categories are limited access, and vary based on the allowable herring possession limits and areas fished. The remaining two permit categories are open access. Although there is a large number of open access permits issued each year, these categories are subject to fairly low possession limits for herring, account for a very small amount of the herring landings, and derive relatively little revenue from the fishery. Only the midwater trawl herring fishery receives an allocation of GOM and GB haddock. Once the entire allocation for either stock has been caught, the directed herring fishery for midwater trawl vessels is closed in the respective area for the remainder of the fishing year. Additionally, if the midwater trawl fishery exceeds its allocation, the overage is deducted from its allocation in the following fishing year.

    Of the total commercial business entities potentially regulated by this action (1,359), there are 63 herring fishing entities. Of these, 39 entities are defined as finfish businesses, all of which are small. There are 24 entities that are defined as shellfish businesses, and 18 of these are considered small. For the purposes of this analysis, squid is classified as shellfish. Thus, because there is some overlap with the herring and squid fisheries, it is likely that these shellfish entities derive most of their revenues from the squid fishery.

    Small-Mesh Fisheries

    The small-mesh exempted fisheries allow vessels to harvest species in designated areas using mesh sizes smaller than the minimum mesh size required by the Northeast Multispecies FMP. To participate in the small-mesh multispecies (whiting) fishery, vessels must hold either a limited access multispecies permit or an open access multispecies permit. Limited access multispecies permit holders can only target whiting when not fishing under a DAS or a sector trip, and while declared out of the fishery. A description of limited access multispecies permits was provided above. Many of these vessels target both whiting and longfin squid on small-mesh trips, and, therefore, most of them also have open access or limited access Squid, Mackerel, and Butterfish (SMB) permits. As a result, SMB permits were not handled separately in this analysis.

    The small-mesh fisheries receive an allocation of GB yellowtail flounder. If this allocation is exceeded, an accountability measure is triggered for a subsequent fishing year. The accountability measure requires small-mesh vessels to use selective trawl gear when fishing on GB. This gear restriction is only implemented for 1 year as a result of an overage, and is removed as long as additional overages do not occur.

    Of the total commercial harvesting entities potentially affected by this action, there are 1,007 small-mesh entities. However, this is not necessarily informative because not all of these entities are active in the whiting fishery. Based on the most recent information, 223 of these entities are considered active, with at least 1 lb of whiting landed. Of these entities, 167 are defined as finfish businesses, all of which are small. There are 56 entities that are defined as shellfish businesses, and 54 of these are considered small. Because there is overlap with the whiting and squid fisheries, it is likely that these shellfish entities derive most of their revenues from the squid fishery.

    Regulated Recreational Party/Charter Fishing Entities

    The charter/party permit is an open access groundfish permit that can be requested at any time, with the limitation that a vessel cannot have a limited access groundfish permit and an open access party/charter permit concurrently. There are no qualification criteria for this permit. Charter/party permits are subject to recreational management measures, including minimum fish sizes, possession restrictions, and seasonal closures.

    During calendar year 2015, 425 party/charter permits were issued. Of these, 271 party/charter permit holders reported catching and retaining any groundfish species on at least one for-hire trip. A 2013 report indicated that, in the northeast U.S., the mean gross sales was approximately $27,650 for a charter business and $13,500 for a party boat. Based on the available information, no business approached the $7.5 million large business threshold. Therefore, the 425 potentially regulated party/charter entities are all considered small businesses.

    Description of the Projected Reporting, Recordkeeping, and Other Compliance Requirements of This Proposed Rule

    The proposed action contains a collection-of-information requirement subject to review and approval by the Office of Management and Budget (OMB) under the Paperwork Reduction Act (PRA). This requirement will be submitted to OMB for approval under OMB Control Number 0648-0605: Northeast Multispecies Amendment 16 Data Collection. The proposed action does not duplicate, overlap, or conflict with any other Federal rules.

    This action proposes to adjust the ACE transfer request requirement implemented through Amendment 16. This rule would add a new entry field to the Annual Catch Entitlement (ACE) transfer request form to allow a sector to indicate how many pounds of eastern GB cod ACE it intends to re-allocate to the Western U.S./Canada Area. This change is necessary to allow a sector to apply for a re-allocation of eastern GB ACE in order to increase fishing opportunities in the Western U.S./Canada Area. Currently, all sectors use the ACE transfer request form to initiate ACE transfers with other sectors, or to re-allocation eastern GB haddock ACE to the Western U.S./Canada Area, via an online or paper form to the Regional Administrator. The proposed change adds a single field to this form, and would not affect the number of entities required to comply with this requirement. Therefore, the proposed change would not be expected to increase the time or cost burden associated with the ACE transfer request requirement. Public reporting burden for this requirement includes the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.

    Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB Control Number.

    Federal Rules Which May Duplication, Overlap, or Conflict With This Proposed Rule

    The proposed regulations do not create overlapping regulations with any state regulations or other federal laws.

    Description of Significant Alternatives to the Proposed Action Which Accomplish the Stated Objectives of Applicable Statutes and Which Minimize Any Significant Economic Impact on Small Entities

    The economic impacts of each proposed measure is discussed in more detail in sections 7.4 and 8.11 of the Framework 55 Environmental Assessment and are not repeated here. The only alternatives to the proposed action that accomplish the stated objectives and minimize significant economic impacts on small entities are related to the witch flounder ABCs under the annual catch limits and the alternative to modify the definition of the haddock separator trawl.

    Witch Flounder ABCs and Groundfish Annual Catch Limits

    The proposed action would set catch limits for all 20 groundfish stocks. For 19 of the stocks, there is only a single catch limit alternative to the No Action alternative, described in Table 5 in the preamble. For witch flounder, there are three non-selected alternatives to the proposed ABC of 460 mt, namely 399 mt, 500 mt, and the No Action alternative. In each of these witch flounder alternatives, except for the No Action alternative, all other groundfish stock allocations would remain the same as those described in Table 5. It is important to note that all of the non-selected action alternatives assume a 14-percent target ASM coverage level for 2016. The No Action alternative assumes a 41-percent target ASM coverage level for 2016.

    For the commercial groundfish fishery, the proposed catch limits (460 mt witch flounder ABC) are expected to result in a 10-percent decrease in gross revenues on groundfish trips, or $8 million, compared to predicted gross revenues for the 2015 fishing year. The impacts of the proposed catch limits would not be uniformly distributed across vessels size classes and ports. Vessels in the 30-50 ft (9-15 m) category are expected to see gross revenue increases of 2 percent. Vessels in the 50-75 ft (15-23 m) size class are expected to see revenue increases of 19 percent. The largest vessels (75 ft (23 m) and greater) are predicted to incur the largest decreases in gross revenues revenue decreases of 30 percent relative to 2015, due primarily to reductions in several GB and SNE/MA stocks (e.g., GB cod, GB winter flounder, SNE/MA yellowtail flounder, SNE/MA winter flounder).

    Southern New England ports are expected to be negatively impacted, with New Jersey, New York, and Rhode Island predicted to incur revenue losses of 100 percent, 80 percent, and 62 percent, respectively, relative to 2015. These large revenue losses are also due to reductions in GB and SNE/MA stocks. Maine and Massachusetts are also predicted to incur revenue losses of 16 percent and 6 percent, respectively, as a result of the proposed catch limits, while New Hampshire is expected to have small increases in gross revenues of up to 8 percent. For major home ports, New Bedford is predicted to see a 47-percent decline in revenues relative to 2015, and Point Judith expected to see a 58-percent decline. Boston and Gloucester, meanwhile, are predicted to have revenue increases of 31 and 29 percent, respectively, compared to 2015.

    Two of the three non-selected alternatives would have set all groundfish allocations at the levels described in Table 5, with the exception of the witch flounder allocation. In the alternative where the witch flounder ABC is set at 399 mt, gross revenues are predicted to be the same as for the proposed alternative (460-mt witch flounder ABC), namely a 10-percent decrease in gross revenues on groundfish trips, or $8 million, compared to predicted gross revenues for the 2015 fishing year. The 399-mt alternative is also expected to provide the same changes in gross revenue by vessels size class. In the alternative where the witch flounder ABC is set at 500 mt, gross revenues are predicted to be slightly lower than the proposed alternative, namely an 11-percent decrease in gross revenues on groundfish trips, or $9 million, compared to predicted gross revenues for fishing year 2015. Vessels in the 30-50 ft (9-15 m) category are expected to see gross revenue increases of 4 percent. Vessels in the 50-75 ft (15-23 m) size class are expected to see revenue increases of 15 percent. The largest vessels (75 ft (23 m) and greater) are predicted to incur the largest decreases in gross revenues revenue decreases of 28 percent relative to 2015. State and port-level impacts are also similar across the action alternatives.

    Under the No Action option, groundfish vessels would only have 3 months (May, June, and July) to operate in the 2016 fishing year before the default specifications expire. Once the default specifications expire, there would be no ACL for a number of the groundfish stocks, and the fishery would be closed for the remainder of the fishing year. This would result in greater negative economic impacts for vessels compared to the proposed action due to lost revenues as a result of being unable to fish. The proposed action is predicted to result in approximately $69 million in gross revenues from groundfish trips. Roughly 92 percent of this revenue would be lost if no action was taken to specify catch limits. Further, if no action was taken, the Magnuson-Stevens Act requirements to achieve optimum yield and consider the needs of fishing communities would be violated.

    Each of the 2016 ACL alternatives show a decrease in gross revenue when compared to the 2015 fishing year. When compared against each other, the economic analysis of the various witch flounder ABC alternatives did not show any gain in gross revenue at the fishery level, or any wide difference in vessel and port-level gross revenue, as the witch flounder ABC increased. The economic analysis consistently showed other stocks (GB cod, GOM cod, and SNE/MA yellowtail flounder) would be more constraining than witch flounder, which may partially explain the lack of predicted revenue increases with higher witch flounder ABCs. In addition, there are other assumptions in the economic analysis that may mask sector and vessel level impacts that could result from alternatives with lower witch flounder ABCs. Ultimately, the proposed alternative (460-mt witch flounder ABC) is expected to mitigate potential economic impacts to fishing communities compared to both the No Action alternative and the 399-mt witch flounder ABC alternative, while reducing the biological concerns of an increased risk of overfishing compared to the 500-mt witch flounder ABC alternative.

    The proposed catch limits are based on the latest stock assessment information, which is considered the best scientific information available, and the applicable requirements in the FMP and the Magnuson-Stevens Act. With the exception of witch flounder, the only other possible alternatives to the catch limits proposed in this action that would mitigate negative impacts would be higher catch limits. Alternative, higher catch limits, however, are not permissible under the law because they would not be consistent with the goals and objectives of the FMP, or the Magnuson-Stevens Act, particularly the requirement to prevent overfishing. The Magnuson-Stevens Act, and case law, prevent implementation of measures that conflict with conservation requirements, even if it means negative impacts are not mitigated. The catch limits proposed in this action are the highest allowed given the best scientific information available, the SSC's recommendations, and requirements to end overfishing and rebuild fish stocks. The only other catch limits that would be legal would be lower than those proposed in this action, which would not mitigate the economic impacts of the proposed catch limits.

    Modification of the Definition of the Haddock Separator Trawl

    The proposed action would modify the current definition of the haddock separator trawl to require that the separator panel contrasts in color to the portions of the net that it separates. An estimated 46 unique vessels had at least one trip that used a haddock separator trawl from 2013-2015. The costs for labor and installation of a new separator panel are estimated to range from $560 to $1,400 per panel. The No Action alternative would not modify the current definition of the haddock separator trawl. The proposed action is expected to expedite Coast Guard vessel inspections when compared to the No Action alternative, which could improve enforceability of this gear type and reduce delays in fishing operations while inspections occur.

    List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Recordkeeping and reporting requirements.

    Dated: March 11, 2016. Samuel D. Rauch III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

    For the reasons stated 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 § 648.14, revise paragraph (k)(16)(iii)(B) to read as follows:
    § 648.14 Prohibitions.

    (k) * * *

    (16) * * *

    (iii) * * *

    (B) Fail to comply with the requirements specified in § 648.81(f)(5)(v) when fishing in the areas described in § 648.81(d)(1), (e)(1), and (f)(4) during the time periods specified.

    3. In § 648.85, revise paragraph (a)(3)(iii)(A) to read as follows:
    § 648.85 Special management programs.

    (a) * * *

    (3) * * *

    (iii) * * *

    (A) Haddock Separator Trawl. A haddock separator trawl is defined as a groundfish trawl modified to a vertically-oriented trouser trawl configuration, with two extensions arranged one over the other, where a codend shall be attached only to the upper extension, and the bottom extension shall be left open and have no codend attached. A horizontal large-mesh separating panel constructed with a minimum of 6.0-inch (15.2-cm) diamond mesh must be installed between the selvedges joining the upper and lower panels, as described in paragraphs (a)(3)(iii)(A) and (B) of this section, extending forward from the front of the trouser junction to the aft edge of the first belly behind the fishing circle. The horizontal large-mesh separating panel must be constructed with mesh of a contrasting color to the upper and bottom extensions of the net that it separates.

    (1) Two-seam bottom trawl nets—For two seam nets, the separator panel will be constructed such that the width of the forward edge of the panel is 80-85 percent of the width of the after edge of the first belly of the net where the panel is attached. For example, if the belly is 200 meshes wide (from selvedge to selvedge), the separator panel must be no wider than 160-170 meshes wide.

    (2) Four-seam bottom trawl nets—For four seam nets, the separator panel will be constructed such that the width of the forward edge of the panel is 90-95 percent of the width of the after edge of the first belly of the net where the panel is attached. For example, if the belly is 200 meshes wide (from selvedge to selvedge), the separator panel must be no wider than 180-190 meshes wide. The separator panel will be attached to both of the side panels of the net along the midpoint of the side panels. For example, if the side panel is 100 meshes tall, the separator panel must be attached at the 50th mesh.

    3. In § 648.87: A. Revise paragraphs (a)(1) and (2), (b)(1)(i)(B)(2), (b)(1)(v)(B) introductory text, and (b)(1)(v)(B)(1)(i); B. Add paragraph (b)(1)(v)(B)(1)(ii); C. Revise paragraph (b)(4)(i)(G); D. Add paragraphs (c)(2)(i)(A), reserved paragraph (c)(2)(i)(B), and (c)(4); and E. Revise paragraphs, (d), and (e)(3)(iv).

    The revisions and additions read as follows:

    § 648.87 Sector allocation.

    (a) Procedure for approving/implementing a sector allocation proposal. (1) Any person may submit a sector allocation proposal for a group of limited access NE multispecies vessels to NMFS. The sector allocation proposal must be submitted to the Council and NMFS in writing by the deadline for submitting an operations plan and preliminary sector contract that is specified in paragraph (b)(2) of this section. The proposal must include a cover letter requesting the formation of the new sector, a complete sector operations plan and preliminary sector contract, prepared as described in in paragraphs (b)(2) and (3) of this section, and appropriate analysis that assesses the impact of the proposed sector, in compliance with the National Environmental Policy Act.

    (2) Upon receipt of a proposal to form a new sector allocation, and following the deadline for each sector to submit an operations plan, as described in paragraph (b)(2) of this section, NMFS will notify the Council in writing of its intent to consider a new sector allocation for approval. The Council will review the proposal(s) and associated NEPA analyses at a Groundfish Committee and Council meeting, and provide its recommendation on the proposed sector allocation to NMFS in writing. NMFS will make final determinations regarding the approval of the new sectors based on review of the proposed operations plans, associated NEPA analyses, and the Council's recommendations, and in a manner consistent with the Administrative Procedure Act. NMFS will only approve a new sector that has received the Council's endorsement.

    (b) * * *

    (1) * * *

    (i) * * *

    (B) * * *

    (2) Re-allocation of haddock or cod ACE. A sector may re-allocate all, or a portion, of a its haddock or cod ACE specified to the Eastern U.S./Canada Area, pursuant to paragraph (b)(1)(i)(B)(1) of this section, to the Western U.S./Canada Area at any time during the fishing year, and up to 2 weeks into the following fishing year (i.e., through May 14), unless otherwise instructed by NMFS, to cover any overages during the previous fishing year. Re-allocation of any ACE only becomes effective upon approval by NMFS, as specified in paragraphs (b)(1)(i)(B)(2)(i) through (iii) of this section. Re-allocation of haddock or cod ACE may only be made within a sector, and not between sectors. For example, if 100 mt of a sector's GB haddock ACE is specified to the Eastern U.S./Canada Area, the sector could re-allocate up to 100 mt of that ACE to the Western U.S./Canada Area.

    (i) Application to re-allocate ACE. GB haddock or GB cod ACE specified to the Eastern U.S./Canada Area may be re-allocated to the Western U.S./Canada Area through written request to the Regional Administrator. This request must include the name of the sector, the amount of ACE to be re-allocated, and the fishing year in which the ACE re-allocation applies, as instructed by the Regional Administrator.

    (ii) Approval of request to re-allocate ACE. NMFS shall approve or disapprove a request to re-allocate GB haddock or GB cod ACE provided the sector, and its participating vessels, are in compliance with the reporting requirements specified in this part. The Regional Administrator shall inform the sector in writing, within 2 weeks of the receipt of the sector's request, whether the request to re-allocate ACE has been approved.

    (iii) Duration of ACE re-allocation. GB haddock or GB cod ACE that has been re-allocated to the Western U.S./Canada Area pursuant to this paragraph (b)(1)(i)(B)(2) is only valid for the fishing year in which the re-allocation is approved, with the exception of any requests that are submitted up to 2 weeks into the subsequent fishing year to address any potential ACE overages from the previous fishing year, as provided in paragraph (b)(1)(iii) of this section, unless otherwise instructed by NMFS.

    (v) * * *

    (B) Independent third-party monitoring program. A sector must develop and implement an at-sea or electronic monitoring program that is satisfactory to, and approved by, NMFS for monitoring catch and discards and utilization of sector ACE, as specified in this paragraph (b)(1)(v)(B). The primary goal of the at-sea/electronic monitoring program is to verify area fished, as well as catch and discards by species and gear type, in the most cost-effective means practicable. All other goals and objectives of groundfish monitoring programs at § 648.11(l) are considered equally-weighted secondary goals. The details of any at-sea or electronic monitoring program must be specified in the sector's operations plan, pursuant to paragraph (b)(2)(xi) of this section, and must meet the operational standards specified in paragraph (b)(5) of this section. Electronic monitoring may be used in place of actual observers if the technology is deemed sufficient by NMFS for a specific trip type based on gear type and area fished, in a manner consistent with the Administrative Procedure Act. The level of coverage for trips by sector vessels is specified in paragraph (b)(1)(v)(B)(1) of this section. The at-sea/electronic monitoring program shall be reviewed and approved by the Regional Administrator as part of a sector's operations plans in a manner consistent with the Administrative Procedure Act. A service provider providing at-sea or electronic monitoring services pursuant to this paragraph (b)(1)(v)(B) must meet the service provider standards specified in paragraph (b)(4) of this section, and be approved by NMFS in a manner consistent with the Administrative Procedure Act.

    (1) * * *

    (i) At-sea/electronic monitoring. Coverage levels must be sufficient to at least meet the coefficient of variation specified in the Standardized Bycatch Reporting Methodology at the overall stock level for each stock of regulated species and ocean pout, and to monitor sector operations, to the extent practicable, in order to reliably estimate overall catch by sector vessels. In making its determination, NMFS shall take into account the primary goal of the at-sea/electronic monitoring program to verify area fished, as well as catch and discards by species and gear type, in the most cost-effective means practicable, the equally-weighted secondary goals and objectives of groundfish monitoring programs detailed at § 648.11(l), the National Standards and requirements of the Magnuson-Stevens Act, and any other relevant factors. NMFS will determine the total target coverage level (i.e., combined NEFOP coverage and at-sea/electronic monitoring coverage) for the upcoming fishing year using the criteria in this paragraph. Annual coverage levels will be based on the most recent 3-year average of the total required coverage level necessary to reach the required coefficient of variation for each stock. For example, if data from the 2012 through 2014 fishing years are the most recent three complete fishing years available for the fishing year 2016 projection, NMFS will use data from these three years to determine 2016 target coverage levels. For each stock, the coverage level needed to achieve the required coefficient of variation would be calculated first for each of the 3 years and then averaged (e.g., (percent coverage necessary to meet the required coefficient of variation in year 1 + year 2 + year 3)/3). The coverage level that will apply is the maximum stock-specific rate after considering the following criteria. For a given fishing year, stocks that are not overfished, with overfishing not occurring according to the most recent available stock assessment, and that in the previous fishing year have less than 75 percent of the sector sub-ACL harvested and less than 10 percent of catch comprised of discards, will not be used to predict the annual target coverage level. A stock must meet all of these criteria to be eliminated as a predictor for the annual target coverage level for a given year.

    (ii) A sector vessel that declares its intent to exclusively fish using gillnets with a mesh size of 10-inch (25.4-cm) or greater in either the Inshore GB Stock Area, as defined at § 648.10(k)(3)(ii), and/or the SNE Broad Stock Area, as defined at § 648.10(k)(3)(iv), is not subject to the coverage rate specified in this paragraph (b)(1)(v)(B)(1) of this section provided that the trip is limited to the Inshore GB and/or SNE Broad Stock Areas and that the vessel only uses gillnets with a mesh size of 10-inches (25.4-cm) or greater. When on such a trip, other gear may be on board provided that it is stowed and not available for immediate use as defined in § 648.2. A sector trip fishing with 10-inch (25.4-cm) mesh or larger gillnets will still be subject to the annual coverage rate if the trip declares its intent to fish in any part of the trip in the GOM Stock area, as defined at § 648.10(k)(3)(i), or the Offshore GB Stock Area, as defined at § 648.10(k)(3)(iii).

    (4) * * *

    (i) * * *

    (G) Evidence of adequate insurance (copies of which shall be provided to the vessel owner, operator, or vessel manager, when requested) to cover injury, liability, and accidental death to cover at-sea monitors (including during training); vessel owner; and service provider. NMFS will determine the adequate level of insurance and notify potential service providers;

    (c) * * *

    (2) * * *

    (i) * * *

    (A) Fippennies Ledge Area. The Fippennies Ledge Area is bounded by the following coordinates, connected by straight lines in the order listed:

    Fippennies Ledge Area Point N. Latitude W. Longitude 1 42°50.0′ 69°17.0′ 2 42°44.0′ 69°14.0′ 3 42°44.0′ 69°18.0′ 4 42°50.0′ 69°21.0′ 1 42°50.0′ 69°17.0′

    (B) [Reserved]

    (4) Any sector may submit a written request to amend its approved operations plan to the Regional Administrator. If the amendment is administrative in nature, within the scope of, and consistent with the actions and impacts previously considered for current sector operations, the Regional Administrator may approve an administrative amendment in writing. The Regional Administrator may approve substantive changes to an approved operations plan in a manner consistent with the Administrative Procedure Act and other applicable law. All approved operations plan amendments will be published on the regional office Web site and will be provided to the Council.

    (d) Approved sector allocation proposals. Eligible NE multispecies vessels, as specified in paragraph (a)(3) of this section, may participate in the sectors identified in paragraphs (d)(1) through (25) of this section, provided the operations plan is approved by the Regional Administrator in accordance with paragraph (c) of this section and each participating vessel and vessel operator and/or vessel owner complies with the requirements of the operations plan, the requirements and conditions specified in the letter of authorization issued pursuant to paragraph (c) of this section, and all other requirements specified in this section. All operational aspects of these sectors shall be specified pursuant to the operations plan and sector contract, as required by this section.

    (1) GB Cod Hook Sector.

    (2) GB Cod Fixed Gear Sector.

    (3) Sustainable Harvest Sector.

    (4) Sustainable Harvest Sector II.

    (5) Sustainable Harvest Sector III.

    (6) Port Clyde Community Groundfish Sector.

    (7) Northeast Fishery Sector I.

    (8) Northeast Fishery Sector II.

    (9) Northeast Fishery Sector III.

    (10) Northeast Fishery Sector IV.

    (11) Northeast Fishery Sector V.

    (12) Northeast Fishery Sector VI.

    (13) Northeast Fishery Sector VII.

    (14) Northeast Fishery Sector VIII.

    (15) Northeast Fishery Sector IX.

    (16) Northeast Fishery Sector X.

    (17) Northeast Fishery Sector XI.

    (18) Northeast Fishery Sector XII.

    (19) Northeast Fishery Sector XIII.

    (20) Tristate Sector.

    (21) Northeast Coastal Communities Sector.

    (22) State of Maine Permit Banking Sector.

    (23) State of Rhode Island Permit Bank Sector.

    (24) State of New Hampshire Permit Bank Sector.

    (25) State of Massachusetts Permit Bank Sector

    (e) * * *

    (3)

    (iv) Reallocation of GB haddock or GB cod ACE. Subject to the terms and conditions of the state-operated permit bank's MOAs with NMFS, a state-operated permit bank may re-allocate all, or a portion, of its GB haddock or GB cod ACE specified for the Eastern U.S./Canada Area to the Western U.S./Canada Area provided it complies with the requirements in paragraph (b)(1)(i)(B)(2) of this section.

    § 648.89 [Amended]
    4. In § 648.89, remove and reserve paragraph (f)(3)(ii).
    [FR Doc. 2016-06186 Filed 3-18-16; 8:45 am] BILLING CODE 3510-22-P
    81 54 Monday, March 21, 2016 Notices DEPARTMENT OF AGRICULTURE Forest Service Humboldt County Resource Advisory Committee AGENCY:

    Forest Service, USDA.

    ACTION:

    Notice of meeting.

    SUMMARY:

    The Humboldt County Resource Advisory Committee (RAC) will meet in Eureka, California. The committee is authorized under the Secure Rural Schools and Community Self-Determination Act (the Act) and operates in compliance with the Federal Advisory Committee Act. The purpose of the committee is to improve collaborative relationships and to provide advice and recommendations to the Forest Service concerning projects and funding consistent with Title II of the Act. RAC information can be found at the following Web site: http://www.fs.usda.gov/main/srnf/workingtogether/advisorycommittee.

    DATES:

    The meeting will be held April 12, 2016, at 4:00 p.m.

    All RAC meetings are subject to cancellation. For status of meeting prior to attendance, please contact the person listed under FOR FURTHER INFORMATION CONTACT.

    ADDRESSES:

    The meeting will be held at the Six Rivers National Forest Supervisor's Office, 1330 Bayshore Way, Eureka, California.

    Written comments may be submitted as described under SUPPLEMENTARY INFORMATION. All comments, including names and addresses when provided, are placed in the record and are available for public inspection and copying. The public may inspect comments received at Six Rivers National Forest (NF) Office. Please call ahead to facilitate entry into the building.

    FOR FURTHER INFORMATION CONTACT:

    Lynn Wright, RAC Coordinator, by phone at 707-441-3562 or via email at [email protected]

    Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8:00 a.m. and 8:00 p.m., Eastern Standard Time, Monday through Friday.

    SUPPLEMENTARY INFORMATION:

    The purpose of the meeting is to:

    1. Provide updates regarding status of Secure Rural Schools Title II program and funding; and

    2. Review and recommend projects eligible for funding.

    The meeting is open to the public. The agenda will include time for people to make oral statements of three minutes or less. Individuals wishing to make an oral statement should request in writing by April 8, 2016, to be scheduled on the agenda. Anyone who would like to bring related matters to the attention of the committee may file written statements with the committee staff before or after the meeting. Written comments and requests for time to make oral comments must be sent to Lynn Wright, RAC Coordinator, Six Rivers NF Office, 1330 Bayshore Way, Eureka, California 95501; by email to [email protected], or via facsimile to 707-445-8677.

    Meeting Accommodations: If you are a person requiring reasonable accommodation, please make requests in advance for sign language interpreting, assistive listening devices, or other reasonable accommodation. For access to the facility, please contact the person listed in the section titled FOR FURTHER INFORMATION CONTACT. All reasonable accommodation requests are managed on a case by case basis.

    Dated: March 14, 2016. Merv George, Jr., Forest Supervisor.
    [FR Doc. 2016-06262 Filed 3-18-16; 8:45 am] BILLING CODE 3411-15-P
    DEPARTMENT OF AGRICULTURE Forest Service Glenn and Colusa County Resource Advisory Committee AGENCY:

    Forest Service, USDA.

    ACTION:

    Notice of meeting.

    SUMMARY:

    The Glenn and Colusa County Resource Advisory Committee (RAC) will meet in Willows, CA. The committee is authorized under the Secure Rural Schools and Community Self-Determination Act (the Act) and operates in compliance with the Federal Advisory Committee Act. The purpose of the committee is to improve collaborative relationships and to provide advice and recommendations to the Forest Service concerning projects and funding consistent with Title II of the Act. Additional RAC information, including the meeting agenda and the meeting summary/minutes can be found at the following Web site: http://www.fs.usda.gov/main/pts/specialprojects/racweb.

    DATES:

    The meeting will be held April 18, 2016 from 1:00 p.m. to 4:00 p.m.

    All RAC meetings are subject to cancellation. For status of meeting prior to attendance, please contact the person listed under FOR FURTHER INFORMATION CONTACT.

    ADDRESSES:

    The meeting will be held at 825 North Humboldt Ave., Willows, CA in the Mendocino National Forest Supervisor's Office, Snow Mountain conference room.

    Written comments may be submitted as described under Supplementary Information. All comments, including names and addresses when provided, are placed in the record and are available for public inspection and copying. The public may inspect comments received at Mendocino National Forest, 825 North Humboldt Ave., Willows, CA, (530) 934-3316. Please call ahead to facilitate entry into the building.

    FOR FURTHER INFORMATION CONTACT:

    Zach Rich, Committee Coordinator by phone at (530) 934-3316 or via email at [email protected]

    Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8:00 a.m. and 8:00 p.m., Eastern Standard Time, Monday through Friday.

    SUPPLEMENTARY INFORMATION:

    The purpose of the meeting is:

    1. Discuss current or completed projects and present new projects for review.

    The meeting is open to the public. The agenda will include time for people to make oral statements of three minutes or less. Individuals wishing to make an oral statement should request in writing by April 11, 2016 to be scheduled on the agenda. Anyone who would like to bring related matters to the attention of the committee may file written statements with the committee staff before or after the meeting. Written comments and requests for time for oral comments must be sent to Zach Rich, Committee Coordinator, USDA, Mendocino National Forest, Grindstone Ranger District, 825 N. Humboldt Ave., Willows, CA 95988; or by email to [email protected], or via facsimile to (530) 934-7384.

    Meeting Accommodations: If you are a person requiring reasonable accommodation, please make requests in advance for sign language interpreting, assistive listening devices or other reasonable accommodation for access to the facility or proceedings by contacting the person listed in the section titled FOR FURTHER INFORMATION CONTACT. All reasonable accommodation requests are managed on a case by case basis.

    Dated: March 15, 2016. Jeanette Williams, Acting District Ranger.
    [FR Doc. 2016-06264 Filed 3-18-16; 8:45 am] BILLING CODE 3411-15-P
    DEPARTMENT OF AGRICULTURE Forest Service Del Norte County Resource Advisory Committee AGENCY:

    Forest Service, USDA.

    ACTION:

    Notice of meeting.

    SUMMARY:

    The Del Norte County Resource Advisory Committee (RAC) will meet in Crescent City, California. The committee is authorized under the Secure Rural Schools and Community Self-Determination Act (the Act) and operates in compliance with the Federal Advisory Committee Act. The purpose of the committee is to improve collaborative relationships and to provide advice and recommendations to the Forest Service concerning projects and funding consistent with Title II of the Act. RAC information can be found at the following Web site: http://www.fs.usda.gov/main/srnf/workingtogether/advisorycommittee.

    DATES:

    The meeting will be held April 19, 2016, at 6:00 p.m.

    All RAC meetings are subject to cancellation. For status of meeting prior to attendance, please contact the person listed under FOR FURTHER INFORMATION CONTACT.

    ADDRESSES:

    The meeting will be held at the Del Norte County Unified School District, Board Room, 301 West Washington Boulevard, Crescent City, California.

    Written comments may be submitted as described under SUPPLEMENTARY INFORMATION. All comments, including names and addresses when provided, are placed in the record and are available for public inspection and copying. The public may inspect comments received at Six Rivers National Forest (NF) Office. Please call ahead to facilitate entry into the building.

    FOR FURTHER INFORMATION CONTACT:

    Lynn Wright, RAC Coordinator, by phone at 707-441-3562 or via email at [email protected].

    Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8:00 a.m. and 8:00 p.m., Eastern Standard Time, Monday through Friday.

    SUPPLEMENTARY INFORMATION:

    The purpose of the meeting is to:

    1. Provide updates regarding the status of Secure Rural Schools Program and Title II funding; and

    2. Review and recommend potential projects eligible for funding.

    The meeting is open to the public. The agenda will include time for people to make oral statements of three minutes or less. Individuals wishing to make an oral statement should request in writing by April 14, 2016, to be scheduled on the agenda. Anyone who would like to bring related matters to the attention of the committee may file written statements with the committee staff before or after the meeting. Written comments and requests for time to make oral comments must be sent to Lynn Wright, RAC Coordinator, Six Rivers NF Office, 1330 Bayshore Way, Eureka, California 95501; by email to [email protected], or via facsimile to 707-445-8677.

    Meeting Accommodations: If you are a person requiring reasonable accommodation, please make requests in advance for sign language interpreting, assistive listening devices, or other reasonable accommodation. For access to the facility or proceedings, please contact the person listed in the section titled FOR FURTHER INFORMATION CONTACT. All reasonable accommodation requests are managed on a case by case basis.

    Dated: March 14, 2016. Merv George, Jr., Forest Supervisor.
    [FR Doc. 2016-06259 Filed 3-18-16; 8:45 am] BILLING CODE 3411-15-P
    DEPARTMENT OF AGRICULTURE Forest Service Tehama County Resource Advisory Committee AGENCY:

    Forest Service, USDA.

    ACTION:

    Notice of meeting.

    SUMMARY:

    The Tehama County Resource Advisory Committee (RAC) will meet in Red Bluff, CA. The committee is authorized under the Secure Rural Schools and Community Self-Determination Act (the Act) and operates in compliance with the Federal Advisory Committee Act. The purpose of the committee is to improve collaborative relationships and to provide advice and recommendations to the Forest Service concerning projects and funding consistent with Title II of the Act. Additional RAC information, including the meeting agenda and the meeting summary/minutes can be found at the following Web site: http://www.fs.usda.gov/main/pts/specialprojects/racweb.

    DATES:

    The meeting will be held April 14, 2016 from 9:00 a.m. to 12:00 p.m.

    All RAC meetings are subject to cancellation. For status of meeting prior to attendance, please contact the person listed under FOR FURTHER INFORMATION CONTACT.

    ADDRESSES:

    The meeting will be held at 275 Sale Lane, Red Bluff, CA in the Tehama County Farm Bureau conference room.

    Written comments may be submitted as described under SUPPLEMENTARY INFORMATION. All comments, including names and addresses when provided, are placed in the record and are available for public inspection and copying. The public may inspect comments received at Mendocino National Forest, 825 North Humboldt Ave., Willows, CA, (530) 934-3316. Please call ahead to facilitate entry into the building.

    FOR FURTHER INFORMATION CONTACT:

    Randy Jero, Committee Coordinator by phone at (530) 934-3316 or via email at [email protected]

    Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8:00 a.m. and 8:00 p.m., Eastern Standard Time, Monday through Friday.

    SUPPLEMENTARY INFORMATION:

    The purpose of the meeting is:

    1. Discuss current or completed projects and present new projects for review.

    The meeting is open to the public. The agenda will include time for people to make oral statements of three minutes or less. Individuals wishing to make an oral statement should request in writing by April 7, 2016 to be scheduled on the agenda. Anyone who would like to bring related matters to the attention of the committee may file written statements with the committee staff before or after the meeting. Written comments and requests for time for oral comments must be sent to Randy Jero, Committee Coordinator, USDA, Mendocino National Forest, Grindstone Ranger District, 825 N. Humboldt Ave., Willows, CA 95988; or by email to [email protected], or via facsimile to (530) 934-7384.

    Meeting Accommodations: If you are a person requiring reasonable accommodation, please make requests in advance for sign language interpreting, assistive listening devices or other reasonable accommodation for access to the facility or proceedings by contacting the person listed in the section titled FOR FURTHER INFORMATION CONTACT. All reasonable accommodation requests are managed on a case by case basis.

    Dated: March 15, 2016. Jeanette Williams, Acting District Ranger.
    [FR Doc. 2016-06263 Filed 3-18-16; 8:45 am] BILLING CODE 3411-15-P
    DEPARTMENT OF AGRICULTURE Forest Service Wenatchee-Okanogan Resource Advisory Committee AGENCY:

    Forest Service, USDA.

    ACTION:

    Notice of meetings.

    SUMMARY:

    The Wenatchee-Okanogan Resource Advisory Committee (RAC) will meet in Wenatchee, Washington. The committee is authorized under the Secure Rural Schools and Community Self-Determination Act (Pub. L. 110-343) (the Act) and operates in compliance with the Federal Advisory Committee Act. The purpose of the committee is to improve collaborative relationships and to provide advice and recommendations to the Forest Service concerning projects and funding consistent with Title II of the Act. The purpose of the meeting is to review projects proposed for RAC consideration under Title II of the Act. RAC information can be found at the following Web site: http://www.fs.usda.gov/main/okawen/workingtogether/advisorycommittees.

    DATES:

    The meeting will be held from 9:00 a.m. to 3:30 p.m. on April 21, 2016.

    All RAC meetings are subject to cancellation. For status of meetings prior to attendance, please contact the person listed under FOR FURTHER INFORMATION CONTACT.

    ADDRESSES:

    The meeting will be held at the Sunnyslope Fire Station, 206 Easy Street, Wenatchee, Washington.

    Written comments may be submitted as described under SUPPLEMENTARY INFORMATION. All comments, including names and addresses when provided, are placed in the record and are available for public inspection and copying. The public may inspect comments received at the Okanogan-Wenatchee NF Headquarters Office. Please call ahead to facilitate entry into the building.

    FOR FURTHER INFORMATION CONTACT:

    RAC Coordinator Robin DeMario by phone at 509-664-9292 or via email at [email protected]

    Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8:00 a.m. and 8:00 p.m., Eastern Standard Time, Monday through Friday.

    SUPPLEMENTARY INFORMATION:

    The purpose of the meetings is to:

    1. Provide status updates regarding Secure Rural Schools Program and Title II funding; and

    2. Review and recommend projects for Title II funding for Chelan County.

    These meetings are open to the public. The agenda will include time for people to make oral statements of three minutes or less. Individuals wishing to make an oral statement should request in writing by April 11, 2016, to be scheduled on the agenda. Anyone who would like to bring related matters to the attention of the committee may file written statements with the committee staff before or after the meeting. Written comments and requests for time for oral comments must be sent to Robin DeMario, RAC Coordinator, 215 Melody Lane, Wenatchee, Washington 98801; by email to [email protected] or via facsimile to 509-664-9286.

    Meeting Accommodations: If you are a person requiring reasonable accommodation, please make requests in advance for sign language interpreting, assistive listening devices, or other reasonable accommodation. For access to the facility or proceedings, please contact the person listed in the section titled FOR FURTHER INFORMATION CONTACT. All reasonable accommodation requests are managed on a case by case basis.

    Dated: March 15,2016. Jason Kuiken, Deputy Forest Supervisor, Okanogan-Wenatchee National Forest.
    [FR Doc. 2016-06265 Filed 3-18-16; 8:45 am] BILLING CODE 3411-15-P
    COMMISSION ON CIVIL RIGHTS Notice of Public Meeting of the Illinois Advisory Committee To Discuss Findings and Recommendations Regarding Civil Rights and Environmental Justice 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 Illinois Advisory Committee (Committee) will hold a meeting on Friday, April 01, 2016, at 12:00 p.m. CDT. The purpose of this meeting is to review and discuss testimony received regarding civil rights and environmental justice in the State, in preparation to draft an advisory memorandum to the Commission on the topic. This study is in support of the Commission's nationally focused 2016 statutory enforcement study.

    This meeting is available to the public through the following toll-free call-in number: 888-397-5352, conference ID: 6124172. 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 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 https://database.faca.gov/committee/meetings.aspx?cid=246. 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 Review and Discussion of Testimony: Environmental Justice in Illinois Open Comment Future plans and actions Adjournment
    DATES:

    The meeting will be held on Friday, April 01, 2016, at 12:00 p.m. CDT.

    Public Call Information: Dial: 888-397-5352; Conference ID: 6124172.

    FOR FURTHER INFORMATION CONTACT:

    Melissa Wojnaroski at [email protected] or 312-353-8311.

    Dated: March 16, 2016. David Mussatt, Chief, Regional Programs Unit.
    [FR Doc. 2016-06291 Filed 3-18-16; 8:45 am] BILLING CODE 6335-01-P
    COMMISSION ON CIVIL RIGHTS Notice of Public Meeting of the Indiana Advisory Committee To Discuss Testimony Regarding Civil Rights and the School to Prison Pipeline in Indiana 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 Indiana Advisory Committee (Committee) will hold a meeting on Wednesday, April 20, 2016, from 1:00 p.m.-2:00 p.m. EDT. The Committee will discuss testimony received regarding school discipline policies and practices which may facilitate disparities in juvenile justice involvement and youth incarceration rates on the basis of race, color, disability, or sex, in what has become known as the “School to Prison Pipeline,” in preparation to issue a report to the Commission on the topic. This meeting is open to the public via the following toll free call in number 888-539-3678 conference ID 8845908. Any interested member of the public may call this number and listen to 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. 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 invited to make statements during the designated open comment period. In addition, members of the public may 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 following the meeting at https://database.faca.gov/committee/meetings.aspx?cid=247 and following the links for “Meeting Details” and then “Documents.” 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 1. Welcome and Roll Call 2. Debriefing and Review of Public Testimony: “Civil Rights and the School to Prison Pipeline in Indiana” 3. Open Comment 4. Adjournment
    DATES:

    The meeting will be held on Wednesday, April 20, 2016, from 1:00 p.m.-2:00 p.m. EDT.

    Public Call Information Dial: 888-539-3678. Conference ID: 8845908. FOR FURTHER INFORMATION CONTACT:

    Melissa Wojnaroski, DFO, at 312-353-8311 or [email protected].

    Dated: March 16, 2016. David Mussatt, Chief, Regional Programs Unit.
    [FR Doc. 2016-06293 Filed 3-18-16; 8:45 am] BILLING CODE 6335-01-P
    COMMISSION ON CIVIL RIGHTS Notice of Public Meeting of the Illinois Advisory Committee To Discuss Draft Advisory Memorandum Regarding Civil Rights and Environmental Justice 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 Illinois Advisory Committee (Committee) will hold a meeting on Friday, April 26, 2016, at 12:00 p.m. CDT. The purpose of this meeting is to review and discuss approval of an advisory memorandum to be issued to the Commission regarding civil rights and environmental justice in the State. This memorandum is in support of the Commission's nationally focused 2016 statutory enforcement study.

    This meeting is available to the public through the following toll-free call-in number: 888-503-8169, conference ID: 8281453. 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.

    Member of the public are 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 https://database.faca.gov/committee/meetings.aspx?cid=246. 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 Review and Discussion of Advisory Memorandum: Environmental Justice in Illinois Open Comment Future plans and actions Adjournment
    DATES:

    The meeting will be held on Friday, April 26, 2016, at 12:00 p.m. CDT.

    Public Call Information: Dial: 888-503-8169; Conference ID: 8281453.

    FOR FURTHER INFORMATION CONTACT:

    Melissa Wojnaroski at [email protected] or 312-353-8311.

    Dated: March 16, 2016. David Mussatt, Chief, Regional Programs Unit.
    [FR Doc. 2016-06292 Filed 3-18-16; 8:45 am] BILLING CODE 6335-01-P
    DEPARTMENT OF COMMERCE International Trade Administration [A-475-601] Brass Sheet and Strip From Italy; Final Results of Antidumping Duty Administrative Review; 2014-2015 AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    SUMMARY:

    On November 30, 2015, the Department of Commerce (the Department) published in the Federal Register the preliminary results of the administrative review of the antidumping duty order on brass sheet and strip (BSS) from Italy covering the period of review (POR) March 1, 2014, through February 28, 2015.1 This review covers one company, KME Italy SpA (KME Italy). The Department conducted this administrative review in accordance with section 751(a) of the Tariff Act of 1930, as amended (the Act). The Department gave interested parties an opportunity to comment on the Preliminary Results, but we received no comments. Hence, these final results are unchanged from the Preliminary Results.

    1See Brass Sheet and Strip From Italy; Preliminary Results of Antidumping Duty Administrative Review; 2014-2015, 80 FR 74759 (November 30, 2015) (Preliminary Results) and accompanying Preliminary Decision Memorandum.

    DATE:

    Effective March 21, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Joseph Shuler, AD/CVD Operations, Office I, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-1293.

    SUPPLEMENTARY INFORMATION: Scope of the Order

    The merchandise subject to the antidumping duty order is brass sheet and strip, other than leaded brass and tin brass sheet and strip, from Italy, which is currently classified under subheading 7409.21.00.50, 7409.21.00.75, 7409.21.00.90, 7409.29.00.50, 7409.29.00.75, and 7409.29.00.90 of the Harmonized Tariff Schedule of the United States (HTSUS). The HTSUS numbers are provided for convenience and customs purposes. A full description of the scope of the order is contained in the Preliminary Decision Memorandum. The written description is dispositive.

    Final Results of Review

    As a result of our review, we determine that the following dumping margin on BSS from Italy exists for the period March 1, 2014, through February 28, 2015:

    Exporter/manufacturer Dumping
  • margin
  • (percent)
  • KME Italy SpA 22.00
    Assessment Rates

    We will instruct U.S. Customs and Border Protection (CBP) to apply an ad valorem assessment rate of 22.00 percent to all entries of subject merchandise during the POR which were produced and/or exported by KME Italy SpA. The Department intends to issue assessment instructions to CBP 15 days after the date of publication of these final results of review.

    Cash Deposit Requirements

    The following deposit requirements will be effective upon publication of the notice of final results of administrative review for all shipments of BSS from Italy entered, or withdrawn from warehouse, for consumption on or after the date of publication, as provided by section 751(a)(2) of the Act: (1) The cash deposit rate for KME Italy SpA will be equal to the dumping margin established in the final results of this review; (2) for merchandise exported by manufacturers or exporters not covered in this 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 less-than-fair-value (LTFV) 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 merchandise; and (4) if neither the exporter nor the manufacturer has its own rate, the cash deposit rate will continue to be 5.44 percent, the all-others rate determined in the LTFV investigation. These deposit requirements, when imposed, shall remain in effect until further notice.

    Notifications 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 doubled antidumping duties.

    Notification to Interested Parties

    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 these results in accordance with sections 751(a)(1) and 777(i)(1) of the Act.

    Dated: March 14, 2016. Paul Piquado, Assistant Secretary for Enforcement and Compliance.
    [FR Doc. 2016-06298 Filed 3-18-16; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration [A-523-812, A-535-903, A-520-807, A-552-820] Circular Welded Carbon-Quality Steel Pipe From the Sultanate of Oman, Pakistan, the United Arab Emirates, and the Socialist Republic of Vietnam: Postponement of Preliminary Determinations of Antidumping Duty Investigations AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    FOR FURTHER INFORMATION CONTACT:

    Katherine Johnson at (202) 482-4929 (the Sultanate of Oman (Oman)), David Lindgren at (202) 482-3870 (Pakistan), Dennis McClure at (202) 482-5973 (the United Arab Emirates (the UAE)), or Andrew Huston at (202) 482-4261 (the Socialist Republic of Vietnam (Vietnam)); AD/CVD Operations, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230.

    SUPPLEMENTARY INFORMATION: Postponement of Preliminary Determinations

    On November 17, 2015, the Department of Commerce (the Department) initiated antidumping duty investigations of imports of circular welded carbon-quality steel pipe (CWP) from Oman, Pakistan, the UAE and Vietnam.1 The notice of initiation stated that we would issue our preliminary determinations no later than 140 days after the date of initiation. Currently, the preliminary determinations in these investigations are due on April 11, 2016.2

    1See Circular Welded Carbon-Quality Steel Pipe From the Sultanate of Oman, Pakistan, the Philippines, the United Arab Emirates, and the Socialist Republic of Vietnam: Initiation of Less-Than-Fair-Value Investigations, 80 FR 73708 (November 25, 2015).

    2 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. See 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. All deadlines in this segment of the proceeding have been extended by four business days. The revised deadline for the preliminary determination of these investigations is now April 11, 2016.

    On March 10, 2016, Bull Moose Tube Company; EXLTUBE; Wheatland Tube, a division of JMC Steel Group; and Western Tube and Conduit (hereafter, the petitioners) made timely requests, pursuant to section 733(c)(1)(A) of the Tariff Act of 1930, as amended (the Act), and 19 CFR 351.205(e), for an extension of the deadline for the preliminary determinations in the investigations.3 The petitioners stated that a postponement of the preliminary determinations in all four CWP investigations is necessary to provide the Department with sufficient time to reach reasoned preliminary determinations.

    3See the petitioners' letter to the Department “Circular Welded Carbon-Quality Steel Pipe from the Sultanate of Oman, Pakistan, the United Arab Emirates, and the Socialist Republic of Vietnam: Petitioners' Request to Extend Preliminary Determination,” dated March 10, 2016.

    Under section 733(c)(1)(A) of the Act, if a petitioner makes a timely request for an extension of the period within which the preliminary determination must be made under subsection (b)(1), then the Department may postpone making the preliminary determination under subsection (b)(1) until not later than the 190th day after the date on which the administering authority initiated the investigation. Therefore, for the reasons stated above, and because there are no compelling reasons to deny the petitioners' requests, the Department is postponing the preliminary determinations in these investigations until May 31, 2016, which is 190 days from the date on which the Department initiated these investigations.

    The deadline for the final determinations will continue to be 75 days after the date of the preliminary determinations, unless extended.

    This notice is issued and published pursuant to section 733(c)(2) of the Act and 19 CFR 351.205(f)(1).

    Dated: March 14, 2016. Paul Piquado, Assistant Secretary for Enforcement and Compliance.
    [FR Doc. 2016-06300 Filed 3-18-16; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration [A-570-967/C-570-968] Aluminum Extrusions From the People's Republic of China: Initiation of Anti-Circumvention Inquiry AGENCY:

    Enforcement & Compliance, International Trade Administration, Department of Commerce.

    SUMMARY:

    In response to a request from the Aluminum Extrusions Fair Trade Committee (Petitioner), the Department of Commerce (the Department) is initiating an anti-circumvention inquiry pursuant to sections 781(c) and (d) of the Tariff Act of 1930, as amended, (the Act) to determine whether extruded aluminum products that meet the chemical specifications for 5050-grade aluminum alloy, which are heat-treated, and exported by China Zhongwang Holdings Ltd. and its affiliates (collectively, Zhongwang) are circumventing the antidumping duty (AD) and countervailing duty (CVD) orders on aluminum extrusions from the People's Republic of China (PRC).1

    1See Aluminum Extrusions from the People's Republic of China: Antidumping Duty Order, 76 FR 30650 (May 26, 2011) and Aluminum Extrusions from the People's Republic of China: Countervailing Duty Order, 76 FR 30653 (May 26, 2011) (collectively, the Orders).

    DATE:

    Effective March 21, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Scott Hoefke or Robert James, AD/CVD Operations, Office VI, Enforcement & Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-4947 or (202) 482-0649, respectively.

    SUPPLEMENTARY INFORMATION: Background

    In October 2015, Petitioner filed a joint Scope Clarification and Anti-Circumvention Inquiry Request for certain merchandise from Zhongwang. At the request of the Department, on December 30, 2015, Petitioner refiled its request that the Department conduct an anti-circumvention inquiry pursuant to sections 781(c) and (d) of the Act with respect to extruded aluminum products that meet the chemical specifications for 5050-grade aluminum alloy, which are heat-treated, and exported by Zhongwang.2 In its request, Petitioner contends that Zhongwang's 5050-grade aluminum alloy extrusion products are circumventing the scope of the Orders, and requests that the Department address this alleged circumvention by initiating both a “minor alterations” anti-circumvention inquiry pursuant to section 781(c) of the Act, as well as a “later-developed merchandise” anti-circumvention inquiry pursuant to section 781(d) of the Act.3 With this refiling, we accepted the Petitioner's submission and set the deadline for action as February 22, 2016. On February 22, 2016, the Department extended the deadline to initiate 21 days to March 14, 2016.

    2See Letter to the Secretary, Re “Aluminum Extrusions from the People's Republic of China: Resubmission of Circumvention Inquiry Request Pursuant to the Department's Request,” dated December 30, 2015 (Petitioner's Resubmission of Circumvention Inquiry).

    3Id. at 39-66.

    The scope of the Orders expressly includes extruded products made of alloy “with an Aluminum Association series designation commencing with the number 6” where “magnesium account{s} for at least 0.1 percent but not more than 2.0 percent of total materials by weight, and silicon account{s} for at least 0.1 percent but not more than 3.0 percent of total materials by weight.” 4 In addition, expressly excluded from the Orders are extruded products made of alloy “with an {Aluminum Association} series designation commencing with the number 5 and containing in excess of 1.0 percent magnesium by weight.” 5 Petitioner argues that the scope of the Orders “creates an overlap between the chemical composition standards {in that} there is a narrow window in which a 5xxx-series alloy may and does exist that is comprised of more than one percent but less than two percent magnesium by weight{,}” and that “{i}n order to use 5xxx-series alloy (i.e., 5050 alloy) in an extrusion application, . . . the metal would have to be heat-treated to achieve the mechanical properties that make 6xxx-series alloy so attractive for extrusion applications{.}” 6

    4See Orders, 76 FR 30653.

    5Id.

    6Id.

    Thus, Petitioner maintains that the aluminum alloy extrusion products at issue are manipulated in two ways to evade the scope of the Orders: First, the billet producer must create a precise ratio of silicon to magnesium to result in an alloy that satisfies the chemical composition limits of a 5050 alloy, but behaves and is extrudable like an in-scope 6xxx-series alloy.7 Second, once the alloy is subject to a heat-treatment tempering process, this allows the extruded alloy to achieve the desired tensile strength to mimic the functionality of in-scope 6xxx-series alloy.8 Petitioner argues that The Aluminum Association, the certifying body for the domestic aluminum industry, does not currently recognize heat-treatment as a tempering process for 5050-grade aluminum alloy, which is historically tempered through strain-hardening and/or cold-working processes.9 Rather, The Aluminum Association recognizes heat-treatment as a tempering process for 6xxx-series alloy.10 In short, Petitioner alleges that these aluminum alloy products are subject to chemical and mechanical manipulation, i.e., tempering, which results in circumvention of the Orders.

    7Id. at 42-44.

    8Id. at 42-45

    9Id. at 46-47.

    10Id. at Exhibit 21.

    Petitioner provided evidence that was reasonably available of Zhongwang's alleged circumvention of the Orders through its shipment of such 5050-grade aluminum alloy extrusion products.11 Petitioner provided Zhongwang's financial statements.12 Petitioner points out that Zhongwang has yet to be selected for an administrative review for the Orders, because there were no reported entries of subject merchandise.13 Petitioner also points out that after the imposition of the Orders, the volume of Zhongwang's U.S. exports decreased, but subsequently rebounded since the “sudden” appearance and timing of its importation of such 5050-grade aluminum alloy products.14 Petitioner argues that these facts taken together indicate that Zhongwang is engaging in manipulation to avoid duties.

    11Id. at 41 and 62.

    12Id. at 50 and Exhibit 3.

    13Id. at 50.

    14Id. at 50.

    Scope of Orders

    The merchandise covered by the orders is aluminum extrusions which are shapes and forms, produced by an extrusion process, made from aluminum alloys having metallic elements corresponding to the alloy series designations published by The Aluminum Association commencing with the numbers 1, 3, and 6 (or proprietary equivalents or other certifying body equivalents). Specifically, the subject merchandise made from aluminum alloy with an Aluminum Association series designation commencing with the number 1 contains not less than 99 percent aluminum by weight. The subject merchandise made from aluminum alloy with an Aluminum Association series designation commencing with the number 3 contains manganese as the major alloying element, with manganese accounting for not more than 3.0 percent of total materials by weight. The subject merchandise is made from an aluminum alloy with an Aluminum Association series designation commencing with the number 6 contains magnesium and silicon as the major alloying elements, with magnesium accounting for at least 0.1 percent but not more than 2.0 percent of total materials by weight, and silicon accounting for at least 0.1 percent but not more than 3.0 percent of total materials by weight. The subject aluminum extrusions are properly identified by a four-digit alloy series without either a decimal point or leading letter. Illustrative examples from among the approximately 160 registered alloys that may characterize the subject merchandise are as follows: 1350, 3003, and 6060.

    Aluminum extrusions are produced and imported in a wide variety of shapes and forms, including, but not limited to, hollow profiles, other solid profiles, pipes, tubes, bars, and rods. Aluminum extrusions that are drawn subsequent to extrusion (drawn aluminum) are also included in the scope.

    Aluminum extrusions are produced and imported with a variety of finishes (both coatings and surface treatments), and types of fabrication. The types of coatings and treatments applied to subject aluminum extrusions include, but are not limited to, extrusions that are mill finished (i.e., without any coating or further finishing), brushed, buffed, polished, anodized (including bright-dip anodized), liquid painted, or powder coated. Aluminum extrusions may also be fabricated, i.e., prepared for assembly. Such operations would include, but are not limited to, extrusions that are cut-to-length, machined, drilled, punched, notched, bent, stretched, knurled, swedged, mitered, chamfered, threaded, and spun. The subject merchandise includes aluminum extrusions that are finished (coated, painted, etc.), fabricated, or any combination thereof.

    Subject aluminum extrusions may be described at the time of importation as parts for final finished products that are assembled after importation, including, but not limited to, window frames, door frames, solar panels, curtain walls, or furniture. Such parts that otherwise meet the definition of aluminum extrusions are included in the scope. The scope includes the aluminum extrusion components that are attached (e.g., by welding or fasteners) to form subassemblies, i.e., partially assembled merchandise unless imported as part of the finished goods `kit' defined further below. The scope does not include the non-aluminum extrusion components of subassemblies or subject kits.

    Subject extrusions may be identified with reference to their end use, such as fence posts, electrical conduits, door thresholds, carpet trim, or heat sinks (that do not meet the finished heat sink exclusionary language below). Such goods are subject merchandise if they otherwise meet the scope definition, regardless of whether they are ready for use at the time of importation.

    The following aluminum extrusion products are excluded: Aluminum extrusions made from aluminum alloy with an Aluminum Association series designations commencing with the number 2 and containing in excess of 1.5 percent copper by weight; aluminum extrusions made from aluminum alloy with an Aluminum Association series designation commencing with the number 5 and containing in excess of 1.0 percent magnesium by weight; and aluminum extrusions made from aluminum alloy with an Aluminum Association series designation commencing with the number 7 and containing in excess of 2.0 percent zinc by weight.

    The scope also excludes finished merchandise containing aluminum extrusions as parts that are fully and permanently assembled and completed at the time of entry, such as finished windows with glass, doors with glass or vinyl, picture frames with glass pane and backing material, and solar panels. The scope also excludes finished goods containing aluminum extrusions that are entered unassembled in a “finished goods kit.” A finished goods kit is understood to mean a packaged combination of parts that contains, at the time of importation, all of the necessary parts to fully assemble a final finished good and requires no further finishing or fabrication, such as cutting or punching, and is assembled “as is” into a finished product. An imported product will not be considered a “finished goods kit” and therefore excluded from the scope of the investigation merely by including fasteners such as screws, bolts, etc. in the packaging with an aluminum extrusion product.

    The scope also excludes aluminum alloy sheet or plates produced by other than the extrusion process, such as aluminum: Products produced by a method of casting. Cast aluminum products are properly identified by four digits with a decimal point between the third and fourth digit. A letter may also precede the four digits. The following Aluminum Association designations are representative of aluminum alloys for casting: 208.0, 295.0, 308.0, 355.0, C355.0, 356.0, A356.0, A357.0, 360.0, 366.0, 380.0, A380.0, 413.0, 443.0, 514.0, 518.1, and 712.0. The scope also excludes pure, unwrought aluminum in any form.

    The scope also excludes collapsible tubular containers composed of metallic elements corresponding to alloy code 1080A as designated by The Aluminum Association where the tubular container (excluding the nozzle) meets each of the following dimensional characteristics: (1) Length of 37 millimeters (“mm”) or 62 mm, (2) outer diameter of 11.0 mm or 12.7 mm, and (3) wall thickness not exceeding 0.13 mm.

    Also excluded from the scope of these orders are finished heat sinks. Finished heat sinks are fabricated heat sinks made from aluminum extrusions the design and production of which are organized around meeting certain specified thermal performance requirements and which have been fully, albeit not necessarily individually, tested to comply with such requirements.

    Imports of the subject merchandise are provided for under the following categories of the Harmonized Tariff Schedule of the United States (HTSUS): 7609.00.00, 7610.10.00, 7610.90.00, 7615.10.30, 7615.10.71, 7615.10.91, 7615.19.10, 7615.19.30, 7615.19.50, 7615.19.70, 7615.19.90, 7615.20.00, 7616.99.10, 7616.99.50, 8479.89.98, 8479.90.94, 8513.90.20, 9403.10.00, 9403.20.00, 7604.21.00.00, 7604.29.10.00, 7604.29.30.10, 7604.29.30.50, 7604.29.50.30, 7604.29.50.60, 7608.20.00.30, 7608.20.00.90, 8302.10.30.00, 8302.10.60.30, 8302.10.60.60, 8302.10.60.90, 8302.20.00.00, 8302.30.30.10, 8302.30.30.60, 8302.41.30.00, 8302.41.60.15, 8302.41.60.45, 8302.41.60.50, 8302.41.60.80, 8302.42.30.1 0, 8302.42.30.15, 8302.42.30.65, 8302.49.60.35, 8302.49.60.45, 8302.49.60.55, 8302.49.60.85, 8302.50.00.00, 8302.60.90.00, 8305.10.00.50, 8306.30.00.00, 8414.59.60.90, 8415.90.80.45, 8418.99.80.05, 8418.99.80.50, 8418.99.80.60, 8419.90.10.00, 8422.90.06.40, 8473.30.20.00, 8473.30.51.00, 8479.90.85.00, 8486.90.00.00, 8487.90.00.80, 8503.00.95.20, 8508.70.00.00, 8515.90.20.00, 8516.90.50.00, 8516.90.80.50, 8517.70.00.00, 8529.90.73.00, 8529.90.97.60, 8536.90.80.85, 8538.10.00.00, 8543.90.88.80, 8708.29.50.60, 8708.80.65.90, 8803.30.00.60, 9013.90.50.00, 9013.90.90.00, 9401.90.50.81, 9403.90.10.40, 9403.90.10.50, 9403.90.10.85, 9403.90.25.40, 9403.90.25.80, 9403.90.40.05, 9403.90.40.10, 9403.90.40.60, 9403.90.50.05, 9403.90.50.10, 9403.90.50.80, 9403.90.60.05, 9403.90.60.10, 9403.90.60.80, 9403.90.70.05, 9403.90.70.10, 9403.90.70.80, 9403.90.80.10, 9403.90.80.15, 9403.90.80.20, 9403.90.80.41, 9403.90.80.51, 9403.90.80.61, 9506.11.40.80, 9506.51.40.00, 9506.51.60.00, 9506.59.40.40, 9506.70.20.90, 9506.91.00.10, 9506.91.00.20, 9506.91.00.30, 9506.99.05.10, 9506.99.05.20, 9506.99.05.30, 9506.99.15.00, 9506.99:20.00, 9506.99.25.80, 9506.99.28.00, 9506.99.55.00, 9506.99.60.80, 9507.30.20.00, 9507.30.40.00, 9507.30.60.00, 9507.90.60.00, and 9603.90.80.50.

    The subject merchandise entered as parts of other aluminum products may be classifiable under the following additional Chapter 76 subheadings: 7610.10, 7610.90, 7615.19, 7615.20, and 7616.99 as well as under other HTSUS chapters. In addition, fin evaporator coils may be classifiable under HTSUS numbers: 8418.99.80.50 and 8418.99.80.60. While HTSUS subheadings are provided for convenience and customs purposes, the written description of the scope of these orders is dispositive.

    Merchandise Subject to the Anti-Circumvention Inquiry

    This anti-circumvention inquiry covers extruded aluminum products that meet the chemical specifications for 5050-grade aluminum alloy, which are heat-treated, and exported by Zhongwang.15 The Department intends to consider whether the inquiry should apply to all imports of extruded aluminum products that meet the chemical specifications for 5050-grade aluminum alloy and are heat-treated, regardless of producer, exporter, or importer, from the PRC.

    15 Petitioner provided names of known Zhongwang's Chinese and U.S. affiliates. Through the course of inquiry, we intend to examine in addition to Zhongwang the following affiliated companies: Dalian Liwan Trade Co., Ltd.; Tianjin Boruxin Trading Co., Ltd.; and Dragon Luxe Limited; Pencheng Aluminum Enterprise Inc. USA; Global Aluminum (USA) Inc.; Signature Aluminum Canada Inc.; Aluminum Shapes, LLC; Perfectus Aluminum Inc.; and Perfectus Aluminum Acquisitions LLC. We also intend to examine whether any Zhongwang's affiliates are the producers of the merchandise at issue.

    Request for a Minor Alterations Anti-Circumvention Inquiry

    Section 781(c)(1) of the Act provides that the Department may find circumvention of an AD or CVD order when products which are of the class or kind of merchandise subject to an AD or CVD order have been “altered in form or appearance in minor respects . . . whether or not included in the same tariff classification.” Section 781(c)(2) of the Act provides an exception that “{p}aragraph 1 shall not apply with respect to altered merchandise if the administering authority determines that it would be unnecessary to consider the altered merchandise within the scope of the {AD or CVD} order{.}”

    The Department notes that, while the statute is silent as to what factors to consider in determining whether alterations are properly considered “minor,” the legislative history of this provision indicates there are certain factors which should be considered before reaching an anti-circumvention determination. In conducting an anti-circumvention inquiry under section 781(c) of the Act, the Department has generally relied upon “such criteria as the overall physical characteristics of the merchandise, the expectations of the ultimate users, the use of the merchandise, the channels of marketing and the cost of any modification relative to the total value of the imported product.” 16 The Department will examine these factors in evaluating an allegation of minor alteration under section 781(c) of the Act and 19 CFR 351.225(i). Each case is highly dependent on the facts on the record, and must be analyzed in light of those specific facts. Thus, although not specified in the statute, the Department has also included additional factors in its analysis, such as the circumstances under which the products at issue entered the United States and the timing and quantity of said entries during the circumvention review period.17

    16See S. Rep. No. 71, 100th Cong., 1st Sess. 100 (1987) (“In applying this provision, the Commerce Department should apply practical measurements regarding minor alterations, so that circumvention can be dealt with effectively, even where such alterations to an article technically transform it into a differently designated article.”).

    17See, e.g., Brass Sheet and Strip From West Germany; Negative Preliminary Determination of Circumvention of Antidumping Duty Order, 55 FR 32655 (August 10, 1990) unchanged in Brass Sheet and Strip From Germany; Negative Final Determination of Circumvention of Antidumping Duty Order, 56 FR 65884 (December 19, 1991), see also, e.g., Small Diameter Graphite Electrodes From the People's Republic of China: Initiation of Anticircumvention Inquiry, 77 FR 37873 (June 25, 2012).

    As discussed above, Petitioner argues that the manipulation in chemical composition and tempering to create an aluminum extrusions product which technically meets the scope exclusion for 5xxx-series but behaves like in-scope 6xxx-series subject merchandise results in circumvention of the Orders as a minor alteration of in-scope merchandise, pursuant to section 781(c) of the Act.18 Specifically, Petitioner argues that the products at issue, given their heat-treatment, would otherwise be subject 6xxx-series alloy but for the minor increase in magnesium levels, which allows for a superficial designation as a 5050 alloy.19 According to Petitioner, this would require a shift in chemistry of a 6063 alloy at the top end of its magnesium content range (i.e., 0.45 to 0.90 percent by weight) by increasing the magnesium content level by a mere 0.2 percent by weight to achieve a magnesium content of 1.1 percent by weight, which is within the low end of the range of the magnesium content range for 5050 alloy.20 Petitioner states this increase at today's magnesium market price would result in a 4.63 percent increase to the 5050 billet's overall per pound alloying cost, which in turn represents a negligible 0.52 percent increase to the overall per-pound billet production cost.21 Petitioner states that in Cut-to-Length Plate from China, 22 the Department found similar minor changes to alloying elements are not sufficient to remove what would otherwise be subject merchandise from the scope.23

    18See Petitioner's Resubmission of Circumvention Inquiry at 52-53.

    19Id.

    20Id. at 52.

    21Id.

    22See Affirmative Final Determination of Circumvention of the Antidumping Duty Order on Certain Cut-to-Length Carbon Steel Plate from the People's Republic of China, 76 FR 50996 (August 17, 2011) (Cut-to-Length Plate from China).

    23See Petitioner's Resubmission of Circumvention Inquiry at 52.

    Finally, once a precise ratio of silicon to magnesium is achieved, which falls within the chemical composition limits for a 5050 alloy, but is virtually indistinguishable from the chemical composition limits for a 6xxx-series alloy, the product is ready to be heat-treated—the same tempering process used for 6xxx-series alloy, and which is not recognized by The Aluminum Association as a tempering process for 5050 alloy—which results in a product similar to a 6xxx-series aluminum extrusion product, save for the minor increase in magnesium.

    In its request for a minor alterations anti-circumvention inquiry, Petitioner presented the following evidence with respect to each of the aforementioned criteria.

    A. Overall Physical Characteristics

    Petitioner contends that companies such as Zhongwang have created and shipped extruded aluminum products meeting the chemical specifications for 5050-grade aluminum alloy and which are heat-treated, which results in aluminum extrusion products whose chemical and mechanical properties have been manipulated to be similar to those of in-scope 6xxx-series alloy products. Petitioner has provided information relating to an importer that has admitted to sourcing 5050-grade aluminum alloy products for use in products and applications which have traditionally used 6xxx-series alloys, as well as information relating to a domestic producer that has been asked to provide price quotes for the manufacture of products using 5050 alloy which have been made previously with 6xxx-series alloy. Petitioner also obtained and tested specimens labeled as 5050-grade aluminum alloy products, which demonstrated that the chemical composition overlapped with 6xxx-series standards, and had been heat-treated. While Petitioner did not test specimens of Zhongwang's products, information reasonably available to Petitioner indicates that the overall physical characteristics of Zhongwang's 5050-grade aluminum alloy extrusion products would be no different from the tested products, and therefore should be found similar to products made of series 6xxx aluminum alloys.24

    24See Petitioner's Resubmission of Circumvention Inquiry at page 56-58.

    B. Expectations of the Ultimate Users and Use of the Merchandise

    Petitioner alleges that the expectations of the purchasers and ultimate use of Zhongwang's 5050-grade aluminum alloy extrusion products are identical to those of products produced from 6xxx-series alloy.25 Petitioner states that the specific alloy out of which the aluminum extrusion is produced has no apparent bearing or impact on the ultimate use.26 Petitioner provided evidence suggesting that the type of alloy had no bearing on customers' selection of aluminum extrusion products, and that, in some cases, 5050-grade aluminum alloy products were used specifically to avoid antidumping and countervailing duties.27 Petitioner also provided information indicating that domestic producers are competing with Chinese-sourced 5050-grade aluminum alloy products for the same shower enclosure components designed to be manufactured in 6463 alloy.28 Petitioner further contends that, although it does not have access to Zhongwang's specific 5050-grade aluminum alloy extrusion products, evidence confirms that Zhongwang began importing a large volume of 5050-grade aluminum alloy products after the Orders came into place.29 Further, Petitioner contends that there is no indication that Zhongwang's products are any different from the 5050-grade aluminum alloy products which have been competing directly with the U.S. industry.30

    25Id. at 58-60.

    26Id.

    27Id. at 58-60, Exhibit 30, Exhibit 28, and Exhibit 22.

    28Id. at 59 and Exhibit 28.

    29Id. at 65.

    30Id. at 59.

    C. Channels of Marketing

    Petitioner maintains that there is no difference between the channels of marketing for aluminum extrusions made from in-scope alloy, i.e., 6xxx-series aluminum extrusions, and those of 5050-grade aluminum alloy extrusion products. For instance, Petitioner provided evidence showing that such 5050-grade aluminum alloy extruded products are marketed by Chinese producers to purchasers in the same manner that 6xxx-series are marketed, and such marketing demonstrates to customers and end-users that these products are interchangeable with 6xxx-series products.31 Moreover, Petitioner states that Zhongwang's Web site advertises a collection of products in a single location on its Web site without designation or differentiation between products crafted or capable of being crafted of different alloys. This demonstrates, Petitioner contends, that Zhongwang's 5050-grade aluminum alloy extrusion products are not marketed any differently from merchandise produced from in-scope 6xxx-series alloy.32

    31Id. at 60.

    32Id. at 60-61 and Exhibit 19.

    D. Cost of Modification

    Petitioner indicates that the cost of the minor alterations to shift the chemistry of a high-magnesium series 6xxx alloy to one that one could be designated as 5050 alloy is minimal at best.33 As discussed above, Petitioner specifically mentions that one would need to increase a 6063 alloy's maximized magnesium content level by 0.2 percent by weight.34 Petitioner states that this increase at magnesium's market price at the time of filing would result in a 4.63 percent increase to the 5050 billet's overall per pound alloying cost which, Petitioner avers, is insignificant given the Orders antidumping and countervailing duties are over 180 percent.35

    33Id. at 63.

    34Id.

    35Id.

    E. Circumstance Under Which the Subject Products Entered the United States

    Petitioner argues that at the completion of the original investigations, the PRC-wide antidumping rate was 33.28 percent, and the PRC-wide countervailing duty rate was 374.15 percent.36 Petitioner asserts that these considerable margins have given Zhongwang tremendous financial incentive to circumvent the Orders so as not to incur the costs associated with the duties levied on the entries of subject merchandise.37

    36Id. at 63-64.

    37Id. at 64.

    F. Timing of Entries

    Petitioner asserts that the timing of the entries of Zhongwang's 5050-grade aluminum alloy products show Zhongwang's attempt to circumvent the Orders. 38 Petitioner supported this assertion by providing import data showing Zhongwang's shipments of 5050-grade aluminum alloy products began after the imposition of the Orders in 2011.39

    38Id.

    39Id. at 65.

    Request for a Later-Developed Merchandise Anti-Circumvention Inquiry

    Section 781(d)(1) of the Act provides that the Department may initiate an anti-circumvention inquiry to determine whether merchandise developed after an AD or CVD investigation is initiated (“later-developed merchandise”) is within the scope of the order(s). In conducting later-developed merchandise anti-circumvention inquiries under section 781(d)(1) of the Act, the Department will evaluate whether the general physical characteristics of the merchandise under consideration are the same as subject merchandise covered by the order, whether the expectations of the ultimate purchasers of the merchandise under consideration are no different than the expectations of the ultimate purchases of subject merchandise, whether the ultimate use of the subject merchandise and the merchandise under consideration are the same, whether the channels of trade of both products are the same, whether there are any differences in the advertisement and display of both products,40 and if the merchandise under consideration was commercially available at the time of the investigation, i.e., the product was present in the commercial market or the product was tested and ready for commercial production.41

    40See section 781(d)(1) of the Act.

    41See Later-Developed Merchandise Anticircumvention Inquiry of the Antidumping Duty Order on Petroleum Wax Candles from the People's Republic of China: Affirmative Preliminary Determination of Circumvention of the Antidumping Duty Order, 71 FR 32033, 32035 (June 2, 2006) unchanged in Later-Developed Merchandise Anticircumvention Inquiry of the Antidumping Duty Order on Petroleum Wax Candles from the People's Republic of China: Affirmative Final Determination of Circumvention of the Antidumping Duty Order, 71 FR 59075 (October 6, 2006).

    As discussed above, Petitioner argues that the manipulation in chemical composition and tempering to create an aluminum extrusions product which technically meets the scope exclusion for 5xxx-series but behaves like in-scope 6xxx-series subject merchandise results in circumvention of the Orders as later-developed merchandise, pursuant to section 781(d) of the Act. Specifically, Petitioner argues that the products constitute later-developed merchandise because: (1) While the 5050-grade alloy designation existed at the time of the investigation, The Aluminum Association did not, and still does not, recognize heat-treatment as a tempering process for 5050-grade aluminum alloy; (2) documents from the investigation indicate that soft alloys, i.e., 1xxx-, 3xxx-, and 6xxx-series alloys, were used in a wide variety of aluminum extrusion products, while hard alloys—such as 5xxx-series—were extremely limited and highly specific, appearing primarily in marine and aerospace applications; and (3) at the time of the filing of the petition, The Aluminum Association recognized only four 5xxx-series alloys employed in extrusion applications—which did not include 5050-grade aluminum alloy.42

    42See Petitioner's Resubmission of Circumvention Inquiry at 54-55.

    As described in the “Request for a Minor Alterations Anti-Circumvention Inquiry” section above, Petitioner has provided evidence and argument pertaining to the general physical characteristics of the merchandise under consideration as being the same as subject merchandise covered by the order, whether the expectations of the ultimate purchasers of the merchandise under consideration are no different than the expectations of the ultimate purchases of subject merchandise, and whether the ultimate use of the subject merchandise and the merchandise under consideration are the same. In the context of its later-developed merchandise request, Petitioner has further provided the following evidence pertaining to the remaining aforementioned criteria.

    A. Advertisement, Display, and Channel of Trade

    Petitioner maintains that the advertisement, display, and channels of trade of manipulated 5050-grade aluminum alloy extruded products are identical to those of merchandise produced from in-scope alloys, i.e., 6xxx-series.43 With respect to advertisement and display, Petitioner provided evidence showing that such 5050-grade aluminum alloy extruded products are advertised by Chinese producers to purchasers in the same manner that 6xxx-series are advertised, which demonstrates to customers and end-users that these products are interchangeable with 6xxx-series products.44 Moreover, Petitioner states that Zhongwang's Web site advertises and displays a collection of products in a single location on its Web site without designation or differentiation between products crafted or capable of being crafted of different alloys, thus demonstrating that Zhongwang's 5050-grade aluminum alloy extrusion products are not advertised or displayed any differently from merchandise produced from in-scope 6xxx-series alloy.45

    43Id. at 60-62.

    44Id. at 60.

    45Id. at 60-61 and Exhibit 19.

    With respect to channels of trade, Petitioner provided information relating to a domestic producer that has been asked to provide price quotes for the manufacture of products using 5050-grade alloy which have been made previously with 6xxx-series alloy.46 In addition, Petitioner provided evidence demonstrating a company's loss of business as a result of the replacement of 6xxx-series alloy in products with Chinese 5050-grade alloy.47 Petitioner argues that these 5050-grade aluminum alloy extrusion products, which caused lost U.S. business, are likely being sold in the identical channels of trade as the original series 6xxx alloy versions.48

    46Id. at 61, Exhibit 22.

    47Id. at 61, Exhibit 30.

    48Id. at 61.

    With respect to Zhongwang, Petitioner notes that the importer of record for nearly all of Zhongwang's shipments of aluminum product to the United States from 2009 to date was the same, regardless of whether those shipments were 6xxx-series profiles prior to the imposition of the orders or 5050-grade products after the imposition of the orders.49 According to Petitioner, there is no evidence reasonably available which indicates that the channels of trade in which Zhongwang's 5050-grade aluminum alloy extrusion products are sold are different from those in which similar 6xxx-series products are sold.50 However, the evidence that is reasonably available, i.e., Zhongwang's Web site, shows that Zhongwang advertises a collection of products manufactured exclusively from series 6xxx-series alloy and one product manufactured from 7xxx-series alloy, but makes no mention of series 5xxx products.51 Petitioner contends that given Zhongwang's importation levels of 5050-grade aluminum alloy extrusion products into the United States it would be advertising these products separately or at the very least mentioned on its Web site.52 Petitioner argues that the silence with which Zhongwang's Web site treats 5xxx-series products which it is manufacturing and shipping to the United States demonstrates that these products are interchangeable with 6xxx-series alloy products and intended to circumvent the orders.53

    49Id. at 61, Exhibit 8.

    50Id. at 61-62.

    51Id. at 62 and Exhibit 19.

    52Id. at 62.

    53Id.

    B. Commercial Availability

    Petitioner states that, at the time of the investigation, series 5050 alloy existed but was associated with rolling applications, rather than extrusions.54 Furthermore, Petitioner states that heat-treated 5050 alloy extrusions are not recognized by The Aluminum Association for the purposes of aluminum extrusions.55 Additionally, Petitioner adds that The Aluminum Association did not recognize heat-treating series 5050 alloys at the time of the Petition, and still does not recognize doing so to the present day.56 Thus, Petitioner argues that extruded aluminum products meeting the chemical specifications for 5050-grade aluminum alloy and which are heat-treated were not commercially available at the time of the investigations; they were developed and made available after the publication of the Orders.

    54Id. at 54.

    55See Petitioner's Resubmission of Circumvention Inquiry at 54.

    56Id. at 54, Exhibit 21, and Exhibit 27.

    Conclusion

    Based on the information provided by Petitioner, the Department finds there is sufficient basis to initiate an anti-circumvention inquiry, pursuant to sections 781(c) and 781(d) of the Act. The Department will determine whether the merchandise subject to the inquiry (identified in the “Merchandise Subject to the Anti-Circumvention Inquiry” section above) involves either a minor alteration to subject merchandise in such minor respects that it should be subject to the Orders, and/or represents a later-developed product that can be considered subject to the Orders.

    The Department will not order the suspension of liquidation of entries of any additional merchandise at this time. However, in accordance with 19 CFR 351.225(l)(2), if the Department issues a preliminary affirmative determination, we will then instruct U.S. Customs and Border Protection to suspend liquidation and require a cash deposit of estimated duties, at the applicable rate, for each unliquidated entry of the merchandise at issue, entered or withdrawn from warehouse for consumption on or after the date of initiation of the inquiry.

    In the event we issue a preliminary affirmative determination of circumvention pursuant to section 781(d) of the act (later-developed merchandise), we intend to notify the International Trade Commission, in accordance with section 781(e)(1) of the Act and 19 CFR 351.225(f)(7)(i)(C), if applicable.

    The Department will, following consultation with interested parties, establish a schedule for questionnaires and comments on the issues. The Department intends to issue its final determination within 300 days of this initiation, in accordance with section 781(f) of the Act.

    This notice is published in accordance with sections 781(c) and 781(d) of the Act and 19 CFR 351.225(i) and (j).

    Dated: March 14, 2016. Paul Piquado, Assistant Secretary for Enforcement and Compliance.
    [FR Doc. 2016-06299 Filed 3-18-16; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration Pacific Fishery Management Council; Public Meetings AGENCY:

    National Marine Fisheries Service, National Oceanic and Atmospheric Administration, Commerce.

    ACTION:

    Notice of public meetings.

    SUMMARY:

    The Pacific Fishery Management Council (Pacific Council) and its advisory entities will hold public meetings.

    DATES:

    The Pacific Council and its advisory entities will meet April 8-14, 2016. The Pacific Council meeting will begin on Saturday, April 9, 2016 at 8 a.m., reconvening each day through Thursday, April 14, 2016. All meetings are open to the public, except a closed session will be held at 3 p.m. on Saturday, April 9 to address litigation and personnel matters. The Pacific Council will meet as late as necessary each day to complete its scheduled business.

    ADDRESSES:

    Meetings of the Council and its advisory entities will be held at the Hilton Vancouver Hotel, 301 West Sixth Street, Vancouver, WA 98660; telephone 360-993-4500; and the Heathman Lodge, 7801 NE. Greenwood Drive, Vancouver, WA 98662; phone: (360) 254-3100.

    Council address: Pacific Fishery Management Council, 7700 NE. Ambassador Place, Suite 101, Portland, OR 97220. Instructions for attending the meeting via live stream broadcast are given under SUPPLEMENTARY INFORMATION, below.

    FOR FURTHER INFORMATION CONTACT:

    Dr. Donald O. McIsaac, Executive Director; telephone: (503) 820-2280 or (866) 806-7204 toll free; or access the Pacific Council Web site, http://www.pcouncil.org for the current meeting location, proposed agenda, and meeting briefing materials.

    SUPPLEMENTARY INFORMATION:

    The April 9-14, 2016 meeting of the Pacific Council will be streamed live on the Internet. The broadcasts begin at 8 a.m. Pacific Time (PT) Saturday, April 9, 2016 and continue daily through Thursday, April 14, 2016. Broadcasts end daily at 6 p.m. PT or when business for the day is complete. Only the audio portion and presentations displayed on the screen at the Pacific Council meeting will be broadcast. The audio portion is listen-only; you will be unable to speak to the Pacific Council via the broadcast. To access the meeting online please use the following link: http://www.gotomeeting.com/online/webinar/join-webinar and enter the April Webinar ID, 105-442-547 and your email address. You can attend the webinar online using a computer, tablet, or smart phone, using the GoToMeeting application. It is recommended that you use a computer headset to listen to the meeting, but you may use your telephone for the audio portion only of the meeting. The audio portion may be attended using a telephone by dialing the toll number 1-646-307-1720 (not a toll-free number), audio access code 391-457-815, and enter the audio pin shown after joining the webinar.

    The following items are on the Pacific Council agenda, but not necessarily in this order. Agenda items noted as “(Final Action)” refer to actions requiring the Council to transmit a proposed fishery management plan, proposed plan amendment, or proposed regulations to the Secretary of Commerce, under Sections 304 or 305 of the Magnuson-Stevens Fishery Conservation and Management Act. Additional detail on agenda items, Council action, advisory entity meeting times, and meeting rooms are described in Agenda Item A.4, Proposed Council Meeting Agenda, and will be in the advance April 2016 briefing materials and posted on the Council Web site at www.pcouncil.org.

    A. Call to Order 1. Opening Remarks 2. Roll Call 3. Executive Director's Report 4. Approve Agenda B. Open Comment Period 1. Comments on Non-Agenda Items C. Administrative Matters 1. Marine Planning Update 2. Comments on Bycatch Strategy and Bycatch Reduction Plans 3. Catch Share Program Review: Comments on National Guidance and Preliminary Plan for West Coast Trawl Catch Share Program Review 4. Legislative Matters 5. Electronic Technology Plan Update 6. Membership Appointments and Council Operating Procedures 7. Future Council Meeting Agenda and Workload Planning D. Enforcement Issues 1. Annual U.S. Coast Guard Fishery Enforcement Plan 2. Final Action on Regulations for Vessel Movement Monitoring E. Salmon Management 1. Tentative Adoption of 2016 Ocean Salmon Management 2. Methodology Review Preliminary Topic Selection 3. Clarify Council Direction on 2016 Management Measures 4. Final Action on 2016 Salmon Management Measures 5. Annual Management Schedule Changes Amendment Scoping F. Groundfish Management 1. National Marine Fisheries Service Report 2. Final Action to Implement the 2016 Pacific Whiting Fishery Under the U.S.-Canada Pacific Whiting Fishery 3. Final Action to Adopt Biennial Specifications for 2017-18 Fisheries 4. Final Action to Adopt Fixed Gear Electronic Monitoring Alternative and Deem Whiting and Fixed Gear Electronic Monitoring Regulations 5. Groundfish Essential Fish Habitat (EFH) and Rockfish Conservation Area Amendment 6. Preliminary Preferred Management Measures Alternatives for 2017-18 Fisheries 7. Initial Stock Assessment Plans and Terms of Reference for Groundfish and Coastal Pelagic Species 8. Inseason Adjustments (Final Action) G. Habitat 1. Current Habitat Issues H. Coastal Pelagic Species Management 1. Final Action on Sardine Assessment, Specifications, and Management Measures I. Pacific Halibut Management 1. Final Incidental Landing Restrictions for 2016-17 Salmon Troll Fishery (Final Action) Advisory Body Agendas

    Advisory body agendas will include discussions of relevant issues that are on the Council agenda for this meeting, and may also include issues that may be relevant to future Council meetings. Proposed advisory body agendas for this meeting will be available on the Council Web site http://www.pcouncil.org/council-operations/council-meetings/current-briefing-book/ no later than Tuesday, March 29, 2016.

    Schedule of Ancillary Meetings Day 1—Friday, April 8, 2016 Groundfish Electronic Monitoring Policy Advisory Committee and Groundfish Electronic Monitoring Technical Advisory Committee 8 a.m. Groundfish Management Team 8 a.m. Salmon Advisory Subpanel 8 a.m. Salmon Technical Team 8 a.m. Habitat Committee (Heathman Lodge; 7801 NE. Greenwood Dr., Vancouver, WA 98662) 9 a.m. Model Evaluation Workgroup 10 a.m. Budget Committee 1 p.m. Legislative Committee 2 p.m. Tribal Policy Group 7 p.m. Tribal and Washington Technical Group Ad Hoc Day 2—Saturday, April 9, 2016 California State Delegation 7 a.m. Oregon State Delegation 7 a.m. Washington State Delegation 7 a.m. Coastal Pelagic Species Advisory Subpanel 8 a.m. Coastal Pelagic Species Management Team 8 a.m. Groundfish Advisory Subpanel 8 a.m. Groundfish Management Team 8 a.m. Salmon Advisory Subpanel 8 a.m. Salmon Technical Team 8 a.m. Scientific and Statistical Committees 8 a.m. Habitat Committee (Heathman Lodge; 7801 NE. Greenwood Dr., Vancouver, WA 98662) 9 a.m. Enforcement Consultants 3 p.m. Tribal Policy Group Ad hoc Tribal and Washington Technical Group Ad hoc Day 3—Sunday, April 10, 2016 California State Delegation 7 a.m. Oregon State Delegation 7 a.m. Washington State Delegation 7 a.m. Coastal Pelagic Species Advisory Subpanel 8 a.m. Coastal Pelagic Species Management Team 8 a.m. Groundfish Advisory Subpanel 8 a.m. Groundfish Management Team 8 a.m. Salmon Advisory Subpanel 8 a.m. Salmon Technical Team 8 a.m. Enforcement Consultants Ad hoc Tribal Policy Group Ad hoc Tribal and Washington Technical Group Ad hoc Day 4—Monday, April 11, 2016 California State Delegation 7 a.m. Oregon State Delegation 7 a.m. Washington State Delegation 7 a.m. Groundfish Advisory Subpanel 8 a.m. Groundfish Management Team 8 a.m. Salmon Advisory Subpanel 8 a.m. Salmon Technical Team 8 a.m. Enforcement Consultants Ad hoc Tribal Policy Group Ad hoc Tribal and Washington Technical Group Ad hoc Day 5—Tuesday, April 12, 2016 California State Delegation 7 a.m. Oregon State Delegation 7 a.m. Washington State Delegation 7 a.m. Groundfish Advisory Subpanel 8 a.m. Groundfish Management Team 8 a.m. Salmon Advisory Subpanel 8 a.m. Salmon Technical Team 8 a.m. Enforcement Consultants Ad hoc Tribal Policy Group Ad hoc Tribal and Washington Technical Group Ad hoc Day 6—Wednesday, April 13, 2016 California State Delegation 7 a.m. Oregon State Delegation 7 a.m. Washington State Delegation 7 a.m. Groundfish Advisory Subpanel 8 a.m. Groundfish Management Team 8 a.m. Salmon Technical Team 8 a.m. Enforcement Consultants Ad hoc Tribal Policy Group Ad hoc Tribal and Washington Technical Group Ad hoc Day 7—Thursday, April 14, 2016 California State Delegation 7 a.m. Oregon State Delegation 7 a.m. Washington State Delegation 7 a.m.

    Although non-emergency issues not contained in this agenda may come before this Council for discussion, those issues may not be the subject of formal Council action during this meeting. Council action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the Council's intent to take final action to address the emergency.

    Special Accommodations

    These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Kris Kleinschmidt at (503) 820-2280 at least 5 days prior to the meeting date.

    Dated: March 16, 2016. Tracey L. Thompson, Acting Deputy Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2016-06282 Filed 3-18-16; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XE508 North Pacific Fishery Management Council; Public Meeting AGENCY:

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

    ACTION:

    Notice of public meetings.

    SUMMARY:

    The North Pacific Fishery Management Council (Council) and its advisory committees will meet in Anchorage, AK.

    DATES:

    The meetings will be held April 4, 2016 through April 12, 2016. See SUPPLEMENTARY INFORMATION for specific dates and times.

    ADDRESSES:

    The meetings will be held at the Anchorage Hilton Hotel, 500 W. 3rd Ave., Anchorage, AK 99501. The Ecosystem Committee will meet in the Old Federal Bldg., 605 W. 4th Ave., Room 205, Anchorage, AK 99501.

    Council address: North Pacific Fishery Management Council, 605 W. 4th Ave., Suite 306, Anchorage, AK 99501-2252; telephone: (907) 271-2809.

    FOR FURTHER INFORMATION CONTACT:

    David Witherell, Council staff; telephone: (907) 271-2809.

    SUPPLEMENTARY INFORMATION:

    The Council will begin its plenary session at 8 a.m. in the Aleutian Room on Wednesday, April 6, continuing through Tuesday, April 12, 2016. The Scientific and Statistical Committee (SSC) will begin at 8 a.m. in the King Salmon/Iliamna Room on Monday, April 4 and continue through Wednesday, April 6, 2016. The Council's Advisory Panel (AP) will begin at 8 a.m. in the Dillingham/Katmai Room on Tuesday, April 5, and continue through Saturday April 9, 2016. The Recreational Quota Entity Committee (RQE) will meet on Tuesday, April 5, 2016 (room and time to be determined). The Ecosystem Committee will meet on Monday, April 4, 2016, from 9:30 a.m. to 5 p.m. The Legislative Committee will tentatively meet on Tuesday, April 5, 2016 (room and time to be determined). The Halibut Management Committee will tentatively meet on Monday, April 4, 2016, from 1 p.m. to 5 p.m. (room to be determined).

    Agenda Monday, April 4, 2016 Through Tuesday, April 12, 2016

    Council Plenary Session: The agenda for the Council's plenary session will include the following issues. The Council may take appropriate action on any of the issues identified.

    1. Executive Director's Report 2. NMFS Management Report (including report on fishery overlap with Pribilof corals) 3. ADF&G Report 4. USCG Report 5. USFWS Report 6. Protected Species Report 7. NIOSH Report 8. Scallop SAFE and catch limits: Plan team report; set OFL/ABC limits 9. Co-op reports (AFA, AM 80, GOA Rockfish, BSAI Crab including PNCIAC report) 10. Pollock ICA/IPA reports and SeaShare update (T) 11. Salmon genetics data update and spatial/temporal refinement: Discussion paper 12. AI groundfish offshore sector: Discussion paper on limited access and Pacific cod A/B season split 13. BSAI Halibut Abundance-Based PSC Limit: Discussion paper 14. Halibut DMR methodology: Discussion paper 15. Halibut Management: Receive Committee report; update on Framework; update on MSE process (MSE Council only) 16. Charter Halibut RQE: Initial Review 17. EFH 5-Year Review: Review Draft Report; Ecosystem Committee report 18. Groundfish Policy and Workplan: Review management objectives 19. Staff Tasking

    The Advisory Panel will address most of the same agenda issues as the Council except B reports.

    The SSC agenda will include the following issues:

    1. Scallop SAFE and catch limits: Plan team report; set OFL/ABC limits 2. BSAI Halibut Abundance-Based PSC Limit: Discussion paper 3. Halibut DMR methodology: Discussion paper 4. Charter Halibut RQE: Initial Review 5. EFH 5-Year Review: Review Draft Report; Ecosystem Committee report 6. Salmon genetics data update and spatial/temporal refinement: Discussion paper

    In addition to providing ongoing scientific advice for fishery management decisions, the SSC functions as the Council's primary peer review panel for scientific information as described by the Magnuson-Stevens Act section 302(g)(1)(e), and the National Standard 2 guidelines (78 FR 43066). The peer review process is also deemed to satisfy the requirements of the Information Quality Act, including the OMB Peer Review Bulletin guidelines.

    The Agenda is subject to change, and the latest version will be posted at http://www.npfmc.org/.

    Although non-emergency issues not contained in this agenda may come before these groups for discussion, those issues may not be the subject of formal action during these meetings. Action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Act, provided the public has been notified of the Council's intent to take final action to address the emergency.

    Special Accommodations

    These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Shannon Gleason at (907) 271-2809 at least 7 working days prior to the meeting date.

    Dated: March 15, 2016. Jeffrey N. Lonergan, Acting Deputy Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2016-06217 Filed 3-18-16; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XE513 Mid-Atlantic Fishery Management Council (MAFMC); Public Meetings AGENCY:

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

    ACTION:

    Notice of a public meeting.

    SUMMARY:

    The Mid-Atlantic Fishery Management Council's (Council) Atlantic Mackerel, Squid, and Butterfish Advisory Panel and the Council's River Herring and Shad Advisory Panel will hold a public meeting.

    DATES:

    The meeting will be held Wednesday, April 6, 2016, from 1:30 p.m. until 4:30 p.m.

    ADDRESSES:

    The meeting will be held via webinar with a telephone-only connection option.

    Council address: Mid-Atlantic Fishery Management Council, 800 N. State St., Suite 201, Dover, DE 19901; telephone: (302) 674-2331.

    FOR FURTHER INFORMATION CONTACT:

    Christopher M. Moore, Ph.D. Executive Director, Mid-Atlantic Fishery Management Council; telephone: (302) 526-5255. The Council's Web site, www.mafmc.org also has details on the proposed agenda, webinar access, and briefing materials.

    SUPPLEMENTARY INFORMATION:

    This meeting will gather input on the Industry-Funded Monitoring Omnibus Amendment, especially the options for additional coverage for the Atlantic mackerel fishery. The Council plans to approve preliminary preferred alternatives at its April 2016 meeting, followed by public hearings in May 2016, and final action in June 2016. See http://www.mafmc.org/actions/observer-funding-omnibus for details on the Amendment.

    Although non-emergency issues not contained in this agenda may come before this group for discussion, in accordance with the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), those issues may not be the subject of formal action during these meetings.

    Special Accommodations

    The meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aid should be directed to M. Jan Saunders, (302) 526-5251, at least 5 days prior to the meeting date.

    Dated: March 16, 2016. Tracey L. Thompson, Acting Deputy Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2016-06281 Filed 3-18-16; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XE510 New England Fishery Management Council; Public Meeting AGENCY:

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

    ACTION:

    Notice; public meeting.

    SUMMARY:

    The New England Fishery Management Council (Council) is scheduling a public meeting of its Groundfish Committee to consider actions affecting New England fisheries in the exclusive economic zone (EEZ). Recommendations from this group will be brought to the full Council for formal consideration and action, if appropriate.

    DATES:

    This meeting will be held on Thursday, April 7, 2016 at 9 a.m.

    ADDRESSES:

    The meeting will be held at the Hilton Garden Inn, 100 Boardman Street, Boston, MA 02128; phone: (617) 567-6789; fax: (617) 461-0798.

    Council address: New England Fishery Management Council, 50 Water Street, Mill 2, Newburyport, MA 01950.

    FOR FURTHER INFORMATION CONTACT:

    Thomas A. Nies, Executive Director, New England Fishery Management Council; telephone: (978) 465-0492.

    SUPPLEMENTARY INFORMATION: Agenda

    The committee plans to discuss the groundfish monitoring program and will discuss PDT analysis with respect to the groundfish monitoring program, to assess whether: CV requirements and methodologies are the most appropriate to verify area fished, catch and discards by species and gear type for the sector system, and; ASM provides the sector fishery, recognizing heterogeneity within the fleet (e.g., trip length, homeport, etc.), the maximum flexibility to meet ASM goals and objectives. They will also develop committee recommendations to the Council on the possible alternatives for a monitoring action. The committee also plans to discuss windowpane flounder management alternatives and will receive an update on the development of a Council staff white paper examining the windowpane flounder issue. They will also develop committee recommendations on next steps for the white paper. The committee will discuss the recreational management measures process and receive an update on the development of a Council staff white paper examining the recreational management measures process issue. They will also develop committee recommendations on next steps for the white paper. Other business will be discussed as necessary.

    Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Act, provided the public has been notified of the Council's intent to take final action to address the emergency.

    Special Accommodations

    This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Thomas A. Nies, Executive Director, at (978) 465-0492, at least 5 days prior to the meeting date.

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: March 16, 2016. Tracey L. Thompson, Acting Deputy Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2016-06280 Filed 3-18-16; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XE251 Takes of Marine Mammals Incidental To Specified Activities; Taking Marine Mammals Incidental To Implementation of a Test Pile Program in Anchorage, Alaska AGENCY:

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

    ACTION:

    Notice; issuance of an incidental harassment authorization.

    SUMMARY:

    In accordance with the regulations implementing the Marine Mammal Protection Act (MMPA) as amended, notification is hereby given that we have issued an incidental harassment authorization (IHA) to the Municipality of Anchorage (MOA) Port of Anchorage (POA) to incidentally harass four species of marine mammals during activities related to the implementation of a Test Pile Program, including geotechnical characterization of pile driving sites, near its existing facility in Anchorage, Alaska.

    DATES:

    This authorization is effective from April 1, 2016, through March 31, 2017.

    FOR FURTHER INFORMATION CONTACT:

    Robert Pauline, Office of Protected Resources, NMFS, (301) 427-8401.

    SUPPLEMENTARY INFORMATION: Availability

    An electronic copy of POA's application and supporting documents, as well as a list of the references cited in this document, may be obtained by visiting the Internet at: www.nmfs.noaa.gov/pr/permits/incidental/construction.htm. In case of problems accessing these documents, please call the contact listed above (see FOR FURTHER INFORMATION CONTACT).

    Background

    Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) direct the Secretary of Commerce to allow, upon request, the incidental, but not intentional, taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if certain findings are made and either regulations are issued or, if the taking is limited to harassment, a notice of a proposed authorization is provided to the public for review.

    Authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant), and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such takings are set forth. NMFS has defined “negligible impact” in 50 CFR 216.103 as “an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.”

    Section 101(a)(5)(D) of the MMPA established an expedited process by which citizens of the U.S. can apply for an authorization to incidentally take small numbers of marine mammals by harassment. Section 101(a)(5)(D) establishes a 45-day time limit for NMFS' review of an application followed by a 30-day public notice and comment period on any proposed authorization for the incidental harassment of marine mammals. Within 45 days of the close of the comment period, NMFS must either issue or deny the authorization. Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as “any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild [Level A harassment]; or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering [Level B harassment].”

    Summary of Request

    On February 15, 2015, NMFS received an application from POA for the taking of marine mammals incidental to conducting a Test Pile Program as part of the Anchorage Port Modernization Project (APMP). POA submitted a revised application on November 23, 2015. NMFS determined that the application was adequate and complete on November 30, 2015. POA proposes to install a total of 10 test piles as part of a Test Pile Program to support the design of the Anchorage Port Modernization Project (APMP) in Anchorage, Alaska. The Test Pile Program will also be integrated with a hydroacoustic monitoring program to obtain data that can be used to evaluate potential environmental impacts and meet future permit requirements. All pile driving is expected to be completed by July 1, 2016. However, to accommodate unexpected project delays and other unforeseeable circumstances, the requested and proposed IHA period for the Test Pile Program is for the 1-year period from April 1, 2016, to March 31, 2017. Subsequent incidental take authorizations will be required to cover pile driving under actual construction associated with the APMP.

    The use of vibratory and impact pile driving is expected to produce underwater sound at levels that have the potential to result in behavioral harassment of marine mammals. Species with the expected potential to be present during the project timeframe include harbor seals (Phoca vitulina), Cook Inlet beluga whales (Delphinapterus leucas), and harbor porpoises (Phocoena phocoena). Species that may be encountered infrequently or rarely within the project area are killer whales (Orcinus orca) and Steller sea lions (Eumetopias jubatus).

    Description of the Specified Activity Overview

    We provided a description of the proposed action in our Federal Register notice announcing the proposed authorization (80 FR 78176; December 16, 2015). Please refer to that document; we provide only summary information here.

    The POA is modernizing its facilities through the APMP. Located within the MOA on Knik Arm in upper Cook Inlet (See Figure 1-1 in the Application), the existing 129-acre Port facility is currently operating at or above sustainable practicable capacity for the various types of cargo handled at the facility. The existing infrastructure and support facilities were largely constructed in the 1960s. They are substantially past their design life, have degraded to levels of marginal safety, and are in many cases functionally obsolete, especially in regards to seismic design criteria and condition. The APMP will include construction of new pile-supported wharves and trestles to the south and west of the existing terminals, with a planned design life of 75 years.

    An initial step in the APMP is implementation of a Test Pile Program, the specified activity for this IHA. The POA proposes to install a total of 10 test piles at the POA as part of a Test Pile Program to support the design of the APMP. The Test Pile Program will also be integrated with a hydroacoustic monitoring program to obtain data that can be used to evaluate potential environmental impacts and meet future permit requirements. Proposed Test Pile Program activities with potential to affect marine mammals within the waterways adjacent to the POA include vibratory and impact pile-driving operations in the project area.

    Dates and Duration

    In-water work associated with the APMP Test Pile Program will begin no sooner than April 1, 2016, and will be completed no later than March 31, 2017 (1 year following IHA issuance), but is expected to be completed by July 1, 2016. Pile driving is expected to take place over 25 days and include 5 hours of vibratory driving and 17 hours of impact driving as is shown in Table 1. A 25 percent contingency has been added to account for delays due to weather or marine mammal shut-downs resulting in an estimated 6 hours of vibratory driving and 21 hours of impact driving over 31 days of installation. Restriking of some of the piles will occur two to three weeks following installation. Approximately 25 percent of pile driving will be conducted via vibratory installation, while the remaining 75 percent of pile driving will be conducted with impact hammers. Although each indicator pile test can be conducted in less than 2 hours, mobilization and setup of the barge at the test site will require 1 to 2 days per location and could be longer depending on terminal use. Additional time will be required for installation of sound attenuation measures, and for subsequent noise-mitigation monitoring. Hydroacoustic monitoring and installation of resonance-based systems or bubble curtains will likely increase the time required to install specific indicator pile from a few hours to a day or more.

    Within any day, the number of hours of pile driving will vary, but will generally be low. The number of hours required to set a pile initially using vibratory methods is about 30 minutes per pile, and the number of hours of impact driving per pile is about 1.5 hours. Vibratory driving for each test pile will occur on ten separate days. Impact driving could occur on any of the 31 days depending on a number of factors including weather delays and unanticipated scheduling issues. On some days, pile driving may occur only for an hour or less as bubble curtains and the containment frames are set up and implemented, resonance-based systems are installed, hydrophones are placed, pipe segments are welded, and other logistical requirements are handled.

    Table 1—Conceptual Project Schedule for Test Pile Driving, Including Estimated Number of Hours and Days for Pile Driving Month Pile type Pile
  • diameter
  • Number of
  • piles
  • Number of
  • hours,
  • vibratory
  • driving
  • Number of
  • hours,
  • impact
  • driving
  • Number of
  • days of
  • pile driving
  • Number of
  • days of
  • restrikes
  • Total
  • number of
  • days of
  • pile driving
  • April-July 2016 Steel pipe 48″ OD 10 5 17 21 4 25. + 25% contingency = 6 hours 21 hours 26 days 5 days 31 days. Notes: OD—outside diameter.
    Specific Geographic Region

    The Municipality of Anchorage (MOA) is located in the lower reaches of Knik Arm of upper Cook Inlet. The POA sits in the industrial waterfront of Anchorage, just south of Cairn Point and north of Ship Creek (Latitude 61°15′ N., Longitude 149°52′ W.; Seward Meridian). Knik Arm and Turnagain Arm are the two branches of upper Cook Inlet and Anchorage is located where the two Arms join (Figure 2-1 in the Application).

    Comments and Responses

    A notice of NMFS' proposal to issue an IHA was published in the Federal Register on December 16, 2015 (80 FR 78176). During the 30-day public comment period, the Marine Mammal Commission (Commission) and Friends of Animals (FoA) each submitted letters. The Center for Biological Diversity (CBD) and The Humane Society of the U.S. (HSUS) submitted comments jointly. The letters are available at www.nmfs.noaa.gov/pr/permits/incidental/construction.htm. NMFS' responses to submitted comments are contained below.

    Comment 1: The Commission, FoA, and CBD/HSUS recommended that NMFS defer issuance of incidental take authorizations and regulations until it has better information on the cause or causes of the ongoing decline of beluga whales and has a reasonable basis for determining that authorizing takes by behavioral harassment would not contribute to further decline.

    Response: In accordance with our implementing regulations at 50 CFR 216.104(c), NMFS uses the best available scientific information to determine whether the taking by the specified activity within the specified geographic region will have a negligible impact on the species or stock and will not have an unmitigable adverse impact on the availability of such species or stock for subsistence uses. Based on currently available scientific evidence, NMFS determined that the impacts of the Test Pile Program would meet these standards. Moreover, POA proposed and NMFS required a comprehensive mitigation plan to reduce impacts to Cook Inlet beluga whales and other marine mammals to the lowest level practicable.

    Our analysis utilizing best available information indicates that issuance of this IHA is not expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival. The ESA Biological Opinion determined that the issuance of an IHA is not likely to jeopardize the continued existence of the Cook Inlet beluga whales or destroy or adversely modify Cook Inlet beluga whale critical habitat. Based on the analysis of potential effects and the conservative mitigation and monitoring program, NMFS determined that the activity would have a negligible impact on the population.

    As additional research is conducted to determine the impact of various stressors on the Cook Inlet beluga whale population, NMFS will incorporate any findings into future negligible impact analyses associated with incidental take authorizations.

    Comment 2: The Commission recommended that NMFS develop a policy that sets forth clear criteria and/or thresholds for determining what constitutes small numbers and negligible impact for the purpose of authorizing incidental takes of marine mammals.

    Response: NMFS is in the process of developing both a clearer policy to outline the criteria for determining what constitutes “small numbers” and constructing an improved analytical framework for determining whether an activity will have a “negligible impact” for the purpose of authorizing takes of marine mammals. We fully intend to engage the MMC in these processes at the appropriate time.

    Comment 3: The Commission recommended that NMFS draft and finalize its programmatic environmental impact statement (PEIS) on the issuance of incidental take authorizations in Cook Inlet and establish annual limits on the total number and types of takes that are authorized for sound-producing activities in Cook Inlet. FoA wrote that NMFS should prepare an environmental impact statement before issuing any IHAs.

    Response: NMFS published a Federal Register Notice of Intent to Prepare a programmatic EIS for Cook Inlet (79 FR 61616; October 14, 2014). We are continuing the process of developing the PEIS and will consider the potential authorization of take incidental to sound producing activities. The PEIS is meant to address hypothetical increasing future levels of activity in Cook Inlet which, cumulatively, may have a significant impact on the human environment. In the interim, NMFS is evaluating each activity individually, taking into consideration cumulative impacts, with an EA, to determine if the action under consideration can support a Finding of No Significant Impact (FONSI). For this IHA, NMFS determined that the Test Pile Program will not have a significant impact on the human environment, as specified in its FONSI.

    Comment 4: The Commission recommended that NMFS adopt a consistent approach when determining the potential number of takes of beluga whales in Cook Inlet for future incidental take authorization applications regarding sound-producing activities.

    Response: While NMFS strives for consistency where appropriate, it is important to note that there are a number of acceptable methodologies that can be employed to estimate take. Some methodologies may be more or less suitable depending upon the type, duration, and location of a given project. Furthermore, there may be available data that are applicable only within a localized area and not across the entirety of Cook Inlet. As such, NMFS makes determinations about the best available information, including the most appropriate methodologies to generate take estimates, on an action-specific basis.

    Comment 5: The Commission recommended that NMFS require POA to implement delay and shut-down procedures if a single beluga or five or more harbor porpoises or killer whales are observed approaching or within the Level B harassment zones for impact and vibratory pile driving, as has been done under recent IHAs that involved the use of airguns and sub-bottom profilers for seismic surveys, or provide sufficient justification regarding why implementation of those procedures is not necessary for the proposed activities.

    Response: NMFS, after engaging in consultation under section 7 of the ESA, has modified the Level B harassment shutdown requirement that was in the proposed IHA. Rather than shutdown for groups of five or more belugas or calves observed within or approaching the maximum potential Level B harassment zones (1,359 m and 3,981 m for impact and vibratory pile driving, respectively), the IHA will require a more stringent shutdown measure. POA must shut-down upon observation of a single beluga whale within or approaching the maximum potential Level B harassment zones when driving unattenuated piles, and within a modified zone when piles are driven using sound attenuation systems. See “Mitigation” for more details of this shutdown requirement.

    As described in the notice of proposed authorization, NMFS will not require POA to shut down if five or more harbor porpoises or killer whales are observed approaching or within the Level B harassment zones for impact and vibratory pile driving. The assumed benefit of such a measure is not well understood, and shutting down during these rare occurrences risks seizing of the pile, in which the pile becomes stuck in the substrate. This may result in loss of 10% of the total data from the Test Pile Program and 100% of the data from the seized pile, which would greatly reduce the Program's usefulness. Depending on which pile seized it could represent complete data loss for a certain sound attenuation treatment type (i.e. encapsulated bubble curtain and adBM resonance system). Since this data will be helpful to both POA and NMFS in the future to help assess impacts of future actions and inform development of mitigation that could have conservation value, NMFS does not want to risk losing this potentially valuable data.

    Comment 6: FoA commented that NMFS is in violation of the Marine Mammal Protection Act (MMPA) since that FoA believes large numbers of beluga whales will be harassed and that significant non-negligible impacts to whales will occur. CBD/HSUS commented that the small numbers analysis and negligible impact determination were deficient.

    Response: NMFS utilized the best available scientific evidence to determine whether the taking by the specified activity will have a negligible impact on the species or stock. NMFS determined that the impacts of the Test Pile Program would meet these standards. See the Analysis and Determinations section on Negligible Impact Analysis later in this Notice. Similarly, the Biological Opinion determined that the issuance of an IHA is not likely to jeopardize the continued existence of the Cook Inlet beluga whales or destroy or adversely modify Cook Inlet beluga whale critical habitat. Moreover, NMFS has required as part of the IHA a rigorous mitigation plan to reduce potential impacts to Cook Inlet beluga whales and other marine mammals to the lowest level practicable.

    Finally, we determined the Test Pile Program would take only small numbers of marine mammals relative to their population sizes. The number of belugas likely to be taken represents less than ten percent of the population. Some of these takes may represent single individuals experiencing multiple takes. In addition to this quantitative evaluation, NMFS has also considered the seasonal distribution and habitat use patterns of Cook Inlet beluga whales and rigorous mitigation requirements to determine that the number of beluga whales likely to be taken is small. See the Analyses and Determinations section later in this document for more information about the negligible impact and small numbers determinations for beluga whales and other marine mammal species for which take has been authorized.

    Comment 7: FoA and CBD/HSUS noted that the proposed activities would impact beluga habitat which is considered Type 1 or high value/high sensitivity habitat. FoA is also concerned that if pile driving is not completed by July of 2016, the project's activities could overlap with the time period with the largest annual beluga presence.

    Response: The section on Anticipated Effects on Habitat found later in this notice describes in detail how the ensonified area during the Test Pile Program represents less than 1% of designated critical habitat in Area 1. Furthermore, the POA and adjacent navigation channel were excluded from critical habitat designation due to national security reasons (76 FR 20180, April 11, 2011).

    Although POA has requested that a one-year authorization period running from April 1, 2016 through March 31, 2017, POA intends to complete all Test Pile Program activities prior to July 1, 2016. If the Program extends beyond that date, note that NMFS' analysis and determination of authorized take levels are conservative in that they are based on the density of beluga whales during the summer months when concentrations are higher. Even though POA plans to start in spring and finish early summer, should pile driving extend past July 1, the take estimates presented here would likely be conservative. Therefore, continuation of planned pile driving beyond July 1, 2016 would not affect our determinations.

    Comment 8: NMFS stated that no apparent behavioral changes have been observed when belugas were sighted near construction activities including pile driving and dredging in Cook Inlet. As such, CBD/HSUS urged NMFS to obtain data on behavioral modifications in order to properly conduct its negligible impact determination. Furthermore, FoA noted that any effects may not always be visible to the naked eye or visible at all (e.g., internal injury). FoA stated that NMFS has not adequately accounted for the high mobility of beluga whales or unpredictability of being able to adequately observe these animals when the agency evaluated POA's request for an IHA and its mitigation and monitoring measures. FoA recommends that NMFS should do so before proceeding in making its decision.

    Response: Available data describing behavioral impacts associated with marine noise is limited in several ways according to Southall et al. 2007. Insufficient data exist to support criteria other than those based on SPL alone, and this metric fails to account for the duration of exposure beyond the difference between pulse and non-pulse sounds. Additionally, there is much variability in responses among species of the same functional hearing group and also within species. Because of the influences of numerous variables, behavioral responses are difficult to predict given present information. Furthermore, any biological significance of an observed behavioral response is extremely difficult to assess (NRC, 2005). Additional research is needed to quantify behavioral reactions of a greater number of free-ranging marine mammal species to specific exposures from different human sound sources. This is an area of increasing interest and as new data becomes available NMFS will incorporate this information into future assessments.

    NMFS also understands that observing every beluga whale that enters into the zones of influence may not be possible given the large size of the maximum potential vibratory pile driving Level B harassment zone (3,981 m). However, piles driven using sound attenuation systems are expected to have much smaller Level B harassment zones (approximately 300-900 m; see “Mitigation” for further detail). Additionally, POA will employ a robust monitoring program which will include marine mammal observers (MMOs) in an elevated platform and personnel on hydroacoustic monitoring vessels. MMOs will have been trained in identifying changes in behavior that may occur due to exposure to pile driving activities. Furthermore, Level A harassment (injury) is not anticipated to occur due to the shutdown protocols required of POA. Given this information NMFS is confident POA can reliably monitor beluga whales in the zones of influence and identify and record behavioral impacts.

    Comment 9: FoA noted that anthropogenic noises can result in masking hindering the ability of whales to communicate. FoA also noted that anthropogenic activities can result in noise that can provoke temporary threshold shift (TTS) or permanent threshold shift (PTS) while NMFS stated in the proposed authorization that no marine mammals have been shown to experience TTS or PTS as a result of pile driving activities.

    Response: NMFS acknowledged in the proposed Federal Register notice that masking may occur due to anthropogenic sounds occurring in frequency ranges utilized by beluga whales. NMFS, however, believes that the short-term duration and limited affected area would not result in significant impacts from masking. NMFS wrote that although no marine mammals have been shown to experience TTS or PTS as a result of being exposed to pile driving activities, captive bottlenose dolphins and beluga whales exhibited changes in behavior when exposed to strong pulsed sounds (Finneran et al., 2000, 2002, 2005). The animals tolerated high received levels of sound before exhibiting aversive behaviors. Experiments on a beluga whale showed that exposure to a single watergun impulse at a received level of 207 kPa (30 psi), which is equivalent to 228 dB, resulted in a 7 and 6 dB TTS in the beluga whale at 0.4 and 30 kHz, respectively. Thresholds returned to within 2 dB of the pre-exposure level within four minutes of the exposure (Finneran et al., 2002). Although the source level of pile driving from one hammer strike is expected to be much lower than the single watergun impulse cited here, animals exposed for a prolonged period to repeated hammer strikes could receive more sound exposure in terms of SEL than from the single watergun impulse (estimated at 188 dB re 1 μPa2-s) in the aforementioned experiment (Finneran et al., 2002). However, in order for marine mammals to experience TTS or PTS, the animals have to be close enough to be exposed to high intensity sound levels for a prolonged period of time. Based on the best scientific information available, NMFS finds that with mitigation protocols in place, including a 100 meter shut-down zone, sound pressure levels (SPLs) that marine mammals might reasonably be anticipated to experience as part of the Test Pile Program are below the thresholds that could result in TTS or the onset of PTS.

    Comment 10: FoA noted that NMFS did not evaluate cumulative impacts as part of its analysis. CBD/HSUS also urged NMFS to conduct an analysis of cumulative effects of construction and operation of the Anchorage Port Modernization Project (APMP).

    Response: Neither the MMPA nor NMFS' implementing regulations specify how to consider other activities and their impacts on the same populations when conducting a negligible impact analysis. However, consistent with the 1989 preamble for NMFS' implementing regulations (54 FR 40338, September 29, 1989), the impacts from other past and ongoing anthropogenic activities are incorporated into the negligible impact analysis via their impacts on the environmental baseline (e.g., as reflected in the density/distribution and status of the species, population size and growth rate, and ambient noise).

    In addition, cumulative effects were addressed in the EA and Biological Opinion prepared for this action. The APMP is specifically considered in the cumulative effects section of the EA. These documents, as well as the Alaska Marine Stock Assessments and the most recent abundance estimate for Cook Inlet beluga whales (Shelden et al., 2015) are part of NMFS' Administrative Record for this action, and provided the decision maker with information regarding other activities in the action area that affect marine mammals, an analysis of cumulative impacts, and other information relevant to the determination made under the MMPA.

    Comment 11: FoA commented that issuing the IHA would violate the Endangered Species Act as a permit (IHA) cannot be issued if taking will appreciably reduce the likelihood of survival and recovery of the species in the wild. Additionally, FoA believes that mitigation of noise and other impacts do not go far enough to fully protect the Cook Inlet beluga whales from the many threats facing them.

    Response: NMFS' Biological Opinion concluded that the issuance of an IHA is not likely to jeopardize the continued existence of the Cook Inlet beluga whales or destroy or adversely modify Cook Inlet beluga whale critical habitat. NMFS has revised its IHA requirements to require shutdown upon observation of one beluga whale within or approaching the area expected to contain sound exceeding NMFS' criteria for Level B harassment. See response to comment #8. NMFS acknowledges the difficulties of monitoring in the field, particularly at long distances. However, NMFS believes the required mitigation and related monitoring satisfy the requirements of the MMPA.

    Comment 12: FoA stated that issuing the IHA would violate NEPA as NMFS did not prepare an EIS.

    Response: The purpose of an EA is to evaluate the environmental impacts of an action and determine if a proposed action or its alternatives have potentially significant environmental effects. The EA process concludes with either a Finding of No Significant Impact or a determination to prepare an Environmental Impact Statement. NMFS issued a Finding of No Significant Impact (FONSI) detailing the reasons why the agency has determined that the action will have no significant impacts.

    Comment 13: FoA commented that NMFS must include a discussion of ethics and the rights of wildlife when assessing the potential harassment of marine life.

    Response: NMFS' does not have authority under section 101(a)(5)(D) of the MMPA to consider these issues in making a decision. As enacted by Congress, our only authority under that provision is to evaluate the specified activity to determine if it will have a negligible impact on the affected species or stocks and no unmitigable adverse impact on marine mammal availability for relevant subsistence uses. If those standards are met and the expected take is limited to small numbers of marine mammals, NMFS must issue an IHA that contains the required mitigation, monitoring, and reporting requirements.

    Comment 14: CBD/HSUS recommended that NMFS issue and finalize a draft recovery plan as is required under the Endangered Species Act (ESA) and not issue an IHA until this has occurred.

    Response: The Cook Inlet Beluga Whale Recovery Plan is currently under development and NMFS is working towards its completion. A final recovery plan is not required for issuance of the IHA.

    Comment 15: CBD/HSUS urged NMFS not to issue an IHA until the agency adopts a comprehensive monitoring plan.

    Response: The commenter did not explain what it meant by “comprehensive monitoring plan.” However, NMFS has conducted aerial monitoring surveys of beluga whales in Cook Inlet on an annual basis since 1993 and this monitoring is likely to continue in the foreseeable future. Furthermore, an important component of the Draft Cook Inlet Beluga Whale Recovery Plan includes comprehensive population monitoring. Under the draft recovery plan, NMFS would continue to conduct aerial and photo-identification surveys to estimate abundance, and analyze population trends, calving rates, and distribution.

    Comment 16: CBD/HSUS argue that NMFS improperly estimated take by using data from only summer months when the IHA is authorized for a one-year period. CBD/HSUS also allege that NMFS underestimated the size of the group factor which was included in the final take estimation.

    Response: The predictive beluga habitat model described in Goetz et al. 2012 was used by POA and NMFS to estimate density. This is considered to be the best information available, and incorporates National Marine Mammal Laboratory data collected during the months of June and July between 1994 and 2008. There is no data of similar quality available for the spring and early summer time frame. The authorized take estimates for the Test Pile Program were based on the assumption that pile-driving operations would take place between April 1 and July 1, 2016 and that beluga density outside the June-July period would be lower. Therefore, NMFS considers the use of the Goetz et al. 2012 summer data to estimate take for the April 1 through July 1 period to be conservative and appropriate.

    The section on Estimated Take by Incidental Harassment later in this document explains why the density data used for estimating potential beluga exposures does not fully reflect the nature of local beluga occurrence and also provides a statistically defensible justification for the size of the large group factor which was selected by NMFS. Note that while larger groups of beluga whales have frequently been observed in Cook Inlet, NMFS' finding is based on groups that were actually observed near POA.

    Comment 17: CBD/HSUS stated that it is inappropriate for NMFS to use the current, outdated, generic sound thresholds of 180 dB and 160/120dB levels (impact/non-impact) as thresholds for Level A and Level B harassment when it has already developed a more appropriate method. As such, the agency should not issue IHAs until it has completed its revision of acoustic thresholds for Level B take.

    Response: NMFS currently uses 160 dB root mean square (rms) as the exposure level for estimating Level B harassment takes from impulse sounds for most species in most cases. This threshold was established for underwater impulse sound sources based on measured avoidance responses observed in whales in the wild. Specifically, the 160 dB threshold was derived from data for mother-calf pairs of migrating gray whales (Malme et al., 1983, 1984) and bowhead whales (Richardson et al., 1985, 1986) responding to seismic airguns (e.g., impulsive sound source). We acknowledge there is more recent information bearing on behavioral reactions to seismic airguns, but those data only illustrate how complex and context-dependent the relationship is between the two. The 120 dB re 1µPa (rms) threshold for noise originates from research on baleen whales, specifically migrating gray whales (Malme et al. 1984; predicted 50% probability of avoidance) and bowhead whales reacting when exposed to industrial (i.e., drilling and dredging) activities (non-impulsive sound source) (Richardson et al. 1990). NMFS is working to develop guidance to help determine Level B harassment thresholds. Note, however, it is not a matter of merely replacing the existing threshold with a new one. Due to the complexity of the task, any guidance will require a rigorous review that includes internal agency review, public notice and comment, and additional external peer review before any final product is published. In the meantime, and taking into consideration the facts and available science, NMFS determined it is reasonable to use the 160 dB threshold for impact sources for estimating takes of marine mammals in Cook Inlet by Level B harassment and the 120 dB threshold for vibratory sources.

    With regard to injury, NMFS is developing Guidance for Assessing the Effects of Anthropogenic Sound on Marine Mammal Hearing. Specifically, it will identify the received levels, or acoustic thresholds, above which individual marine mammals are predicted to experience changes in their hearing sensitivity (either temporary or permanent) for acute exposure to underwater anthropogenic sound sources. That Guidance is undergoing an extensive process involving peer review and public comment, and is expected to be finalized sometime in 2016. See 80 FR 45642 (July 31, 2015).

    Description of Marine Mammals in the Area of the Specified Activity

    There are five marine mammal species known to occur in the vicinity of the project area. These are the Cook Inlet beluga whale, killer whale, Steller sea lion, harbor porpoise, and harbor seal.

    We reviewed POA's detailed species descriptions, including life history information, for accuracy and completeness and refer the reader to Section 3 of POA's application as well as our notice of proposed IHA published in the Federal Register (80 FR 78176; December 16, 2015) instead of reprinting the information here. Please also refer to NMFS' Web site (www.nmfs.noaa.gov/pr/species/mammals) for generalized species accounts which provide information regarding the biology and behavior of the marine resources that occur in the vicinity of the project area.

    Table 2 lists marine mammal stocks that could occur in the vicinity of the project that may be subject to harassment and summarizes key information regarding stock status and abundance. Please see NMFS' Stock Assessment Reports (SAR), available at www.nmfs.noaa.gov/pr/sars, for more detailed accounts of these stocks' status and abundance.

    Table 2—Marine Mammals in the Project Area Species or DPS * Abundance Comments Cook Inlet beluga whale (Delphinapterus leucas) 312 a Occurs in the project area. Listed as Depleted under the MMPA, Endangered under ESA. Killer (Orca) whale (Orcinus orca) 2,347 Resident 587 Transientb Occurs rarely in the project area. No special status or ESA listing. Harbor porpoise (Phocoena phocoena) 31,046 c Occurs occasionally in the project area. No special status or ESA listing. Harbor seal (Phoca vitulina) 27,386 d Occurs in the project area. No special status or ESA listing. Steller sea lion (Eumetopias jubatus) 49,497 e Occurs rarely within the project area. Listed as Depleted under the MMPA, Endangered under ESA. * DPS refers to distinct population segment under the ESA, and is treated as a species. a Abundance estimate for the Cook Inlet stock. Allen and Angliss, 2015; Shelden et al., 2015. b Abundance estimate for the Eastern North Pacific Alaska Resident stock; the estimate for the transient population is for the Gulf of Alaska, Aleutian Islands, and Bering Sea stock. c Abundance estimate for the Gulf of Alaska stock. d Abundance estimate for the Cook Inlet/Shelikof stock. e Abundance estimate for the Western U.S. Stock. Sources for populations estimates other than Cook inlet beluga whales: Allen and Angliss 2013, 2014, 2015. Potential Effects of the Specified Activity on Marine Mammals

    The Federal Register notice of proposed authorization (80 FR 78176; December 16, 2015) provides a general background on sound relevant to the specified activity as well as a detailed description of marine mammal hearing and of the potential effects of these construction activities on marine mammals, and is not repeated here.

    Anticipated Effects on Habitat

    We described potential impacts to marine mammal habitat in detail in our Federal Register notice of proposed authorization. The proposed Test Pile Program will not result in permanent impacts to habitats used by marine mammals. Pile installation may temporarily increase turbidity resulting from suspended sediments. Any increases would be temporary, localized, and minimal. POA must comply with state water quality standards during these operations by limiting the extent of turbidity to the immediate project area. In general, turbidity associated with pile installation is localized to about a 25-foot radius around the pile (Everitt et al. 1980). Cetaceans are not expected to be close enough to the project site driving areas to experience effects of turbidity, and any pinnipeds will be transiting the terminal area and could avoid localized areas of turbidity. Therefore, the impact from increased turbidity levels is expected to be discountable to marine mammals. The proposed Test Pile Program will result in temporary changes in the acoustic environment. Marine mammals may experience a temporary loss of habitat because of temporarily elevated noise levels. The most likely impact to marine mammal habitat would be minor impacts to the immediate substrate during installation of piles during the proposed Test Pile Program. The Cook Inlet beluga whale is the only marine mammal species in the project area that has critical habitat designated in Cook Inlet. NMFS has characterized the relative value of four habitats as part of the management and recovery strategy in its Final Conservation Plan for the Cook Inlet beluga whale (NMFS 2008a). These are sites where beluga whales are most consistently observed, where feeding behavior has been documented, and where dense numbers of whales occur within a relatively confined area of the inlet. Type 1 Habitat is termed “High Value/High Sensitivity” and includes what NMFS believes to be the most important and sensitive areas of the Cook Inlet for beluga whales. Type 2 Habitat is termed “High Value” and includes summer feeding areas and winter habitats in waters where whales typically occur in lesser densities or in deeper waters. Type 3 Habitat occurs in the offshore areas of the mid and upper inlet and also includes wintering habitat. Type 4 Habitat describes the remaining portions of the range of these whales within Cook Inlet. The habitat that will be directly impacted from Test Pile activities at the POA is considered Type 2 Habitat, though excluded from the critical habitat designation due to national security considerations.

    Note that the amount of critical habitat impacted by the Test Pile Program is relatively small. The POA is planning to install test piles at 6 locations arranged on a roughly north-south alignment. The maximum overlap with critical habitat to the north is 1,677 acres (6.79 sq. km; 2.62 sq. mi.), and the maximum overlap to the south is 2,113 acres (8.55 sq. km; 3.3 sq. mi.), depending on pile location. The two maxima will not occur at the same time because pile installation will only take place at one pile at a time; the northern-most maximum is for the northern-most pile, and the southern-most maximum is for the southern-most pile. As pile location changes, the ensonified area on one side decreases as it increases on the other side. Pile installation in the center of the north-south alignment will ensonify the smallest area of critical habitat. The area excluded due to national security was not included in these measurements. For all pile locations, the temporarily ensonified area represents less than 1% of designated critical habitat.

    Beluga whales have been observed most often in the POA area at low tide in the fall, peaking in late August to early September (Markowitz and McGuire 2007; Cornick and Saxon-Kendall 2008). Although the POA scientific monitoring studies indicate that the area is not used frequently by many beluga whales, individuals and sometimes large groups of beluga whales have been observed passing through the area when traveling between lower and upper Knik Arm. Diving and traveling have been the most common behaviors observed, with instances of confirmed feeding. However, the most likely impact to marine mammal prey from the proposed Test Pile Program will be temporary avoidance of the immediate area. In general, the nearer the animal is to the source the higher the likelihood of high energy and a resultant effect (such as mild, moderate, mortal injury). Affected fish would represent only a small portion of food available to beluga whales in the area. The duration of fish avoidance of this area after pile driving stops is unknown, but a rapid return to normal recruitment, distribution, and behavior is anticipated. Any behavioral avoidance by fish of the disturbed area will still leave significantly large areas of fish and marine mammal foraging habitat in Knik Arm. Therefore, impacts to beluga prey species are likely to be minor and temporary.

    In summary, the long-term effects of any prey displacements are not expected to affect the overall fitness of the Cook Inlet beluga whale population or other affected species; effects will be minor and will terminate after cessation of the proposed Test Pile Program. Due to the short duration of the activities and the relatively small area of the habitat affected, the impacts to marine mammal habitat are not expected to cause significant or long-term negative consequences for individual marine mammals or their populations, including Cook Inlet beluga whales.

    Mitigation

    In order to issue an IHA under section 101(a)(5)(D) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to such activity, “and other means of effecting the least practicable impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stock for taking” for certain subsistence uses.

    Measurements from similar pile driving events were utilized to estimate zones of influence (ZOI; see “Estimated Take by Incidental Harassment”). ZOIs are often used to establish a mitigation zone around each pile (when deemed practicable) and to identify where Level A harassment to marine mammals may occur, and also provide estimates of the areas Level B harassment zones. ZOIs may vary between different diameter piles and types of installation methods. POA will employ the following mitigation measures, which were contained in the notice of proposed IHA with modifications as noted here:

    (a) Conduct briefings between construction supervisors and crews, marine mammal monitoring team, and POA staff prior to the start of all pile driving activity, and when new personnel join the work, in order to explain responsibilities, communication procedures, marine mammal monitoring protocol, and operational procedures.

    (b) For in-water heavy machinery work other than pile driving (using, e.g., standard barges, tug boats, barge-mounted excavators, or clamshell equipment used to place or remove material), if a marine mammal comes within 10 m, operations shall cease and vessels shall reduce speed to the minimum level required to maintain steerage and safe working conditions. This type of work could include the following activities: (1) movement of the barge to the pile location or (2) positioning of the pile on the substrate via a crane (i.e., stabbing the pile).

    Time Restrictions—Work would occur only during daylight hours, when visual monitoring of marine mammals can be conducted.

    Establishment of Monitoring and Shutdown Zones—Monitoring zones (ZOIs) are the areas in which SPLs would be expected to equal or exceed 160 dB rms for impact driving and 125 dB rms for vibratory driving. Note that 125 dB has been established as the appropriate isopleth for Level B harassment zone associated with vibratory driving since ambient noise levels near the POA are likely to be above 120 dB rms and this value has been used previously as a threshold in this area. Note that POA's acoustic monitoring plan includes collection of data to verify the level of background noise in the vicinity of POA. Monitoring of these zones enables observers to be aware of and communicate the presence of marine mammals in the project area. The primary purpose of monitoring these zones is for documenting potential incidents of Level B harassment, although here we require more stringent measures associated with beluga whale occurrence in the monitoring zone (see shutdown zone, below). Nominal predicted radial distances for driving piles with and without the use of sound attenuation systems are shown in Table 3. The attenuated zones are calculated assuming 10 dB noise reduction provided by the encapsulated bubble system and adBM resonance system treatments (CalTrans, 2012; note that the resonance system is expected to provide greater attenuation than would the bubble system, making this a conservative assumption for use of that system). Test Pile Program results will provide more precise information on actual levels of attenuation attained. We discuss monitoring objectives and protocols in greater depth in “Monitoring and Reporting.”

    Table 3—Distances in Meters to NMFS' Level A (Injury) and Level B Harassment Thresholds (Isopleths) for Unattenuated and Attenuated 48-Inch-Diameter Pile, Assuming a 125-dB Background Noise Level Pile diameter
  • (inches)
  • Impact Pinniped,
  • Level A
  • Injury
  • 190 dB Cetacean,
  • Level A
  • Injury
  • 180 dB Level B
  • Harassment
  • 160 dB Vibratory Pinniped,
  • Level A
  • Injury
  • 190 dB Cetacean,
  • Level A
  • Injury
  • 180 dB Level B
  • Harassment
  • 125 dB
    48, unattenuated 14 m 63 m 1,359 m <10 m <10 m 3,981 m. 48, 10 dB Attenuation <10 m 13 m 293 m <10 m <10 m 858 m.

    In order to document potential incidents of harassment, monitors will record all marine mammal observations regardless of location. The observer's location, as well as the location of the pile being driven, is known from a global positioning system (GPS). The location of the animal is estimated as a distance from the observer, which is then compared to the location from the pile and the ZOIs for relevant activities (i.e., pile installation). This information may then be used to extrapolate observed takes to reach an approximate understanding of actual total takes, in the event that the entire monitoring zone is not visible.

    Soft Start—The use of a soft start procedure is believed to provide additional protection to marine mammals by warning or providing a chance to leave the area prior to the hammer operating at full capacity, and typically involves a requirement to initiate sound from the hammer for 15 seconds at reduced energy followed by a waiting period. This procedure is repeated two additional times. It is difficult to specify the reduction in energy for any given hammer because of variation across drivers and, for impact hammers, the actual number of strikes at reduced energy will vary because operating the hammer at less than full power results in “bouncing” of the hammer as it strikes the pile, resulting in multiple “strikes.” The project will utilize soft start techniques for both impact and vibratory pile driving. POA will initiate sound from vibratory hammers for fifteen seconds at reduced energy followed by a 1 minute waiting period, with the procedure repeated two additional times. For impact driving, we require an initial set of three strikes from the impact hammer at reduced energy, followed by a thirty-second waiting period, then two subsequent three strike sets. Soft start will be required at the beginning of each day's pile driving work and at any time following a cessation of pile driving of 20 minutes or longer (specific to either vibratory or impact driving).

    Monitoring and Shut-Down for Pile Driving

    The following measures will apply to POA:

    Shut-down Zone—For all pile driving activities, POA will establish a shut-down zone. Shut-down zones typically correspond to the area in which SPLs equal or exceed the 180/90 dB rms acoustic injury criteria, with the purpose being to define an area within which shut-down of activity would occur upon sighting of a marine mammal (or in anticipation of an animal entering the defined area), thus preventing potential injury of marine mammals. For marine mammals other than beluga whales, POA, will implement a minimum shut-down zone of 100 m radius around all vibratory and impact pile activity. These precautionary measures would also further reduce the possibility of auditory injury and behavioral impacts as well as limit the unlikely possibility of injury from direct physical interaction with construction operations.

    Shut-down for Beluga Whales—In order to provide more stringent protections for beluga whales, in-water pile driving operations will be shut down upon observation of any beluga whale within or approaching the maximum potential Level B harassment zone when driving unattenuated piles (1,400 m and 4,000 m for impact and vibratory pile driving, respectively). When driving piles with sound attenuation systems, POA will shutdown upon observation of whales within or approaching a smaller zone that NMFS expects would contain sound exceeding relevant harassment criteria (300 m and 900 m for impact and vibratory pile driving, respectively). Two of ten piles will be driven without use of sound attenuation systems. If shut down does occur, pile driving may not resume until the group is observed exiting the relevant shut down zone or until 30 minutes have passed without re-sighting.

    Visual Marine Mammal Observation—POA will collect sighting data and behavioral responses to construction for marine mammal species observed in the region of activity during the period of activity. All observers will be trained in marine mammal identification and behaviors and are required to have no other construction-related tasks while conducting monitoring. POA will monitor the shut-down zone and disturbance zones before, during, and after pile driving, with observers located at the best practicable vantage points.

    At all times, POA will be required to monitor the maximum predicted Level B zones, regardless of sound attenuation system used. Although the zones employed for shutdown purposes in association with driving of attenuated piles are calculated assuming a 10 dB reduction in sound pressure levels, any beluga whales observed in the larger monitoring zone will be recorded and reported as potential take, pending analysis of acoustic monitoring data.

    Based on our requirements, the Marine Mammal Monitoring Plan would implement the following procedures for pile driving:

    • Four MMOs will work concurrently in rotating shifts to provide full coverage for marine mammal monitoring during in-water pile installation activities for the Test Pile Program. MMOs will work in four-person teams to increase the probability of detecting marine mammals and to confirm sightings. Three MMOs will scan the Level A and Level B harassment zones surrounding pile-driving activities for marine mammals by using big eye binoculars (25X), hand-held binoculars (7X), and the naked eye. One MMO will focus on the Level A harassment zone and two others will scan the Level B zone. Four MMOs will rotate through these three active positions every 30 minutes to reduce eye strain and increase observer alertness. The fourth MMO will record data on the computer, a less-strenuous activity that will provide the opportunity for some rest. A theodolite will also be available for use.

    • In order to more effectively monitor the maximum potential Level B harassment zone associated with vibratory pile driving (i.e., 4,000 m), personnel stationed on the hydroacoustic vessels will keep watch for marine mammals that may approach or enter that zone and will communicate all sightings to land-based MMOs and other appropriate shore staff.

    • Before the Test Pile Program commences, MMOs and POA authorities will meet to determine the most appropriate observation platform(s) for monitoring during pile driving. Considerations will include:

    ○ Height of the observation platform, to maximize field of view and distance

    ○ Ability to see the shoreline, along which beluga whales commonly travel

    ○ Safety of the MMOs, construction crews, and other people present at the POA

    ○ Minimizing interference with POA activities

    Height and location of an observation platform are critical to ensuring that MMOs can adequately observe the harassment zone during pile installation. The platform should be mobile and able to be relocated to maintain maximal viewing conditions as the construction site shifts along the waterfront. Past monitoring efforts at the POA took place from a platform built on top of a cargo container or a platform raised by an industrial scissor lift. A similar shore-based, raised, mobile observation platform will likely be used for the Test Pile Program.

    • POA will be required to monitor the maximum potential Level B harassment zones (1,400 and 4,000 m for impact and vibratory pile driving, respectively).

    • MMOs will begin observing for marine mammals within the Level A and Level B harassment zones for 30 minutes before “the soft start” begins. If a marine mammal(s) is present within the relevant shut-down zone prior to the “soft start” or if marine mammal occurs during “soft start” pile driving will be delayed until the animal(s) leaves the shut-down zone. Pile driving will resume only after the MMOs have determined, through sighting or after 30 minutes with no sighting, that the animal(s) has moved outside the shut-down zone. After 30 minutes, when the MMOs are certain that the shut-down zone is clear of marine mammals, they will authorize the soft start to begin.

    • If a marine mammal other than a beluga whale is traveling along a trajectory that could take it into the maximum potential Level B harassment zone, the MMO will record the marine mammal(s) as a “take” upon entering that zone. While the animal remains within the Level B harassment zone, that pile segment will be completed without cessation, unless the animal approaches the 100-meter shut-down zone, at which point the MMO will authorize the immediate shut-down of in-water pile driving before the marine mammal enters the shut-down zone. Pile driving will resume only once the animal has left the shut-down zone on its own or has not been resighted for a period of 30 minutes.

    • If waters exceed a sea-state which restricts the observers' ability to make observations within the relevant marine mammal shut-down zone (e.g. excessive wind or fog), pile installation will cease until conditions allow the resumption of monitoring.

    • The waters will be scanned 30 minutes prior to commencing pile driving at the beginning of each day, and prior to commencing pile driving after any stoppage of 30 minutes or greater. If marine mammals enter or are observed within the designated marine mammal shutdown zone during or 30 minutes prior to pile driving, the monitors will notify the on-site construction manager to not begin until the animal has moved outside the designated radius.

    • The waters will continue to be scanned for at least 30 minutes after pile driving has completed each day.

    Mitigation Conclusions

    NMFS has carefully evaluated the applicant's proposed mitigation measures and considered a range of other measures in the context of ensuring that NMFS prescribes the means of effecting the least practicable impact on the affected marine mammal species and stocks and their habitat. Our evaluation of potential measures included consideration of the following factors in relation to one another:

    • The manner in which, and the degree to which, the successful implementation of the measure is expected to minimize adverse impacts to marine mammals

    • The proven or likely efficacy of the specific measure to minimize adverse impacts as planned

    • The practicability of the measure for applicant implementation.

    Any mitigation measure(s) prescribed by NMFS should be able to accomplish, have a reasonable likelihood of accomplishing (based on current science), or contribute to the accomplishment of one or more of the general goals listed below:

    1. Avoidance or minimization of injury or death of marine mammals wherever possible (goals 2, 3, and 4 may contribute to this goal).

    2. A reduction in the numbers of marine mammals (total number or number at biologically important time or location) exposed to received levels of pile driving, or other activities expected to result in the take of marine mammals (this goal may contribute to 1, above, or to reducing harassment takes only).

    3. A reduction in the number of times (total number or number at biologically important time or location) individuals would be exposed to received levels of pile driving, or other activities expected to result in the take of marine mammals (this goal may contribute to 1, above, or to reducing harassment takes only).

    4. A reduction in the intensity of exposures (either total number or number at biologically important time or location) to received levels of pile driving, or other activities expected to result in the take of marine mammals (this goal may contribute to a, above, or to reducing the severity of harassment takes only).

    5. Avoidance or minimization of adverse effects to marine mammal habitat, paying special attention to the food base, activities that block or limit passage to or from biologically important areas, permanent destruction of habitat, or temporary destruction/disturbance of habitat during a biologically important time.

    6. For monitoring directly related to mitigation—an increase in the probability of detecting marine mammals, thus allowing for more effective implementation of the mitigation.

    Based on our evaluation of the applicant's proposed measures, as well as other measures considered by NMFS, our determination is that the mitigation measures provide the means of effecting the least practicable impact on marine mammals species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance.

    Monitoring and Reporting

    In order to issue an ITA for an activity, section 101(a)(5)(D) of the MMPA states that NMFS must set forth “requirements pertaining to the monitoring and reporting of such taking.” The MMPA implementing regulations at 50 CFR 216.104 (a)(13) indicate that requests for ITAs must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that are expected to be present in the proposed action area. POA submitted a marine mammal monitoring plan as part of the IHA application. It can be found at http://www.nmfs.noaa.gov/pr/permits/incidental/construction.htm.

    Monitoring measures prescribed by NMFS should accomplish one or more of the following general goals:

    1. An increase in the probability of detecting marine mammals, both within the mitigation zone (thus allowing for more effective implementation of the mitigation) and in general to generate more data to contribute to the analyses mentioned below;

    2. An increase in our understanding of how many marine mammals are likely to be exposed to levels of pile driving that we associate with specific adverse effects, such as behavioral harassment, TTS, or PTS;

    3. An increase in our understanding of how marine mammals respond to stimuli expected to result in take and how anticipated adverse effects on individuals (in different ways and to varying degrees) may impact the population, species, or stock (specifically through effects on annual rates of recruitment or survival) through any of the following methods:

    Behavioral observations in the presence of stimuli compared to observations in the absence of stimuli (need to be able to accurately predict received level, distance from source, and other pertinent information);

    Physiological measurements in the presence of stimuli compared to observations in the absence of stimuli (need to be able to accurately predict received level, distance from source, and other pertinent information);

    Distribution and/or abundance comparisons in times or areas with concentrated stimuli versus times or areas without stimuli;

    4. An increased knowledge of the affected species; and

    5. An increase in our understanding of the effectiveness of certain mitigation and monitoring measures.

    Acoustic Monitoring

    The POA has developed an acoustic monitoring plan titled Anchorage Port Modernization Project Test Pile Program Draft Hydroacoustic Monitoring Framework. Specific details regarding the plan may be found at www.nmfs.noaa.gov/pr/permits/incidental/construction.htm POA will conduct acoustic monitoring for impact pile driving to determine the actual distances to the 190 dB re 1μPa rms, 180 dB re 1μPa rms, and 160 dB re 1μPa rms isopleths, which are used by NMFS to define the Level A injury and Level B harassment zones for pinnipeds and cetaceans for impact pile driving. The POA will also measure background noise levels in the absence of pile driving activity and will conduct acoustic monitoring for vibratory pile driving to determine the actual distance to the point at which the signal becomes indistiuinguishable from background sound levels (assuming these are greater than 120 dB). Encapsulated bubble curtains and resonance-based attenuation systems will be tested during installation of some piles to determine their relative effectiveness at attenuating underwater noise.

    A typical daily sequence of operations for an acoustic monitoring day will include the following activities:

    • Discussion of the day's pile-driving plans with the crew chief or appropriate contact and determination of setup locations for the fixed positions. Considerations include the piles to be driven and anticipated barge movements during the day.

    • Calibration of hydrophones.

    • Setup of the near (10-meter) system either on the barge or the existing dock.

    • Deployment of an autonomous or cabled hydrophone at one of the distant locations.

    • Recording pile driving operational conditions throughout the day.

    • Upon conclusion of the day's pile driving, retrieve the remote systems, post- calibrate all the systems, and download all systems.

    • A stationary hydrophone recording system used to determine SSLs will be suspended either from the pile driving barge or existing docks at approximately 10 meters from the pile being driven, for each pile driven. These data will be monitored in real-time.

    • Prior to monitoring, a standard depth sounder will record depth before pile driving commences. The sounder will be turned off prior to pile driving to avoid interference with acoustic monitoring. Once the monitoring has been completed, the water depth will be recorded.

    • A far range hydrophone will be located at a distance no less than 20 times the source water depth from the pile driving activity outside of the active shipping lanes/dredge area. If possible, this hydrophone should be moored using the same anchoring equipment and in the same location as was used for the background noise monitoring. In this situation, the hydrophone would be located between 500 and 1,000 meters (1,640—3,280 feet) from the indicator test piles, which is sufficiently greater than 20 times the source water depth. This hydrophone will also be located in waters greater than 10 meters (33 feet) deep and avoid areas of irregular bathymetry. The hydrophone will be placed within a few meters of the bottom in order to reduce flow noise avoid areas of irregular bathymetry. The hydrophone will be placed within a few meters of the bottom in order to reduce flow noise

    Vessel-Based Hydrophones (One to Two Locations)

    • An acoustic vessel with a single-channel hydrophone will be in the Knik Arm open water environment to monitor near-field and real-time isopleths for marine mammals (Figure 13-1, Figure 13-4 in Application).

    • Continuous measurements will be made using a sound level meter.

    • One or two acoustic vessels are proposed to deploy hydrophones that will be used to collect data to estimate the distance to far-field sound levels (i.e., the 120-125-dB zone for vibratory and 160-dB zone for impact driving).

    • During the vessel-based recordings, the engine and any depth finders must be turned off. The vessel must be silent and drifting during spot recordings.

    • Either a weighted tape measure or an electronic depth finder will be used to determine the depth of the water before measurement and upon completion of measurements. A GPS unit or range finder will be used to determine the distance of the measurement site to the piles being driven.

    • Prior to and during the pile-driving activity, environmental data will be gathered, such as water depth and tidal level, wave height, and other factors, that could contribute to influencing the underwater sound levels (e.g., aircraft, boats, etc.). Start and stop time of each pile-driving event and the time at which the bubble curtain is turned on and off will be logged.

    • The construction contractor will provide relevant information, in writing, to the hydroacoustic monitoring contractor for inclusion in the final monitoring report:

    Data Collection

    MMOs will use approved data forms. Among other pieces of information, POA will record detailed information about any implementation of shut-downs, including the distance of animals to the pile and description of specific actions that ensued and resulting behavior of the animal, if any. In addition, POA will attempt to distinguish between the number of individual animals taken and the number of incidents of take. At a minimum, the following information would be collected on the sighting forms:

    • Date and time that monitored activity begins or ends;

    • Construction activities occurring during each observation period;

    • Weather parameters (e.g., percent cover, visibility);

    • Water conditions (e.g., sea state, tide state);

    • Species, numbers, and, if possible, sex and age class of marine mammals;

    • Description of any observable marine mammal behavior patterns, including bearing and direction of travel and distance from pile driving activity;

    • Distance from pile driving activities to marine mammals and distance from the marine mammals to the observation point;

    • Locations of all marine mammal observations; and

    • Other human activity in the area.

    Ambient Noise

    Ambient noise will be collected according to the NMFS' guidance memorandum issued on January 31, 2012, titled Data Collection Methods to Characterize Underwater Background Sound Relevant to Marine Mammals in Coastal Nearshore Waters and Rivers of Washington and Oregon (NMFS 2012). This guidance is considered to be generally applicable for marine conditions and hydroacoustic monitoring in Alaska.

    Reporting

    POA will notify NMFS prior to the initiation of the pile driving activities and will provide NMFS with a draft monitoring report within 90 days of the conclusion of the proposed construction work or 60 days prior to the start of additional work covered under a subsequent IHA or Letter of Authorization. This report will detail the monitoring protocol, summarize the data recorded during monitoring, and estimate the number of marine mammals that may have been harassed. If no comments are received from NMFS within 30 days, the draft final report will constitute the final report. If comments are received, a final report must be submitted within 30 days after receipt of comments.

    Estimated Take by Incidental Harassment

    Except with respect to certain activities not pertinent here, section 3(18) of the MMPA defines “harassment” as: “. . . any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild [Level A harassment]; or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering [Level B harassment].”

    Given the many uncertainties in predicting the quantity and types of impacts of sound in every given situation on marine mammals, it is common practice to estimate how many animals are likely to be present within a particular distance of a given activity, or exposed to a particular level of sound, based on the available science. The method used for calculating potential exposures to impact and vibratory pile driving noise for each threshold was estimated using a habitat-based predictive density model (Goetz et al., 2012) and local marine mammal data sets.

    Harbor Seal and Harbor Porpoise

    Estimated take for harbor seals and harbor porpoises was modified from the levels published in the Federal Register notice of proposed authorization. This change was based on discussion with the Marine Mammal Commission. NMFS had originally proposed 31 harbor seal takes and 37 harbor porpoise takes. The Commission felt that there was a strong likelihood that more harbor seals would be taken compared to harbor porpoises. NMFS had estimated that one animal of each species would be taken per day resulting in 31 per species. NMFS also added 6 take for harbor porpoises as a contingency since these animals are known to travel in pods.

    NMFS acknowledges that takes for various species can be estimated through a variety of methodologies. NMFS re-calculated take for these two species. As a conservative measure, daily individual sighting rates for any recorded year were generally used to quantify take of harbor seals and harbor porpoises for pile driving associated with the Test Pile Program. Data was collected as part of the MTRP Scientific Monitoring program, which took place from 2008 through 2011 (Cornick et al. 2008. 2009, 2010, 2011).

    The following equation was used to estimate harbor seal and harbor porpoise exposures

    Exposure estimate = (N) * # days of pile driving per site, Where: N = highest daily abundance estimate for each species in project area.

    For harbor porpoises there was only a single sighting of more than one animal so NMFS opted to use a daily abundance rate of one for a total authorized take of 31. For harbor seals there were several reports of two or more animals. Therefore, NMFS applied a daily abundance estimate of two for a total authorized take of 62.

    Steller Sea Lion

    There were three sightings of a single Steller sea lion during construction at the POA in 2009, and it is not possible to determine whether it was one or more animals. Alaska marine waters, including Cook Inlet, are undergoing environmental changes that are correlated with changes in movements of animals, including marine mammals, into expanded or contracted ranges. For example, harbor seals and harbor porpoises are increasing in numbers in Upper Cook Inlet. It is unknown at this time what the impacts of environmental change will be on Steller sea lion movements, but it is possible that Steller sea lions may be sighted more frequently in Upper Cook Inlet, which is generally considered outside their typical range. The Steller sea lions sightings at the POA in 2009 indicate that this species can and does occur in Upper Cook Inlet. As such, NMFS proposed an encounter rate of 1 individual for every 5 pile driving days across 31 driving days in the proposed authorization published in the Federal Register. Furthermore, Steller sea lions are social animals and often travel in groups, and a single sighting could include more than one individual. Therefore, NMFS conservatively estimates that six Steller sea lions could to be observed at the POA during the proposed timeframe of the Test Pile Program.

    Killer Whales

    No killer whales were sighted during previous monitoring programs for the Knik Arm Crossing and POA construction projects, based on a review of monitoring reports. The infrequent sightings of killer whales that are reported in upper Cook Inlet tend to occur when their primary prey (anadromous fish for resident killer whales and beluga whales for transient killer whales) are also in the area (Shelden et al. 2003).

    With in-water pile driving occurring for only about 27 hours over 31 days, the potential for exposure within the Level B harassment isopleths is anticipated to be extremely low. Level B take is conservatively estimated at no more than 8 killer whales, or two small pods, for the duration of the Test Pile Program.

    Cook Inlet Beluga Whale

    For beluga whales, aerial surveys of Cook Inlet were completed in June and July from 1994 through 2008 (Goetz et al. 2012). Data from these aerial surveys were used along with depth soundings, coastal substrate type, an environmental sensitivity index, an index of anthropogenic disturbance, and information on anadromous fish streams to develop a predictive beluga whale habitat model (Goetz et al. 2012)

    Three different beluga distribution maps were produced from the habitat model based on sightings of beluga whales during aerial surveys. First, the probability of beluga whale presence was mapped using a binomial (i.e., yes or no) distribution and the results ranged from 0.00 to 0.01. Second, the expected group size was mapped. Group size followed a Poisson distribution, which ranged from 1 to 232 individuals in a group. Third, the product (i.e., multiplication) of these predictive models produced an expected density model, with beluga whale densities ranging from 0 to 1.12 beluga whales/km2. From this model Goetz et al. (2012) developed a raster GIS dataset, which provides a predicted density of beluga whales throughout Cook Inlet at a scale of one square kilometer. Habitat maps for beluga whale presence, group size, and density (beluga whales/km2) were produced from these data and resulting model, including a raster Geographic Information System data set, which provides a predicted density of beluga whales throughout Cook Inlet at a 1-km2-scale grid.

    The numbers of beluga whales potentially exposed to noise levels above the Level B harassment thresholds for impact (160 dB) and vibratory (125 dB) pile driving were estimated using the following formula:

    Beluga Exposure Estimate = N * Area * number of days of pile driving, Where: N = maximum predicted # of belugas whales/km2 Area = Area of Isopleth (area in km2 within the 160-dB isopleth for impact pile driving, or area in km2 within the 125-dB isopleth for vibratory pile driving)

    The distances to the Level B harassment and Level A injury isopleths were used to estimate the areas of the Level B harassment and Level A injury zones associated with driving a 48-inch pile, without consideration of potential effectiveness of sound attenuation systems. Note that ambient noise is likely elevated in the area, and 125 dB is used as a proxy for the background sound level. Distances and areas were calculated for both vibratory and impact pile driving, and for cetaceans and pinnipeds. Geographic information system software was used to map the Level B harassment and Level A injury isopleths from each of the six indicator test pile locations. Land masses near the POA, including Cairn Point, the North Extension, and Port MacKenzie, act as barriers to underwater noise and prevent further spread of sound pressure waves. As such, the harassment zones for each threshold were truncated and modified with consideration of these impediments to sound transmission (See Figures 6-1 through 6-6 in the Application). The measured areas (Table 6) were then used in take calculations for beluga whales.

    Table 4—Areas of the Level A and Level B Harassment Zones * Indicator teste piles Impact Pinniped,
  • Level A
  • 190 dB Cetacean,
  • Level A
  • 180 dB Level B 160 dB Vibratory Pinniped,
  • Level A
  • 190 dB Cetacean,
  • Level A
  • 180 dB Pinniped,
  • Level B
  • 125 dB
    Piles 3, 4 <0.01 km2 <0.01 km2 2.24 km2 0 km2 0 km2 15.54 km2. Pile 1 2.71 km2 19.54 km2. Pile 2 2.76 km2 20.08 km2. Piles 5, 6 2.79 km2 20.90 km2. Pile 7 2.80 km2 20.95 km2. Piles 8, 9, 10 3.03 km2 22.14 km2. * Based on the distances to sound isopleths for a 48-inch-diameter pile, assuming a 125-dB background noise level.

    The beluga whale exposure estimate was calculated for each of the six indicator test pile locations separately, because the area of each isopleth was different for each location. The predicted beluga whale density raster (Goetz et al. 2012) was overlaid with the isopleth areas for each of the indicator test pile locations. The maximum predicted beluga whale density within each area of isopleth was then used to calculate the beluga whale exposure estimate for each of the indicator test pile locations. The maximum density values ranged from 0.031 to 0.063 beluga whale/km2 (Table 5).

    In the Federal Register Notice of proposed authorization, NMFS calculated an incorrect number of driving days at 43.5, which assumed that impact driving would occur on 12.5 days and vibratory could occur on 31 days. Impact and vibratory driving, however, will occur on a total of only 31 days. NMFS summed fractions of takes across days equaling a total of 19.245 takes which was rounded up to 20. NMFS also rounded the large group factor of 11.1 up to 12 resulting in a preliminary take estimate of 32 beluga whales. However, based on discussion with the Commission, NMFS revised the take estimates to reflect standard rounding practices (as typically used by NMFS in estimating potential marine mammal exposures to sound) to arrive at a number of whole animals likely to be exposed per day.

    In the revised take estimate, the area values were multiplied by the maximum predicted densities for both impact and vibratory driving as was done in the Federal Register Notice of proposed authorization. The impact driving takes per day values were all well below one (see Table 5). Employing standard rounding practices for this final IHA would result in zero takes from impact driving. However, we recognize that there is some non-zero probability of exposure of beluga whales due specifically to impact pile driving and, given that there are a total of 18.5 days of impact pile driving possible, we believe that a conservative estimate of 2 beluga takes during the days of impact driving is reasonable.

    Using standard rounding procedures, we estimate that there would be one beluga whale exposed per day of vibratory driving (see Table 4). When considering the projected number of days of vibratory pile driving including a 25 percent contingency for work delays (i.e., 12.5 total days of vibratory driving), we estimate 13 takes from vibratory driving. The takes from impact driving per pile were added to the takes per pile from vibratory driving resulting in an estimated 15 beluga whale takes. Results are shown in Table 5.

    Table 5—Estimated Cook Inlet Beluga Whale Takes Pile number Impact pile
  • driving area
  • (km2)
  • Impact
  • driving max
  • density
  • (whales/km2)
  • Takes per
  • day impact
  • driving/
  • rounded takes
  • Vibratory pile
  • driving area
  • (km2)
  • Vibratory
  • driving max
  • density
  • (whales/km2)
  • Takes per
  • day vibratory
  • driving/
  • rounded takes
  • Pile 3 2.24 0.031 0.07/0 15.54 0.056 0.87/1 Pile 4 2.24 0.031 0.07/0 15.54 0.056 0.87/1 Pile 1 2.71 0.042 0.11/0 19.54 0.063 1.23/1 Pile 2 2.76 0.038 0.10/0 20.08 0.062 1.24/1 Pile 5 2.79 0.062 0.17/0 20.9 0.062 1.30/1 Pile 6 2.79 0.062 0.17/0 20.9 0.062 1.30/1 Pile 7 2.8 0.062 0.17/0 20.95 0.062 1.30/1 Pile 8 3.03 0.042 0.13/0 22.14 0.063 1.39/1 Pile 9 3.03 0.042 0.13/0 22.14 0.063 1.39/1 Pile 10 3.03 0.042 0.13/0 22.14 0.063 1.39/1 Total Rounded Takes (assume 18.5 days of impact pile driving) 0 Total Rounded Takes (assume 12.5 days of vibratory pile driving) 12.5 Total Takes 2 * Total Rounded Takes 13 Total Takes From Impact And Vibratory Driving 15 * Note that takes per day from impact driving rounded down to zero. NFMS acknowledges the risk of take is greater than zero and as a contingency estimated two total takes from impact pile driving.

    The beluga density estimate used for estimating potential beluga exposures does not reflect the reality that beluga whales can travel in large groups. As a contingency that a large group of beluga whales could potentially occur in the project area, NMFS buffered the exposure estimate detailed in the preceding by adding the estimated size of a notional large group of beluga whales. Incorporation of large groups into the beluga whale exposure estimate is intended to reflect the possibility that whales could be exposed to behavioral harassment based on what is known about belugas' tendency to travel together in pods. A single large group has been added to the estimate of exposure for beluga whales based on the density method, in the anticipation that the entry of a large group of beluga whales into a Level B harassment zone would take place, at most, one time during the project. To determine the most appropriate size of a large group, two sets of data were examined: (1) Beluga whale sightings collected opportunistically by POA employees since 2008 and (2) Alaska Pacific University (APU) scientific monitoring that occurred from 2007 through 2011.

    The APU scientific monitoring data set documents 390 beluga whale sightings. Group size exhibits a mode of 1 and a median of 2, indicating that over half of the beluga groups observed over the 5-year span of the monitoring program were of individual beluga whales or groups of 2. As expected, the opportunistic sighting data from the POA do not reflect this preponderance of small groups. The POA opportunistic data do indicate, however, that large groups of belugas were regularly seen in the area over the past 7 years, and that group sizes ranged as high as 100 whales. Of the 131 sightings documented in the POA opportunistic data set, 48 groups were of 15 or more beluga whales.

    The 95th percentile of group size for the APU scientific monitoring data is 11.1 beluga whales, rounded down to 11 beluga whales. In the Federal Register Notice of proposed authorization, the value was erroneously rounded up to 12. This means that, of the 390 documented beluga whale groups in this data set, 95 percent consisted of fewer than 11.1 whales; 5 percent of the groups consisted of more than 11.1 whales. Therefore, it is improbable that a group of more than 11 beluga whales would occur during the Test Pile Program. This number balances reduced risk to the POA with protection of beluga whales. POA opportunistic observations indicate that many groups of greater than 11 beluga whales commonly transit through the project area. APU scientific monitoring data indicate that 5 percent of their documented groups consisted of greater than 11 beluga whales.

    The total number of estimated and authorized takes of Cook Inlet beluga whales is, therefore, 15 (13 vibratory/2 impact driving) using the density method plus 11 based on the large group adjustment, resulting in 26 total incidents of take. No Level A harassment is expected or authorized.

    Note that this take estimate and authorization is based on the maximum predicted zone of influence (i.e., 1,359 m and 3,981 m for impact and vibratory driving, respectively). This is a precautionary approach accounting for the possibility that the sound attenuation systems used may not always achieve effective attenuation of at least 10 dB.

    Analyses and Determinations Negligible Impact Analysis

    Negligible impact is “an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival” (50 CFR 216.103). A negligible impact finding is based on the lack of likely adverse effects on annual rates of recruitment or survival (i.e., population-level effects). An estimate of the number of Level B harassment takes, alone, is not enough information on which to base an impact determination. In addition to considering estimates of the number of marine mammals that might be “taken” through behavioral harassment, NMFS must consider other factors, such as the likely nature of any responses (their intensity, duration, etc.), the context of any responses (critical reproductive time or location, migration, etc.), as well as the number and nature of estimated Level A harassment takes, the number of estimated mortalities, effects on habitat, and the status of the species.

    To avoid repetition, the discussion of our analyses applies to all the species listed in Table 6, given that the anticipated effects of this pile driving project on marine mammals are expected to be relatively similar in nature. Except for beluga whales, where we provide additional discussion, there is no information about the size, status, or structure of any species or stock that would lead to a different analysis for this activity; otherwise species-specific factors would be identified and analyzed.

    Pile driving activities associated with the Test Pile Program, as outlined previously, have the potential to disturb or displace marine mammals. Specifically, the specified activities may result in take, in the form of Level B harassment (behavioral disturbance) only, from underwater sounds generated from pile driving. Harassment takes could occur if individuals of these species are present in the ensonified zone when pile driving is happening.

    No injury, serious injury, or mortality is anticipated given the nature of the activity and measures designed to minimize the possibility of injury to marine mammals. The potential for these outcomes is minimized through the implementation of the following planned mitigation measures. POA will employ a “soft start” when initiating driving activities. Given sufficient “notice” through use of soft start, marine mammals are expected to move away from a pile driving source. The likelihood of marine mammal detection ability by trained observers is high under the environmental conditions described for waters within a 1,000 meter distance of the project area. This enables reasonable certainty of the implementation of required shut-downs to avoid potential injury of marine mammals other than beluga whales and to minimize potential harassment of beluga whales for the majority of driven piles. POA's proposed activities are localized and of relatively short duration. The total amount of time spent pile driving, including a 25% contingency, will be 27 hours over approximately 31 days.

    These localized and short-term noise exposures may cause brief startle reactions or short-term behavioral modification by the animals. These reactions and behavioral changes are expected to subside quickly when the exposures cease.

    The project is not expected to have significant adverse effects on affected marine mammals' habitat, as analyzed in detail in the “Anticipated Effects on Marine Mammal Habitat” section. No important feeding and/or reproductive areas for marine mammals other than beluga whales are known to be near the proposed project area. Project-related activities may cause some fish to leave the area of disturbance, thus temporarily impacting marine mammals' foraging opportunities in a limited portion of the foraging range; but, because of the short duration of the activities and the relatively small area of the habitat that may be affected, the impacts to marine mammal habitat are not expected to cause significant or long-term negative consequences.

    Beluga whales have been observed transiting past the POA project by both scientific and opportunistic surveys. During the spring and summer when the Test Pile Program is scheduled, belugas are generally concentrated near warmer river mouths where prey availability is high and predator occurrence is low (Moore et al. 2000). Data on beluga whale sighting rates, grouping, behavior, and movement indicate that the POA is a relatively low-use area, occasionally visited by lone whales or small groups of whales. They are observed most often at low tide in the fall, peaking in late August to early September. Groups with calves have been observed to enter the POA area, but data do not suggest that the area is an important nursery area. Although POA scientific monitoring studies indicate that the area is not used frequently by many beluga whales, it is apparently used for foraging habitat by whales traveling between lower and upper Knik Arm, as individuals and groups of beluga whales have been observed passing through the area each year during monitoring efforts. Data collected annually during monitoring efforts demonstrated that few beluga whales were observed in July and early August; numbers of sightings increased in mid-August, with the highest numbers observed late August to mid-September. In all years, beluga whales have been observed to enter the project footprint while construction activities were taking place, including pile driving and dredging. The most commonly observed behaviors were traveling, diving, and suspected feeding. No apparent behavioral changes or reactions to in-water construction activities were observed by either the construction or scientific observers (Cornick et al. 2011).

    Critical habitat for Beluga whales has been identified in the area. However, habitat in the immediate vicinity of the project has been excluded from critical habitat designation. Furthermore the project activities would not modify existing marine mammal habitat. NMFS concludes that both the short-term adverse effects and the long-term effects on beluga whale prey quantity and quality will be insignificant. The sound from pile driving may interfere with whale passage between lower and upper Knik Arm. However, POA is an industrialized area with significant noise from vessel traffic and beluga whales pass through the area unimpeded.

    Effects on individuals that are taken by Level B harassment, on the basis of reports in the literature as well as monitoring from other similar activities, will likely be limited to reactions such as increased swimming speeds, increased surfacing time, or decreased foraging (if such activity were occurring) (e.g., Thorson and Reyff, 2006; Lerma, 2014). Most likely, individuals will simply move away from the sound source and be temporarily displaced from the areas of pile driving, although even this reaction has been observed primarily only in association with impact pile driving. The pile removal activities analyzed here are similar to, or less impactful than, numerous construction activities conducted in other similar locations, which have taken place with no reported injuries or mortality to marine mammals, and no known long-term adverse consequences from behavioral harassment. Repeated exposures of individuals to levels of sound that may cause Level B harassment here are unlikely to result in hearing impairment or to significantly disrupt foraging behavior. Thus, even repeated Level B harassment of some small subset of the species is unlikely to result in any significant realized decrease in fitness for the affected individuals, and thus would not result in any adverse impact to the stock as a whole. Impacts will be reduced to the least practicable level through use of mitigation measures described herein. Finally, if sound produced by project activities is sufficiently disturbing, animals are likely to simply avoid the project area while the activity is occurring.

    In summary, this negligible impact analysis is founded on the following factors for beluga whales: (1) The seasonal distribution and habitat use patterns of Cook Inlet beluga whales, which suggest that for much of the time only a small portion of the population would be in the vicinity of the Test Pile Program; (2) the lack of behavioral changes observed with previous construction activities; (3) the nominal impact on critical habitat; (4) the mitigation requirements, including shut-downs for one or more belugas; (4) the monitoring requirements described earlier in this document for all marine mammal species that will further reduce the amount and intensity of takes; and (5) monitoring results from previous activities that indicated low numbers of beluga whale sightings within the Level B disturbance exclusion zone.

    For marine mammals other than beluga whales the negligible impact analysis is based on the following: (1) The possibility of injury, serious injury, or mortality may reasonably be considered discountable; (2) the anticipated incidents of Level B harassment consist of, at worst, temporary modifications in behavior; (3) the absence of any significant habitat within the project area, including rookeries, significant haul-outs, or known areas or features of special significance for foraging or reproduction; (4) the anticipated efficacy of the proposed mitigation measures in reducing the effects of the specified activity. In combination, we believe that these factors, as well as the available body of evidence from other similar activities, demonstrate that the potential effects of the specified activity will have only short-term effects on individuals. The specified activity is not expected to impact annual rates of recruitment or survival and will therefore have a negligible impact on those species.

    Therefore, based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the proposed monitoring and mitigation measures, NMFS finds that the total marine mammal take from POA's Test Pile Program will have a negligible impact on the affected marine mammal species or stocks.

    Table 6—Authorized Level B Harassment Take Levels, DPS or Stock Abundance, and Percentage of Population Proposed To Be Taken DPS or stock Proposed
  • Level B take harassment
  • Abundance
  • (DPS or stock)
  • Percentage of
  • population
  • Cook Inlet beluga whale 26 312 a 8.33 Killer whale 8 2,347 Resident b 587 Transient 0.34 Resident c 1.36 Transient. Harbor porpoise 31 31,046 d 0.10. Harbor seal 62 27,836 e 0.22. Western DPS, Steller sea lion 6 49,497 f <0.01. a Abundance estimate for the Cook Inlet stock and DPS (Allen and Angliss, 2015; Shelden et al., 2015). b Abundance estimate for the Eastern North Pacific Alaska Resident stock; the estimate for the transient population is for the Gulf of Alaska, Aleutian Islands, and Bering Sea stock. c Assumes all individuals would be from the resident stock or the transient stock. d Abundance estimate for the Gulf of Alaska stock. e Abundance estimate for the Cook Inlet/Shelikof stock. f Abundance estimate for the Western U.S. Stock and western DPS. Sources for population estimates other than Cook Inlet beluga whales: Allen and Angliss 2013, 2014, 2015.
    Small Numbers Analysis

    Table 6 indicates the numbers of animals that could be exposed to received noise levels that could cause Level B behavioral harassment from work associated with the proposed Test Pile Program. The analyses provided represents between <0.01% to 8.33% of the populations of these stocks that could be affected by Level B behavioral harassment. These are small numbers of marine mammals relative to the sizes of the affected species and population stocks under consideration. Furthermore, it is possible that some beluga whale takes may represent a single individual that is counted repeatedly.

    Based on the methods used to estimate take, and taking into consideration the implementation of the mitigation and monitoring measures, we find that small numbers of marine mammals will be taken relative to the populations of the affected species or stocks.

    Impact on Availability of Affected Species for Taking for Subsistence Uses

    NMFS has defined “unmitigable adverse impact” in 50 CFR 216.103 as: “an impact resulting from the specified activity: (1) That is likely to reduce the availability of the species to a level insufficient for a harvest to meet subsistence needs by: (i) Causing the marine mammals to abandon or avoid hunting areas; (ii) Directly displacing subsistence users; or (iii) Placing physical barriers between the marine mammals and the subsistence hunters; and (2) That cannot be sufficiently mitigated by other measures to increase the availability of marine mammals to allow subsistence needs to be met.

    The proposed Test Pile Program will occur in or near a traditional subsistence hunting area and could affect the availability of marine mammals for subsistence uses. Harbor seals are the only species for which take is authorized that may be subject to limited boat-based subsistence hunting.

    POA communicated with representative Native subsistence users and Tribal members to develop a Plan of Cooperation, which identifies what measures have been taken or will be taken to minimize any adverse effects of the Test Pile Program on the availability of marine mammals for subsistence uses. On December 22, 2015, POA sent letters to eight tribes including the the Kenaitze, Tyonek, Knik, Eklutna, Ninilchik, Seldovia, Salamatoff, and Chickaloon tribes informing them of the project and identifying potential impacts to marine mammals as well as planned mitigation efforts. POA also inquired about any possible marine mammal subsistence concerns they might have. None of the tribes indicated that they had any concerns with the proposed Test Pile Program.

    Since all project activities will take place within the immediate vicinity of the POA, the project will not have an adverse impact on the availability of marine mammals for subsistence use at distant locations. Due to mitigation and monitoring requirements, no displacement of marine mammals from traditional hunting areas or changes to availability of subsistence resources will result from Test Pile Program activities. Given the combination of the Test Pile Program location, small size of the affected area, and required mitigation and monitoring measures NMFS has determined that there will not be an unmitigable adverse impact on subsistence uses from POA's proposed activities.

    Endangered Species Act (ESA)

    The Cook Inlet beluga whale and western depleted population segment of Steller sea lion are mammal species listed as endangered under the ESA with confirmed or possible occurrence in the study area. NMFS' Permits and Conservation Division has completed a formal consultation with NMFS' Protected Resources Division under section 7 of the ESA on the issuance of an IHA to POA under section 101(a)(5)(D) of the MMPA for this activity. A Biological Opinion was issued on March 2, 2016 and is posted at http://www.nmfs.noaa.gov/pr/permits/incidental/construction.htm. NMFS determined that while the proposed action may affect Cook Inlet beluga whales and wDPS Steller sea lions, it is not likely to jeopardize the continued existence of those species or adversely modify any designated critical habitat.

    National Environmental Policy Act (NEPA)

    NMFS drafted a document titled Environmental Assessment for Issuance of an Incidental Harassment Authorization to the Port of Alaska for the Take of Marine Mammals Incidental to a Test Pile Program and Finding of No Significant Impact (FONSI). The FONSI was signed on March 2, 2016. The EA/FONSI is posted at http://www.nmfs.noaa.gov/pr/permits/incidental/construction.htm.

    Authorization

    As a result of these determinations, we have issued an IHA to POA for conducting the Test Pile Program in Anchorage, AK from April 1, 2016 through March 31, 2017 through provided the previously described mitigation, monitoring, and reporting requirements are incorporated.

    Dated: March 9, 2016. Perry Gayaldo, Deputy Director, Office of Protected Resources, National Marine Fisheries Service.
    [FR Doc. 2016-06251 Filed 3-18-16; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XE511 Gulf of Mexico Fishery Management Council; Public Meeting AGENCY:

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

    ACTION:

    Notice of a public meeting.

    SUMMARY:

    The Gulf of Mexico Fishery Management Council (Council) will hold a four-day meeting to consider actions affecting the Gulf of Mexico fisheries in the exclusive economic zone (EEZ).

    DATES:

    The meeting will take place on Monday, April 4 through Thursday, April 7, 2016, starting at 8:30 a.m. daily.

    ADDRESSES:

    The meeting will be held at the Doubletree by Hilton hotel, 6505 N. Interstate Highway 35 North, Austin, TX 78752; telephone: (512) 454-3737.

    Council address: Gulf of Mexico Fishery Management Council, 2203 N. Lois Avenue, Suite 1100, Tampa, FL 33607; telephone: (813) 348-1630.

    FOR FURTHER INFORMATION CONTACT:

    Douglas Gregory, Executive Director, Gulf of Mexico Fishery Management Council; telephone: (813) 348-1630.

    SUPPLEMENTARY INFORMATION: Agenda Monday, April 4, 2016; 8:30 a.m.-5 p.m.

    The Gulf Council will begin with updates and presentations from management committees. The Joint Administrative Policy & Budget Management Committee will review the 2014 No-cost extension, 2015 & 2016 Budgets, and 2016 Proposed Activities. The Data Collection Committee will review the Electronic Reporting Program Flowchart; give an update on the Commercial Electronic Reporting Pilot Program; and discuss Final Action—South Atlantic's Amendment: Modifications to Charter Vessel and Headboat Reporting Requirements. The Shrimp Management Committee will discuss the Biological Review of the Texas Closure; review the Updated Stock Assessments for Brown, White and Pink shrimp; receive a summary from the Shrimp Advisory Panel (AP) meeting; review of Options Paper for Shrimp Amendment 17B; and receive a summary from the Shrimp Scientific and Statistical Committee (SSC) meeting. After lunch, the Mackerel Management Committee will discuss Final Action on Coastal Migratory Pelagics (CMP) Amendment 26: Changes in Allocations, Stock Boundaries and Sale Provisions for Gulf of Mexico and Atlantic Migratory Groups of King Mackerel; receive summary of Public Hearing Comments and Written Public Comments; and a summary from the Law Enforcement Advisory Panel. The Law Enforcement Committee will receive a summary from the Law Enforcement Technical Committee; and select the recipient for Officer of the Year award.

    Tuesday, April 5, 2016; 8:30 a.m.-5 p.m.

    The Reef Fish Management Committee will receive an update on 2015 Recreational Red Snapper Landings and Recreational Season Projections for 2016; take final action on Framework Action to Modify Red Grouper Annual Catch Limits; review Options Paper for Amendment 46—Modify Gray Triggerfish Rebuilding Plan and Draft Amendment 41—Red Snapper Management for Federally Permitted Charter Vessels. The committee will receive a summary report from the Ad Hoc Red Snapper Charter For-Hire Advisory Panel (AP) meeting; review of Draft Amendment 42—Federal Reef Fish Headboat Management, Public Hearing Draft Amendment 43—Hogfish Stock Definition, Status Determination Criteria (SDC), Annual Catch Limits (ACL) and Size Limit; review Draft Amendment 45—Extend or Eliminate the Red Snapper Sector Separation Sunset Provision; and review preliminary options for Mechanism to Allow Recreational Red Snapper Season to Re-open if ACL is not exceeded.

    Wednesday, April 6, 2016; 8:30 a.m.-5 p.m.

    The Reef Fish Management Committee will discuss Final Action on Framework Action to Modify Commercial Gear Requirements and Recreational/Commercial Fishing Year for Yellowtail Snapper; and any other business. The Gulf SEDAR Committee will review and provide updates on SEDAR Schedule Progress and deliverables; and receive a SEDAR Steering Committee update.

    The Full Council will convene approximately mid-morning (10:30 a.m.) with a Call to Order, Announcements and Introductions; Adoption of Agenda and Approval of Minutes; and will review Exempt Fishing Permit (EFPs) Applications, if any. The Council will receive presentations on Proposed Rule Standardized Bycatch Reporting Methodology, Science Update: How the Oil Spill Impacted the Fish Species We Care About, Mid-Atlantic Fishery Management Council's Ecosystem Approach to Fisheries Management, and NMFS-SERO Landing Summaries.

    After lunch, the Council will receive public testimony from 1:45 p.m. until 5 p.m. on Agenda Testimony Items: Final Action—Coastal Migratory Pelagics Amendment 26: Changes in Allocations, Stock Boundaries and Sale Provisions for Gulf of Mexico and Atlantic Migratory Groups of King Mackerel; Final Action—Framework Action to Modify Red Grouper Annual Catch Limits; Final Action—Framework Action to Modify Commercial Gear Requirements and Recreational/Commercial Fishing Year for Yellowtail Snapper; Final Action—South Atlantic Amendment: Modifications to Charter Vessel and Headboat Reporting Requirements and hold an open public testimony period regarding any other fishery issues or concern. Anyone wishing to speak during public comment should sign in at the registration station located at the entrance to the meeting room.

    Thursday, April 7, 2016; 8:30 a.m.-3:30 p.m.

    The Council will review and discuss committee reports as follows: Joint Administrative Policy/Budget, Law Enforcement, Data Collection, Shrimp, Mackerel, Gulf SEDAR, and Reef Fish Management Committees; and, vote on Exempted Fishing Permits (EFP) applications, if any. Lastly, the Council will discuss other business items, if any.

    Meeting Adjourns

    The timing and order in which agenda items are addressed may change as required to effectively address the issue. The latest version will be posted on the Council's file server, which can be accessed by going to the Council's Web site at http://www.gulfcouncil.org and clicking on FTP Server under Quick Links. For meeting materials, select the “Briefing Books/Briefing Book 2016-04” folder on Gulf Council file server. The username and password are both “gulfguest”. The meetings will be webcast over the internet. A link to the webcast will be available on the Council's Web site, http://www.gulfcouncil.org.

    Although other non-emergency issues not contained in this agenda may come before this Council for discussion, those issues may not be the subjects of formal action during this meeting. Council action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Act, provided that the public has been notified of the Council's intent to take final action to address the emergency.

    Special Accommodations

    This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Kathy Pereira (see ADDRESSES) at least 5 days prior to the meeting date.

    Dated: March 15, 2016. Jeffrey N. Lonergan, Acting Deputy Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2016-06218 Filed 3-18-16; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XE395 Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Port of Kalama Expansion Project on the Lower Columbia River AGENCY:

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

    ACTION:

    Notice; proposed incidental harassment authorization; request for comments.

    SUMMARY:

    NOAA Fisheries has received an application from the Port of Kalama (POK) for an Incidental Harassment Authorization (IHA) to take marine mammals, by harassment, incidental to Port of Kalama Expansion Project. Pursuant to the Marine Mammal Protection Act (MMPA), NOAA Fisheries is requesting comments on its proposal to issue an IHA to the POK to incidentally take, by Level B Harassment only, marine mammals during the in-water construction of Kalama Marine Manufacturing and Export Facility during the 2016-2017. Work is anticipated to occur between September 1, 2016 and January 31, 2017. The authorization for this proposed project would be 120 days of in-water work between September 1, 2016 through August 31, 2017 to account for the possible need to vary the schedule due to logistics and weather. Per the Marine Mammal Protection Act, we are requesting comments on our proposal to issue and Incidental Harassment Authorization to the Port of Kalama to incidentally take, by Level B harassment only, 3 species of marine mammals during the specified activity. NOAA Fisheries does not expect, and is not proposing to authorize, Level A harassment (injury), serious injury, or mortality as a result of the proposed activity.

    DATES:

    Comments and information must be received no later than April 20, 2016.

    ADDRESSES:

    Comments on the application should be addressed to Jolie Harrison, Chief, Permits and Conservation Division, Office of Protected Resources, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910. The mailbox address for providing email comments is [email protected] Comments sent via email, including all attachments, must not exceed a 25-megabyte file size. NOAA Fisheries is not responsible for comments sent to addresses other than those provided here.

    Instructions: All comments received are a part of the public record and will generally be posted to http://www.NOAAFisheries.noaa.gov/pr/permits/incidental.htm without change. All Personal Identifying Information (for example, name, address, etc.) voluntarily submitted by the commenter may be publicly accessible. Do not submit Confidential Business Information or otherwise sensitive or protected information.

    An electronic copy of the application may be obtained by writing to the address specified above, telephoning the contact listed below (see FOR FURTHER INFORMATION CONTACT), or visiting the internet at: http://www.NOAA Fisheries.noaa.gov/pr/permits/incidental.htm. Documents cited in this notice may also be viewed, by appointment, during regular business hours, at the aforementioned address.

    FOR FURTHER INFORMATION CONTACT:

    Zachary Hughes, Office of Protected Resources, NOAA Fisheries, (301) 427-8401.

    SUPPLEMENTARY INFORMATION: Background

    Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) direct the Secretary of Commerce to allow, upon request, the incidental, but not intentional, taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if certain findings are made and either regulations are issued or, if the taking is limited to harassment, a notice of a proposed authorization is provided to the public for review.

    An authorization for incidental takings shall be granted if NOAA Fisheries finds that the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant), and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such takings are set forth. NOAA Fisheries has defined “negligible impact” in 50 CFR 216.103 as “an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.”

    Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as: Any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild [Level A harassment]; or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering [Level B harassment].

    Summary of Request

    On September 28, 2015, NOAA Fisheries received an application from the Port of Kalama (POK) for the taking of marine mammals incidental to the construction of a new pier. On December 10, 2015, a final revised version of the application was submitted and NOAA Fisheries determined that the application was adequate and complete.

    The POK proposes to construct the Kalama Marine Manufacturing and Export Facility, including a new marine terminal, for the export of methanol. The proposed action also includes the installation of engineered log jams, restoration of riparian wetlands, and the removal of existing wood piles in a side channel as mitigation activities. The proposed activity is expected to occur during the 2016-2017 in-water work season for ESA listed fish species (September 1 through January 31). This proposed IHA covers from September 1, 2016 to August 31, 2017 to allow for adjustments to the schedule in-water work based on logistics, weather, and contractor needs. It is possible that the work would require a second season, at which time the applicant will seek another IHA covering the second season. The following specific aspects of the proposed activities are likely to result in the take of marine mammals: Impact pile driving, vibratory pile driving, and vibratory pile extraction. Take, by Level B Harassment only, of individuals of harbor seals (Phoca vitulina), Steller sea lions (Eumetopias jubatus), and California sea lions (Zalophus californianus) is anticipated to result from the specified activity.

    Description of the Specified Activity Overview

    The Port of Kalama proposes to construct the Kalama Manufacturing and Marine Export Facility to manufacture and export methanol. This project consists of the upland facility for the manufacture of methanol (see application for more detail on the upland components of the proposed action), the construction of a marine terminal for the export of methanol, and associated compensatory mitigation activities for the purpose of offsetting habitat effects from the proposed action. The marine terminal will be approximately 45,000 square feet in size, supported by 320 concrete piles (24 inch precast octagonal piles) and 16 steel pipe piles (12 x 12 inch and 4 x 18-inch). In order to provide full access to the marine terminal, the adjacent waters of the Columbia River will be dredged to −48 MLLW, with an estimated 126,000 cubic yards of sediment needing to be removed.

    The compensatory mitigation includes installation of eight engineered log jams (ELJs), which will be anchored by untreated wooden piles driven in by impact pile driving at low tides and not in-water. The proposed compensatory mitigation also includes the removal of approximately 320 untreated wooden piles from and abandoned U.S. Army Corps of Engineers dike in a nearby backwater area. These piles will be removed either by direct pull or vibratory extraction. Finally, the compensatory mitigation includes wetland restoration and enhancement by removal of invasive species and replacement with native wetland species.

    According to the application, the proposed action is important to meet the growing global demand for methanol as a lower greenhouse gas emitting feedstock (as compared to coal) used for the production of olefins, and important for the economic development of the local community.

    Dates and Duration

    The proposed action will result in increased sound energy throughout the work window (September 1 through August 31) during the 2016-2017 season, and work may possibly extend into the next season and require the issuance of a separate IHA for an additional year for the 2017-2018 work season. The proposed IHA would cover the period beginning September 1, 2016 through August 31, 2017. Construction of the pier and associated compensatory mitigation will require both impact and vibratory pile driving. Pile driving may occur every day during the approved work window and throughout daylight hours. The zone of potential harassment will be centered at the port facility, approximately at river mile 72, and may affect all waters within direct line of site from the project, ensonifying approximately 7.3 km2 acres of tidally influenced riverine habitat above the Level B harassment threshold. This IHA, which would authorize take incidental to the first year of work for this project would be valid for a period of one year from the date of issuance.

    Specified Geographic Region

    The proposed action will take place on approximately 100 acres (including uplands) at the northern end of the Port of Kalama's North Port site (Lat. 46.049, Long. −122.874), located at approximately river mile 72 along the lower Columbia River along the east bank in Cowlitz County, Washington (Figure 1). The area of potential impact will extend by line of sight from the proposed action location to the nearest shoreline, and includes approximately 1800 acres of tidally influenced river habitat (see application, Figure 15).

    EN21MR16.004 Detailed Description of Activities

    The proposed upland project is designed to produce up to 10,000 metric tons per day of methanol from natural gas. The proposed manufacturing facility will have two production lines, each with a production capacity of 5,000 metric tons per day. The project site and infrastructure will be developed initially to accommodate both production lines. The anticipated yearly production at full capacity is approximately 3.6 million metric tons of methanol. The methanol will be stored in non-pressurized aboveground storage tanks with a total capacity of approximately 200,000 tons and will be surround by a containment area. Methanol will be transferred by pipeline from the storage area to a deep draft marine terminal to be constructed by the Port on the Columbia River. The facility will receive natural gas via pipeline that will undergo a separate permitting process under the jurisdiction of the Federal Energy Regulatory Commission.

    In order to provide electric service to the proposed project, it is expected that the Cowlitz Public Utility District (PUD) will upgrade an existing transmission line from its existing Kalama Industrial Substation to the project site by installing new lines on existing towers within the existing transmission line corridor. Any new equipment (such as breakers and switches), would be installed at the Kalama Industrial Substation within the existing footprint. Cowlitz PUD may also provide redundant electrical supply by constructing a new short transmission line of approximately 750 feet crossing the adjacent I-5 and railroad.

    The propose project includes both upland and marine components. This document focuses on the riverine components, as those are most relevant in determining the potential for effects to marine mammals. The major upland components are briefly summarized here for reference:

    —Methanol production components ○ Two methanol production lines; ○ Interconnecting facilities, including piping, product pipelines, electrical, and control systems; ○ Eight finished product storage tanks within a containment area and additional tanks (rework tanks and shift tanks) for storing raw methanol during the manufacturing process; ○ Cooling towers for industrial process water cooling; ○ Steam boilers; ○ Two air separation units; ○ Flare system for the disposable flammable gases during startup, shutdown, and malfunctions; —Power generation facility; —Fire suppression infrastructure and risk management; —Water supply and treatment components; ○ Process water supply wells, treatment system, storage tanks, and distribution network; ○ Industrial process water treatment and disposal system; ○ Stormwater treatment, infiltration pond and disposal system; —Support buildings and accessory facilities; ○ Security gate houses, laboratory, control rooms, warehouses, and other buildings and enclosures; ○ Lay-down areas for construction activities, plant maintenance, and spare part storage; ○ Electrical substation; ○ Natural gas meter station and transfer equipment; ○ Emergency generators; —Site access ways and public recreation access.

    This document will review in depth the construction activities that may impact marine mammals, listed as follows:

    —Construction of the marine terminal including a single berth and dock with methanol loading equipment; —Berth dredging; —Compensatory mitigation activities.

    Proposed in-water work will be conducted only during the in-water work window that is ultimately approved for this project. The currently published in-water work window for this reach of the Columbia River is 1 November-28 February. However, regulatory agencies, including the USACE, Washington Department of Fish and Wildlife (WDFW), US Fish and Wildlife Service (USFWS), and NOAA Fisheries, have recently suggested making modifications to the window to take into account the best available science and to address newly listed species. The following work windows are proposed for this project, as explained further below:

    —Pile installation will be conducted between 1 September and 31 January; —Dredging will be conducted between 1 August and 31 December; —ELJ installation will be conducted between 1 August and 31 December; —Compensatory mitigation pile removal may be conducted year-round; —Work conducted below the OHWM, but outside the wetted perimeter of the river (in the dry) may be conducted year-round.

    The proposed project may be built out in either one or two phases. The construction duration would be 26 to 48 months in total, with construction scheduled to begin in 2016 and completed between 2018 and 2020. In water construction activities are expected to take 120 days (not necessarily consecutive) during the 2016-2017 and/or 2017-2018 in-water work windows. Any in-water work that may result in the harassment of marine mammals will be conducted during daylight hours.

    Marine Terminal Construction

    The proposed marine terminal will be located along the shoreline and will consist of a single berth to accommodate oceangoing tankers arriving from the Pacific Ocean via the Columbia River navigation channel and designed for methanol storage that will transport methanol to destination ports. The marine terminal will include a dock, a berth, loading equipment, utilities, and a stormwater system. The components are designed to support the necessary product transfer equipment and safely moor the vessels that may call at the proposed terminal. The marine terminal will provide sufficient clearances from the existing North Port dock and space that will be required for vessel maneuvering during berthing and departure. The proposed terminal will accommodate vessels ranging in size from 45,000 to 127,000 DWT, which would include vessels measuring from approximately 600 to 900 feet in length and 106 to 152 feet in width. The Port expects to receive between 3 and 6 vessels per month at the new terminal for the purposes of exporting methanol. The berth may also be used for loading and unloading other types of cargo, vessel supply operations, as a lay berth, vessel moorage, and for topside vessel maintenance activities.

    The dock structure will consist of an access trestle extending from the shoreline to provide vehicle, equipment, and emergency access to the dock. The trestle will be 34 feet wide by 365 feet long. From the access trestle, the berth face of the dock will extend approximately 530 feet downstream, and will consist of an 100 by 54-foot transition platform, a 370 by 36-foot berth trestle, and a 100 by 112-foot turning platform. The dock will be supported by precast 24-inch precast octagonal concrete piles supporting cast-in-place concrete pile caps, and precast, pre-stressed, haunched concrete deck panels. The dock will total approximately 45,000 square feet and includes 320 concrete piles and 16 steel pipe piles in total. The bottom of the superstructure will be located above the ordinary high water mark.

    For vessel mooring, two 15-foot by 15-foot breasting dolphins will be constructed near the center of the berth trestle. Steel plates will bridge the short distance between the dock and dolphins. Each breasting dolphin will consist of seven, 24-inch precast, pre-stressed concrete battered 3 piles supporting a cast-in-place concrete pile cap with mooring bollards.

    Four 15-foot by 15-foot mooring dolphins will be constructed (2 upstream and 2 downstream of the platforms) for securing bow and/or stern lines. Each mooring dolphin will consist of twelve 24-inch octagonal diameter concrete piles supporting a cast-in-place concrete pile cap. The dolphins will be equipped with mooring bollards and electric capstans. Access to the mooring dolphins will be provided from the platform by trussed walkways with open grating surfaces. The walkways will be 3 feet wide with a combined length of 375 feet and will be supported by four 18-inch diameter steel pipe piles.

    The fender system will consist of 9-foot by 9-foot ultra-high molecular weight polyethylene face panels with a super cone fender unit and two 12-inch diameter steel pipe fender piles. Below the fender panels, the fender piles will have 18-inch-diameter high-density polyethylene sleeves. Fender units will be placed on the dock face, two upstream and two downstream, and on the two breasting dolphins.

    A small building will be constructed on a corner of the turning platform. The building will function as a shelter from the weather and a small lunch area for the dockworkers and as a place to store tools and supplies. A second small building will be constructed at the center of the dock, adjacent to the loading arms. The building will be used as an operations shack for the loading arms. Electricity and communications services will be provided to the pier buildings, but no water or sewer services would be provided.

    Stormwater from the dock will be collected and conveyed to upland treatment and infiltration swale. The stormwater system will also accommodate stormwater from the existing North Port dock, which is currently infiltrated in an upland swale that will be removed for the development.

    Since pile layout is conceptual, a 10 percent contingency has been added for the estimated number of concrete piles. This will accommodate potential revisions to the pile layout and configuration as the structural design is finalized. The project may also require the installation of temporary piles during construction. Temporary piles are typically steel pipe or h-piles and will be driven with a vibratory hammer. These are placed and removed as necessary during the pile driving and overwater construction process. With the addition of the contingency, the proposed terminal will require the installation of approximately 320, 24-inch concrete piles; 12, 12-inch steel pipe piles; and 4, 18-inch steel pipe piles. Additional information regarding the specific design elements of the proposed project can be found in the application from the applicant.

    Piles will be installed using vibratory and/or impact hammers (depending upon pile type, as described below), most likely operated from a barge. Piles will most likely be transported to the site and stored on site on a work barge. The contractor's water-based equipment will be a barge-mounted crane with pile-driving equipment and a materials barge with piles. At times, a second barge-mounted crane may be on site with an additional materials barge.

    Concrete piles will be installed with an impact hammer. A bubble curtain will not be used during impact driving of concrete piles, as impact installation of concrete piles does not generate underwater sound pressure levels that are injurious to marine mammals. A conservative estimate is that up to a maximum of 6 to 8 piles will be impact-driven per day, with an estimated maximum of approximately 1,025 strikes per pile. Based on these estimates, it is assumed that up to approximately 8,200 strikes per day might be necessary to impact-drive concrete piles to their final tip elevation. Actual pile driving rates will vary, and a typical day will involve fewer piles and fewer strikes.

    It is anticipated that all steel piles will be driven with a vibratory hammer, and that it will not be necessary to impact drive or impact proof any of the steel piles. If it does become necessary to impact-drive steel piles, a bubble curtain or similarly effective noise attenuation device will be employed to reduce the potential for effects from temporarily elevated underwater noise levels. In addition, the project may require the installation of temporary piles during construction. Temporary piles are typically steel pipe or h-piles and will be driven with a vibratory hammer. These are placed and removed as necessary during the pile driving and overwater construction process.

    All pile installation will be conducted during the in-water work window (September 1 through January 31).

    Berth Dredging

    The existing berth serving the Port's North Port Terminal will be extended downstream to accommodate vessel activities at the new dock. The extended berth area will be deepened to -48 feet Columbia River datum (CRD) with a 2-foot overdredge allowance consistent with the existing berth. The berth will extend at an angle from the edge of the Columbia River navigation channel to the berthing line at the face of the proposed dock. The footprint of the expanded berth will be approximately 18 acres, of which approximately 16 acres will require dredging to achieve the berth depth. Existing water depths in the proposed berth area vary from -50 feet CRD to -39 feet CRD. The total volume to be dredged the first year is approximately 126,000 cubic yards (cy).

    Sediment characterization for dredged material placement suitability was conducted in February 2015 in accordance with the regional Sediment Evaluation Framework, and the sediments to be dredged were found to be suitable for any beneficial reuse. Dredged material will be placed upland at the project site to provide material for construction or for other uses, or it may be placed at existing authorized in-water and upland placement sites. The existing authorized (NWP-1994-462-1) in-water placement locations include: (1) Flow lane placement to restore sediment at a deep scour hole associated with a pile dike at RM 77.48 located on the Oregon side of the river; (2) flow lane placement to restore sediment at a deep scour hole associated with a pile dike at RM 75.63 located on the Washington side of the river; (3) beach nourishment at the Port's shoreline park (Louis Rasmussen Park) at RM 76; and (4) the Ross Island Sand and Gravel disposal site in Portland, Oregon. The anticipated upland placement sites include the South Port site located north of the CHS/TEMCO grain terminal at approximately RM 77 and the project site. Additional in-water and upland sites may be identified and permitted for dredge material placement for general Port maintenance dredging needs in the future.

    Dredged material will be placed upland at the project site to provide material for construction or for other uses, or it may be placed at existing authorized in-water and upland placement sites. The existing authorized (NWP-1994-462-1) in-water placement locations include: (1) Flow lane placement to restore sediment at a deep scour hole associated with a pile dike at RM 77.48 located on the Oregon side of the river; (2) flow lane placement to restore sediment at a deep scour hole associated with a pile dike at RM 75.63 located on the Washington side of the river; (3) beach nourishment at the Port's shoreline park (Louis Rasmussen Park) at RM 76; and (4) the Ross Island Sand and Gravel disposal site in Portland, Oregon. The anticipated upland placement sites include the South Port site located north of the CHS/TEMCO grain terminal at approximately RM 77 and the project site. Additional in-water and upland sites may be identified and permitted for dredge material placement for general Port maintenance dredging needs in the future.

    Dredging is a temporary construction activity, conducted in deep water, which would be expected to have only minor, localized, and temporary effects. No dredging would be conducted in shallow water habitats, and no shallow water habitat would be converted to deep water. Dredging operations maybe completed using either hydraulic or mechanical (clamshell) dredging methods. A hydraulic dredge uses a cutter head on the end of an arm that is buried typically 3 to 6 feet deep in the river bottom and swings in a 250- to 300-foot arc in front of the dredge. Dredge material is sucked up through the cutter head and the pipes, and deposited via pipeline to the placement areas. The hydraulic dredge will also be used for placement of dredge material in the flow-lane, as beach nourishment, or at approved upland sites.

    A mechanical dredge removes material by scooping it up with a bucket. Mechanical dredges include clamshell, dragline, and backhoe dredges. Mechanical dredging is performed using a bucket operated from a crane or derrick that is mounted on a barge or operated from shore. Sediment from the bucket is usually placed directly in an upland area or on a scow or bottom dump (split) barge. In-water placement of the material occurs through opening the bottom doors or splitting the barge. The process of splitting will be tightly controlled to minimize turbidity and the spread of material outside the placement area.

    Upland placement will likely be completed through the use of a hydraulic pipeline. In this method, dredged material is pumped as slurry through a pipeline that floats on the water using pontoons, is submerged, or runs across dry land. Dredged material transported by hydraulic pipeline to an upland management site must be dewatered prior to final placement or rehandling. In this case, dewatering generally will be accomplished using settling ponds or overland flow. Settling ponds are sized based on the settling characteristics of the dredged material and the rate of dredging. Water from the sediments will be either infiltrated to the ground or will be discharged to the river through weirs already constructed at the disposal sites.

    Several BMPs and conservation measures will be implemented to minimize environmental impacts during dredging, and these are described in the application.

    Compensatory Mitigation Activities

    The applicant has incorporated mitigation activities as part of the proposed action. The applicant proposes three categories of activity: (1) Pile removal; (2) construction of engineered log jams (ELJ); and (3) riparian and wetland buffer habitat restoration.

    The Applicant will remove a portion of a row of existing timber piles now located in the freshwater intertidal backwater channel portion of the project site on Port property. The structure is a former trestle, and these piles may be treated with creosote. Piles are estimated to range between 12 and 14 inches in diameter at the mudline. A total of approximately 157 piles will be removed from the structure. There is a second timber pile structure in the backwater, which was previously proposed for removal. This structure is a USACE-owned pile dike, and will not be removed.

    The proposed pile removal will restore a minimum of 123 square feet of benthic habitat, within an area approximately 2.05 acres in size. These piles, in their current configuration, affect the movement of water and sediment into and out of approximately 13 acres of this backwater area (CHE 2015). The removal of the piles will facilitate sediment transport and seasonal flushing of this backwater area, which will help improve water quality and maintain this area as an off-channel refuge for juvenile salmonids in the long term. The piles most likely will be removed by direct pulling. A vibratory hammer may also be used if necessary, and this request assumes that either method could be used.

    In addition to the proposed pile removals, the applicant will install eight ELJs within the nearshore habitat along the Columbia River shoreline adjacent to the site. ELJs are a restoration and mitigation method that helps build high quality fish habitat, develops scour pools, and provides complex cover.

    Each ELJ will measure approximately 20 x 20 feet and be composed of large-diameter untreated logs, logs with root wads attached, small wood debris, and boulders. Logs generally will have a minimum diameter of 20-inches and be 20 feet long. They will be anchored to untreated wood piles driven a minimum of 20 feet into the river stream bed and will be fastened to the piles by drilling holes in the wood and inserting 1-inch through-bolts for attaching chains to secure the wood to the piles. The structures will be installed at or near the mean lower low water mark using vibratory pile driving at low tides, so that the structures are regularly inundated. The logs that comprise the structure will be further bolted together to create a complex crib structure with 2- to 3-inch interstitial spaces. These spaces may be filled with smaller wood debris and/or boulders to enhance structural complexity and capture free-floating wood from the Columbia River.

    Small equipment operated from a barge will be used to construct the ELJs. Anchor piling will be installed either by a vibratory hammer, or will be pushed directly into the substrate with crane-mounted equipment. This request assumes that either method could be used. Logs and debris will be placed using crane-mounted equipment, or similar. Aquatic mitigation construction activities, including vibratory timber pile removal and installation of timber anchor piling outside of the wetted perimeter of the river, and would not generate levels of noise that would harass of marine mammals.

    The Applicant also proposes to conduct riparian enhancement and invasive species management within an area approximately 1.41 acres in size along approximately 700 linear feet of the Columbia River shoreline at the site to further enhance riparian and shoreline habitat at the site. The applicant also proposes to enhance approximately 0.58 acres of wetland buffer at the north end of the site to offset unavoidable wetland buffer impacts. The riparian and wetland buffer habitats will be enhanced by removing invasive species and installing native trees and shrubs that are common to this reach of the Columbia River shoreline and adjacent wetlands. Native plantings proposed for the riparian restoration include black cottonwood and a mix of native willow species including Columbia River willow (Salix fluviatilis), Pacific willow (Salix lasiandra), and Sitka willow (Salix sitchensis). Portions of the wetland buffer will be planted with black cottonwood. Invasive species management at the site will target locally common and aggressive invasive weed species, primarily Scotch broom and Himalayan blackberry (Rubus armeniacus). The restoration sites will be monitored and maintained for 5 years to document proper site establishment.

    Aquatic habitat mitigation construction activities will most likely be conducted using cranes and similar equipment operated from one or more barges temporarily located within the backwater area. Because water depths are relatively shallow in the backwater area where pile removal will be conducted, equipment access to this area may be limited. A small barge will most likely be floated in on a high tide, grounding out if necessary as waters recede. Benthic habitats and native plant communities are not expected to be affected by the barge, as substrates are silt-dominated, and vegetation consists primarily of reed canary grass. If necessary, disturbed areas will be restored to their original or an improved condition after pile removal is complete.

    Description of Marine Mammals in the Area of the Specified Activity

    Marine mammal species that have been observed within the region of activity consist of the harbor seal, California sea lion, and Steller sea lion. Pinnipeds follow prey species into freshwater up to, primarily, the Bonneville Dam (RM 146) in the Columbia River, but also to Willamette Falls in the Willamette River (RM 26). None of the species of marine mammal that occur in the project area are listed under the ESA or is considered depleted or strategic under the MMPA.

    Table 1—Marine Mammal Species Addressed in This IHA Request Species Common name Scientific name ESA Listing status Stock Harbor Seal Phoca vitulina; ssp. richardsi Not Listed OR/WA Coast Stock. California Sea Lion Zalophus californianus Not Listed U.S. Stock. Steller Sea Lion Eumatopius jubatus Not Listed Eastern DPS.

    The sea lion species use this portion of the river primarily for transiting to and from Bonneville Dam, which concentrates adult salmonids and sturgeon returning to natal streams, providing for increased foraging efficiency. The U.S. Army Corps of Engineers (USACE) has conducted surface observations to evaluate the seasonal presence, abundance, and predation activities of pinnipeds in the Bonneville Dam tailrace each year since 2002. This monitoring program was initiated in response to concerns over the potential impact of pinniped predation on adult salmonids passing Bonneville Dam in the spring. An active sea lion hazing, trapping, and permanent removal program was in place below the dam from 2008 through 2013.

    Pinnipeds remain in upstream locations for a couple of days or longer, feeding heavily on salmon, steelhead, and sturgeon, although the occurrence of harbor seals near Bonneville Dam is much lower than sea lions (Stansell et al. 2013). Sea lions congregate at Bonneville Dam during the peaks of salmon return, from March through May each year, and a few California sea lions have been observed feeding on salmonids in the area below Willamette Falls during the spring adult fish migration.

    There are no pinniped haul-out sites in the area of potential effects from the proposed project. The nearest haul-out sites, shared by harbor seals and California sea lions, are near the Cowlitz River/Carroll Slough confluence with the Columbia River, approximately 3.5 miles downriver from the proposed project (Jeffries et al. 2000). The nearest known haul-out for Steller sea lions is a rock formation (Phoca Rock) near RM 132 and the jetty (RM 0) near the mouth of the Columbia River. There are no pinniped rookeries located in or near the region of activity.

    Harbor Seal Species Description

    Harbor seals, which are members of the Phocid family (true seals), inhabit coastal and estuarine waters and shoreline areas from Baja California, Mexico to western Alaska. For management purposes, differences in mean pupping date (i.e. birthing), movement patterns, pollutant loads, and fishery interactions have led to the recognition of three separate harbor seal stocks along the west coast of the continental U.S. (Boveng 1988). The three distinct stocks are: (1) Inland waters of Washington (including Hood Canal, Puget Sound, and the Strait of Juan de Fuca out to Cape Flattery), (2) outer coast of Oregon and Washington, and (3) California (Carretta et al. 2014). The seals in the region of activity are from the outer coast of Oregon and Washington stock.

    The average weight for adult seals is about 180 lb (82 kg) and males are slightly larger than females. Male harbor seals weigh up to 245 lb (111 kg) and measure approximately 5 ft (1.5 m) in length. The basic color of harbor seals' coat is gray and mottled but highly variable, from dark with light color rings or spots to light with dark markings.

    Status

    In 1999, the population of the Oregon/Washington coastal stock of harbor seals was estimated at 24,732 animals (Carretta et al. 2014). Although this abundance estimate represents the best scientific information available, per NOAA Fisheries stock assessment policy it is not considered current because it is more than 8 years old. This harbor seal stock includes coastal estuaries (Columbia River) and bays (Willapa Bay and Grays Harbor). Both the Washington and Oregon portions of this stock are believed to have reached carrying capacity and the stock is within its optimum sustainable population level (Jeffries et al. 2003; Brown et al. 2005). Because there is no current estimate of minimum abundance, potential biological removal (PBR) cannot be calculated for this stock. However, the level of human-caused mortality and serious injury is less than ten percent of the previous PBR of 1,343 harbor seals per year (Carretta et al. 2014), and human-caused mortality is considered to be small relative to the stock size. Therefore, the Oregon and Washington outer coast stock of harbor seals are not classified as a strategic stock under the MMPA.

    Behavior and Ecology

    Harbor seals are generally non-migratory with local movements associated with such factors as tides, weather, season, food availability, and reproduction (Bigg 1981). They are not known to make extensive pelagic migrations, although some long distance movement of tagged animals in Alaska (174 km), and along the U.S. west coast (up to 550 km), have been recorded. Harbor seals are coastal species, rarely found more than 12 mi (20 km) from shore, and frequently occupy bays, estuaries, and inlets (Baird 2001). Individual seals have been observed several miles upstream in coastal rivers. Ideal harbor seal habitat includes haul-out sites, shelter during the breeding periods, and sufficient food (Bigg 1981).

    Harbor seals haul out on rocks, reefs, beaches, and ice and feed in marine, estuarine, and occasionally fresh waters. Harbor seals display strong fidelity for haul-out sites (Pitcher and Calkins 1979; Pitcher and McAllister1981), although human disturbance can affect haul-out choice (Harris et al. 2003). Group sizes range from small numbers of animals on intertidal rocks to several thousand animals found seasonally in coastal estuaries. The harbor seal is the most commonly observed and widely distributed pinniped found in Oregon and Washington. Harbor seals use hundreds of sites to rest or haul out along the coast and inland waters of Oregon and Washington, including tidal sand bars and mudflats in estuaries, intertidal rocks and reefs, beaches, log booms, docks, and floats in all marine areas of the two states. Numerous harbor seal haul-out sites are found on intertidal mudflats and sand bars from the mouth of the lower Columbia River to Carroll Slough at the confluence of the Cowlitz and Columbia Rivers.

    Harbor seals mate at sea and females give birth during the spring and summer, although the pupping season varies by latitude. Pupping seasons vary by geographic region with pups born in coastal estuaries (Columbia River, Willapa Bay, and Grays Harbor) from mid-April through June and in other areas along the Olympic Peninsula and Puget Sound from May through September (Jeffries et al. 2000). Suckling harbor seal pups spend as much as forty percent of their time in the water (Bowen et al. 1999).

    Adult harbor seals can be found throughout the year at the mouth of the Columbia River. Peak harbor seal abundances in the Columbia River occur during the winter and spring when a number of upriver haul-out sites are used. Peak abundances and upriver movements in the winter and spring months are correlated with spawning runs of eulachon (Thaleichthys pacificus) smelt and out-migration of salmonid smolts.

    Within the region of activity, there are no known harbor seal haul-out sites. The nearest known haul-out sites to the region of activity are located at Carroll Slough at the confluence of the Cowlitz and Columbia Rivers approximately 3.5 mi (72 km) downriver of the region of activity. The low number of observations of harbor seals at Bonneville Dam over the years, combined with the fact that no pupping or haul-out locations are within or upstream from the region of activity, suggest that very few harbor seals transit through the region of activity (Stansell et al. 2013).

    Acoustics

    In air, harbor seal males produce a variety of low-frequency (less than 4 kHz) vocalizations, including snorts, grunts, and growls. Male harbor seals produce communication sounds in the frequency range of 100-1,000 Hz (Richardson et al. 1995). Pups make individually unique calls for mother recognition that contain multiple harmonics with main energy below 0.35 kHz (Bigg 1981). Harbor seals hear nearly as well in air as underwater and have lower thresholds than California sea lions (Kastak and Schusterman 1998). Kastak and Schusterman (1998) reported airborne low frequency (100 Hz) sound detection thresholds at 65 dB for harbor seals. In air, they hear frequencies from 0.25-30 kHz and are most sensitive from 6-16 kHz (Wolski et al. 2003).

    Adult males also produce underwater sounds during the breeding season that typically range from 0.25-4 kHz (duration range: 0.1 s to multiple seconds; Hanggi and Schusterman 1994). Hanggi and Schusterman (1994) found that there is individual variation in the dominant frequency range of sounds between different males, and Van Parijs et al. (2003) reported oceanic, regional, population, and site-specific variation that could be vocal dialects. In water, they hear frequencies from 1-75 kHz (Southall et al. 2007) and can detect sound levels as weak as 60-85 dB within that band. They are most sensitive at frequencies below 50 kHz; above 60 kHz sensitivity rapidly decreases.

    California Sea Lions Species Description

    California sea lions are members of the Otariid family (eared seals). The breeding areas of the California sea lion are on islands located in southern California, western Baja California, and the Gulf of California (Carretta et al. 2014). These three geographic regions are used to separate this subspecies into three stocks: (1) The U.S. stock begins at the U.S./Mexico border and extends northward into Canada, (2) the Western Baja California stock extends from the U.S./Mexico border to the southern tip of the Baja California peninsula, and (3) the Gulf of California stock which includes the Gulf of California from the southern tip of the Baja California peninsula and across to the mainland and extends to southern.

    The California sea lion is sexually dimorphic. Males may reach 1,000 lb (454 kg) and 8 ft (2.4 m) in length; females grow to 300 lb (136 kg) and 6 ft (1.8 m) in length. Their color ranges from chocolate brown in males to a lighter, golden brown in females. At around 5 years of age, males develop a bony bump on top of the skull called a sagittal crest. The crest is visible in the dog-like profile of male sea lion heads, and hair around the crest gets lighter with age. Status—The U.S. stock of California sea lions is estimated at 296,750 and the minimum population size of this stock is 153,337 individuals (Carretta et al. 2014). The current estimate of human induced mortality for California sea lions is on average 431 animals per year (Carretta et al. 2014). California sea lions are not considered a strategic stock under the MMPA because total human-caused mortality is still very likely to be less than the PBR of 9200 animals per year (Carretta et al. 2014).

    Behavior and Ecology

    During the summer, the U.S. stock of California sea lions breed on the primary rookeries on the Channel Islands, and seldom travel more than about 31 mi (50 km) from the islands (Carretta et al. 2014). Their distribution shifts to the northwest in fall and to the southeast during winter and spring, probably in response to changes in prey availability (Bonnell and Ford 1987). The non-breeding distribution extends from Baja California north to Alaska for males, and encompasses the waters of California and Baja California for females (Carretta et al. 2014). In the non-breeding season, an estimated 3,000 to 5,000 adult and sub-adult males migrate northward along the coast to central and northern California, Oregon, Washington, and Vancouver Island from September to May (Jeffries et al. 2000) and return south the following spring.

    California sea lions do not breed in the Columbia River. Though a few young animals may remain in Oregon during summer months, most return south for the breeding season (ODFW, 2015). Male California sea lions are commonly seen in Oregon from September through May. During this time period California sea lions can be found in many bays, estuaries and on offshore sites along the coast, often hauled-out in the same locations as Steller sea lions. Some pass through Oregon to feed along coastal waters to the north during fall and winter months.

    California sea lions feed on a wide variety of prey, including many species of fish and squid. In some locations where salmon runs exist, California sea lions also feed on returning adult and out-migrating juvenile salmonids. Sexual maturity occurs at around 4-5 years of age for California sea lions. California sea lions are gregarious during the breeding season and social on land during other times.

    California sea lions are known to occur in several areas of the Columbia River during much of the year, except the summer breeding months of June through August. Approximately 1,000 California sea lions have been observed at haul-out sites at the mouth of the Columbia River, while approximately 100 individuals have been observed in past years at the Bonneville Dam between January and May prior to returning to their breeding rookeries in California at the end of May (Stansell et al. 2013). The nearest known haul-out sites to the region of activity are near the Cowlitz River/Carroll Slough confluence with the Columbia River, approximately 3.5 miles downriver of the proposed action (Jeffries et al. 2000).

    The USACE's intensive sea lion monitoring program began as a result of the 2000 Federal Columbia River Power System (FCRPS) biological opinion, which required an evaluation of pinniped predation in the tailrace of Bonneville Dam. The objective of the study was to determine the timing and duration of pinniped predation activity, estimate the number of fish caught, record the number of pinnipeds present, identify and track individual California sea lions, and evaluate various pinniped deterrents used at the dam (Tackley et al. 2008). The study period for monitoring was January 1 through May 31, beginning in 2002. During the study period, pinniped observations began after consistent sightings of at least one animal occurred. Tackley et al. (2008) note that sightings began earlier each year from 2002 to 2004. Although some sightings were reported earlier in the season, full-time observations began March 21 in 2002, March 3 in 2003, and February 24 in 2004 (Tackley et al. 2008). In 2005 observations began in April, but in 2006 through 2012 observations began in January or early February (Tackley et al. 2008; Stansell et al. 2013). In 2012, 39 California sea lions were observed at Bonneville Dam, the fewest since 2002 (Stansell et al. 2013). However, in 2010, 89 California sea lion individuals were observed at Bonneville Dam (Stansell et al. 2013).

    California sea lion daily abundance estimates at Bonneville Dam are compiled in Stansell et al. (2013, Figure 1) from the reports listed in the preceding paragraph. If arrival and departure dates were not available, the timing of surface observations within the January through May study period were recorded. Because regular observations in the study period generally began as California sea lions were observed below Bonneville Dam, and sometimes reports stated that observations stopped as sea lion numbers dropped, the observation dates only give a general idea of first arrival and departure. Because tracking data indicate that sea lions travel at fast rates between hydrophone locations above and below the POK project area, dates of first arrival at Bonneville Dam and departure from the dam are assumed to coincide closely with potential passage timing through the POK project area.

    Based on the information presented in Stansell et al. (2013), California sea lions have generally been observed at Bonneville Dam between early January and early June, although beginning in 2008, a few individuals have been noted at the dam as early as September and as late as August. Therefore, the majority of California sea lions are expected to pass the project site beginning in early January through early June. Stansell et al. (2013) shows that California sea lion abundance below Bonneville Dam peaks in April, when it drops through about the end of May. Wright et al. (2010) reported a median start date for the southbound migration from the Columbia River to the breeding grounds of May 20 (range: May 7 to May 27; n = 8 sea lions).

    The highest number of California sea lions observed in the Bonneville Dam tailrace over the last 9 years was 104 in 2003 (Stansell et al. 2013). However, Tackley et al. (2008) noted that numbers of sea lions estimated from early study years were likely underestimated, because the observers' ability to uniquely identify individuals increased over the years. In addition, the high number of 104 individuals present below the dam in 2003 occurred prior to hazing (2005) or permanent removal (2008) activities began. The high after both hazing and removal programs were implemented has been 89 individuals in a year in 2010 (Stansell et al. 2013).

    Acoustics

    On land, California sea lions make incessant, raucous barking sounds; these have most of their energy at less than 2 kHz (Schusterman and Balliet 1969). Males vary both the number and rhythm of their barks depending on the social context; the barks appear to control the movements and other behavior patterns of nearby conspecifics (Schusterman, 1977). Females produce barks, squeals, belches, and growls in the frequency range of 0.25-5 kHz, while pups make bleating sounds at 0.25-6 kHz. California sea lions produce two types of underwater sounds: Clicks (or short-duration sound pulses) and barks (Schusterman and Balliet 1969). All of these underwater sounds have most of their energy below 4 kHz (Schusterman and Balliet 1969).

    The range of maximal hearing sensitivity for California sea lions underwater is between 1-28 kHz (Schusterman et al. 1972). Functional underwater high frequency hearing limits are between 35-40 kHz, with peak sensitivities from 15-30 kHz (Schusterman et al. 1972). The California sea lion shows relatively poor hearing at frequencies below 1 kHz (Kastak and Schusterman 1998). Peak hearing sensitivities in air are shifted to lower frequencies; the effective upper hearing limit is approximately 36 kHz (Schusterman, 1974). The best range of sound detection is from 2-16 kHz (Schusterman, 1974). Kastak and Schusterman (2002) determined that hearing sensitivity generally worsens with depth—hearing thresholds were lower in shallow water, except at the highest frequency tested (35 kHz), where this trend was reversed. Octave band sound levels of 65-70 dB above the animal's threshold produced an average temporary threshold shift (TTS; discussed later in Potential Effects of the Specified Activity on Marine Mammals) of 4.9 dB in the California sea lion (Kastak et al. 1999).

    Steller Sea Lions Species Description

    Steller sea lions are the largest members of the Otariid (eared seal) family. Steller sea lions show marked sexual dimorphism, in which adult males are noticeably larger and have distinct coloration patterns from females. Males average approximately 1,500 lb (680 kg) and 10 ft (3 m) in length; females average about 700 lb (318 kg) and 8 ft (2.4 m) in length. Adult females have a tawny to silver-colored pelt. Males are characterized by dark, dense fur around their necks, giving a mane-like appearance, and light tawny coloring over the rest of their body. Steller sea lions are distributed mainly around the coasts to the outer continental shelf along the North Pacific Ocean rim from northern Hokkaido, Japan through the Kuril Islands and Okhotsk Sea, Aleutian Islands and central Bering Sea, southern coast of Alaska and south to California. The population is divided into the Western and the Eastern Distinct Population Segments (DPSs) at 144° W (Cape Suckling, Alaska). The Western DPS includes Steller sea lions that reside in the central and western Gulf of Alaska, Aleutian Islands, as well as those that inhabit coastal waters and breed in Asia (e.g. Japan and Russia). The Eastern DPS extends from California to Alaska, including the Gulf of Alaska.

    Status

    Steller sea lions were listed as threatened range-wide under the ESA in 1990. After genetics work identified strong genetic separation between two distinct populations (Allen and Angliss 2015), the species was divided into two stocks, with the western stock listed as endangered under the ESA in 1997 with the eastern stock remaining listed as threatened. After receiving a petition for delisting, NOAA Fisheries evaluated the eastern stock and found it suitable for delisting, which was completed in 2013. However, the eastern stock of Steller sea lions is still considered depleted under the MMPA. Animals found in the region of activity are from the eastern stock. The eastern stock breeds in rookeries located in southeast Alaska, British Columbia, Oregon, and California; there are no rookeries located in Washington or in the Columbia River (Allen and Angliss 2015).

    The abundance of the Eastern DPS of Steller sea lions is increasing throughout the northern portion of its range (Southeast Alaska and British Columbia), and stable or increasing slowly in the central portion (Oregon through central California). In the southern end of its range (Channel Islands in southern California), it has declined significantly since the late 1930s, and several rookeries and haul-outs have been abandoned (Allen and Angliss 2015). The most recent stock assessment report estimated the population for Steller sea lions to be between 60,131 and 74,448 animals (Allen and Angliss 2015). This stock has been increasing approximately four percent per year over the entire range since the late 1970s (Allen and Angliss 2015). The most recent minimum population estimate for the eastern stock is 59,968 individuals, with actual population estimated to be within the range 58,334 to 72,223 (Allen and Angliss 2015).

    Behavior and Ecology

    Steller sea lions forage near shore and in pelagic waters. They are capable of traveling long distances in a season and can dive to approximately 1,300 ft (400 m) in depth. They also use terrestrial habitat as haul-out sites for periods of rest, molting, and as rookeries for mating and pupping during the breeding season. At sea, they are often seen alone or in small groups, but may gather in large rafts at the surface near rookeries and haul-outs. Steller sea lions prefer the colder temperate to sub-arctic waters of the North Pacific Ocean. Haul-outs and rookeries usually consist of beaches (gravel, rocky or sand), ledges, and rocky reefs. In the Bering and Okhotsk Seas, sea lions may also haul-out on sea ice, but this is considered atypical behavior.

    Steller sea lions are gregarious animals that often travel or haul out in large groups of up to 45 individuals (Keple 2002). At sea, groups usually consist of female and subadult males; adult males are usually solitary while at sea (Loughlin 2002). In the Pacific Northwest, breeding rookeries are located in British Columbia, Oregon, and northern California. Steller sea lions form large rookeries during late spring when adult males arrive and establish territories (Pitcher and Calkins 1979). Large males aggressively defend territories while non-breeding males remain at peripheral sites or haul-outs. Females arrive soon after and give birth. Most births occur from mid-May through mid-July, and breeding takes place shortly thereafter. Most pups are weaned within a year. Non-breeding individuals may not return to rookeries during the breeding season but remain at other coastal haul-outs (Scordino 2006).

    Steller sea lions are opportunistic predators, feeding primarily on fish and cephalopods, and their diet varies geographically and seasonally. Foraging habitat is primarily shallow, nearshore and continental shelf waters; freshwater rivers; and also deep waters (Scordino, 2010).

    In Oregon, Steller sea lions are found on offshore rocks and islands. Most of these haul-out sites are part of the Oregon Islands National Wildlife Refuge and are closed to the public. Oregon is home to the largest breeding site in U.S. waters south of Alaska, with breeding areas at Three Arch Rocks (Oceanside), Orford Reef (Port Orford), and Rogue Reef (Gold Beach). Steller sea lions are also found year-round in smaller numbers at Sea Lion Caves and at Cape Arago State Park.

    Although Steller sea lions occur primarily in coastal habitat in Oregon and Washington, they are present year-round in the lower Columbia River, usually downstream of the confluence of the Cowlitz River. However, adult and subadult male Steller sea lions have been observed at Bonneville Dam, where they prey primarily on sturgeon and salmon that congregate below the dam. In 2002, the USACE began monitoring seasonal presence, abundance, and predation activities of marine mammals in the Bonneville Dam tailrace (Stansell et al. 2013). Steller sea lions have been documented every year since 2003; observations have steadily increased to maximum of 89 Steller sea lions in 2011 (Stansell et al. 2013).

    Steller sea lions use the Columbia River for travel, foraging, and resting as they move between haul-out sites and the dam. There are no known haul-out sites within the portions of the region of activity occurring in the Columbia River. The nearest known haul-out in the Columbia River is a rock formation (Phoca Rock) approximately 8 miles downstream of Bonneville Dam (approximately 66 miles upstream from the project site). Steller sea lions are also known to haul out on the south jetty at the mouth of the Columbia River, near Astoria, Oregon. There are no rookeries located in or near the region of activity. The nearest Steller sea lion rookery is on the northern Oregon coast at Oceanside (ODFW, 2015), approximately 70 miles south of Astoria, i.e. more than 150 milies from the region of activity.

    Steller sea lions arrive at the dam in late fall (Tackley et al. 2008), although occasionally individuals are sighted near Bonneville Dam in the months of September, October, and November (Stansell et al. 2013). Steller sea lions are present at the dam through May, and can travel between the dam and the mouth of the Columbia River several times during these months (Tackley et al. 2008). Stansell et al. (2013) shows the average abundance of pinnipeds at the Bonneville Dam, showing peak abundance during April. Because tracking data indicate that sea lions travel at fast rates between hydrophone locations above and below the POK project area (Brown et al. 2010), dates of first arrival at Bonneville Dam and departure from the dam are assumed to coincide closely with potential passage timing through the project area.

    Steller sea lions are expected to pass the project site beginning with a few individuals as early as September and most individuals in January through early June. Stansell et al. (2013) show that Steller sea lion abundance below Bonneville Dam increases through approximately mid-April, and then drops through about the end of May.

    Acoustics

    Like all pinnipeds, the Steller sea lion is amphibious; while all foraging activity takes place in the water, breeding behavior is carried out on land in coastal rookeries. On land, territorial male Steller sea lions regularly use loud, relatively low-frequency calls/roars to establish breeding territories (Loughlin et al. 1987). The calls of females range from 0.03 to 3 kHz, with peak frequencies from 0.15 to 1 kHz; typical duration is 1.0 to 1.5 sec (Campbell et al. 2002). Pups also produce bleating sounds. Individually distinct vocalizations exchanged between mothers and pups are thought to be the main modality by which reunion occurs when mothers return to crowded rookeries following foraging at sea (Campbell et al. 2002).

    Mulsow and Reichmuth (2010) measured the unmasked airborne hearing sensitivity of one male Steller sea lion. The range of best hearing sensitivity was between 5 and 14 kHz. Maximum sensitivity was found at 10 kHz, where the subject had a mean threshold of 7 dB. The underwater hearing threshold of a male Steller sea lion was significantly different from that of a female. The peak sensitivity range for the male was from 1 to 16 kHz, with maximum sensitivity (77 dB re: 1μPa-m) at 1 kHz. The range of best hearing for the female was from 16 to above 25 kHz, with maximum sensitivity (73 dB re: 1μPa-m) at 25 kHz. However, because of the small number of animals tested, the findings could not be attributed to either individual differences in sensitivity or sexual dimorphism (Kastelein et al. 2005).

    Sound Primer

    Sound travels in waves, the basic components of which are frequency, wavelength, velocity, and amplitude. Frequency is the number of pressure waves that pass by a reference point per unit of time and is measured in hertz (Hz) or cycles per second. Wavelength is the distance between two peaks or corresponding points of a sound wave (length of one cycle). Higher frequency sounds have shorter wavelengths than lower frequency sounds, and typically attenuate (decrease) more rapidly, except in certain cases in shallower water. Amplitude is the height of the sound pressure wave or the “loudness” of a sound and is typically described using the relative unit of the decibel (dB). A sound pressure level (SPL) in dB is described as the ratio between a measured pressure and a reference pressure (for underwater sound, this is 1 microPascal [μPa]), and is a logarithmic unit that accounts for large variations in amplitude; therefore, a relatively small change in dB corresponds to large changes in sound pressure. The source level (SL) represents the SPL referenced at a distance of 1 m from the source (referenced to 1 μPa), while the received level is the SPL at the listener's position (referenced to 1 μPa).

    Root mean square (rms) is the quadratic mean sound pressure over the duration of an impulse. Rms is calculated by squaring all of the sound amplitudes, averaging the squares, and then taking the square root of the average. Rms accounts for both positive and negative values; squaring the pressures makes all values positive so that they may be accounted for in the summation of pressure levels (Hastings and Popper 2005). This measurement is often used in the context of discussing behavioral effects, in part because behavioral effects, which often result from auditory cues, may be better expressed through averaged units than by peak pressures.

    Sound exposure level (SEL; represented as dB re 1 μPa2-s) represents the total energy contained within a pulse, and considers both intensity and duration of exposure. For a single pulse, the numerical value of the SEL measurement is usually 5-15 dB lower than the rms sound pressure in dB re 1 μPa, with the comparative difference between measurements of rms and SEL measurements often tending to decrease with increasing range (Greene 1997). Peak sound pressure is the maximum instantaneous sound pressure measurable in the water at a specified distance from the source, and is represented in the same units as the rms sound pressure. Another common metric is peak-to-peak sound pressure (p-p), which is the algebraic difference between the peak positive and peak negative sound pressures. Peak-to-peak pressure is typically approximately 6 dB higher than peak pressure (Southall et al. 2007).

    When underwater objects vibrate or activity occurs, sound-pressure waves are created. These waves alternately compress and decompress the water as the sound wave travels. Underwater sound waves radiate in a manner similar to ripples on the surface of a pond and may be either directed in a beam or beams (as for the sources considered here) or may radiate in all directions (omnidirectional sources). The compressions and decompressions associated with sound waves are detected as changes in pressure by aquatic life and man-made sound receptors such as hydrophones.

    Even in the absence of sound from the specified activity, the underwater environment is typically loud due to ambient sound. Ambient sound is defined as environmental background sound levels lacking a single source or point (Richardson et al. 1995), and the sound level of a region is defined by the total acoustical energy being generated by known and unknown sources. These sources may include physical (e.g. waves, earthquakes, ice, atmospheric sound), biological (e.g. sounds produced by marine mammals, fish, and invertebrates), and anthropogenic (e.g. vessels, dredging, construction) sound. A number of sources contribute to ambient sound, including the following (Richardson et al. 1995):

    —Wind and waves: The complex interactions between wind and water surface, including processes such as breaking waves and wave-induced bubble oscillations and cavitation, are a main source of naturally occurring ambient sound for frequencies between 200 Hz and 50 kHz (Mitson1995). In general, ambient sound levels tend to increase with increasing wind speed and wave height. Surf sound becomes important near shore, with measurements collected at a distance of 8.5 km from shore showing an increase of 10 dB in the 100 to 700 Hz band during heavy surf conditions. —Precipitation: Sound from rain and hail impacting the water surface can become an important component of total sound at frequencies above 500 Hz, and possibly down to 100 Hz during quiet times. —Biological: Marine mammals can contribute significantly to ambient sound levels, as can some fish and shrimp. The frequency band for biological contributions is from approximately 12 Hz to over 100 kHz. —Anthropogenic: Sources of ambient sound related to human activity include transportation (surface vessels), dredging and construction, oil and gas drilling and production, seismic surveys, sonar, explosions, and ocean acoustic studies. Vessel noise typically dominates the total ambient sound for frequencies between 20 and 300 Hz. In general, the frequencies of anthropogenic sounds are below 1 kHz and, if higher frequency sound levels are created, they attenuate rapidly. Sound from identifiable anthropogenic sources other than the activity of interest (e.g. a passing vessel) is sometimes termed background sound, as opposed to ambient sound.

    The sum of the various natural and anthropogenic sound sources at any given location and time—which comprise “ambient” or “background” sound—depends not only on the source levels (as determined by current weather conditions and levels of biological and human activity) but also on the ability of sound to propagate through the environment. In turn, sound propagation is dependent on the spatially and temporally varying properties of the water column and sea floor, and is frequency-dependent. As a result of the dependence on a large number of varying factors, ambient sound levels can be expected to vary widely over both coarse and fine spatial and temporal scales. Sound levels at a given frequency and location can vary by 10-20 dB from day to day (Richardson et al. 1995). The result is that, depending on the source type and its intensity, sound from the specified activity may be a negligible addition to the local environment or could form a distinctive signal that may affect marine mammals. Details of source types are described in the following text.

    Sounds are often considered to fall into one of two general types: Pulsed and non-pulsed (defined in the following). The distinction between these two sound types is important because they have differing potential to cause physical effects, particularly with regard to hearing (e.g. Ward 1997 in Southall et al. 2007). Please see Southall et al. (2007) for an in-depth discussion of these concepts.

    Pulsed sound sources (e.g. explosions, gunshots, sonic booms, impact pile driving) produce signals that are brief (typically considered to be less than one second), broadband, atonal transients and occur either as isolated events or repeated in some succession. Pulsed sounds are all characterized by a relatively rapid rise from ambient pressure to a maximal pressure value followed by a rapid decay period that may include a period of diminishing, oscillating maximal and minimal pressures, and generally have an increased capacity to induce physical injury as compared with sounds that lack these features.

    Non-pulsed sounds can be tonal, narrowband, or broadband, brief or prolonged, and may be either continuous or non-continuous. Some of these non-pulsed sounds can be transient signals of short duration but without the essential properties of pulses (e.g. rapid rise time). Examples of non-pulsed sounds include those produced by vessels, aircraft, machinery operations such as drilling or dredging, vibratory pile driving, and active sonar systems (such as those used by the U.S. Navy). The duration of such sounds, as received at a distance, can be greatly extended in a highly reverberant environment.

    When considering the influence of various kinds of sound on the marine environment, it is necessary to understand that different kinds of marine life are sensitive to different frequencies of sound. Based on available behavioral data, audiograms have been derived using auditory evoked potentials, anatomical modeling, and other data, Southall et al. (2007) designate “functional hearing groups” for marine mammals and estimate the lower and upper frequencies of functional hearing of the groups. The functional groups and the associated frequencies are indicated below (though animals are less sensitive to sounds at the outer edge of their functional range and most sensitive to sounds of frequencies within a smaller range somewhere in the middle of their functional hearing range):

    —Phocid pinnipeds in-water: Functional hearing is estimated to occur between approximately 75 Hz and 100 kHz; and —Otariid pinnipeds in-water: Functional hearing is estimated to occur between approximately 100 Hz and 40 kHz.

    As mentioned previously in this document, 3 marine mammal pinniped species are likely to occur in the proposed project area. The affected pinniped species will be considered as a functional group using the greatest range of hearing characteristics (75Hz to 100kHz) for the purpose of analyzing the effects of exposure to sound on marine mammals.

    Potential Effects of the Specified Activity on Marine Mammals and Their Habitat

    This section includes a summary and discussion of the ways that pile driving and dredging components of the specified activity, including mitigation may impact marine mammals and their habitat. The “Estimated Take by Incidental Harassment” section later in this document will include a quantitative analysis of the number of individuals that are expected to be taken by this activity. The “Negligible Impact Analysis” section will include the analysis of how this specific activity will impact marine mammals and will consider the content of this section, the “Estimated Take by Incidental Harassment” section and the “Monitoring and Mitigation” section to draw conclusions regarding the likely impacts of this activity on the reproductive success or survivorship of individuals and from that on the affected marine mammal populations or stocks.

    Acoustic Impacts

    Marine mammals transiting the project location when construction activities are occurring may be exposed to increased sound energy levels that could result in take by Level B harassment. No take by Level A harassment, injury, or mortality is expected from the project. POK's in-water construction and demolition activities (e.g. pile driving and removal) introduce sound into the marine environment, and have the potential to have adverse impacts on marine mammals. The potential effects of sound from the proposed activities associated with the POK project may include one or more of the following: Tolerance; masking of natural sounds; behavioral disturbance; non-auditory physical effects; and temporary or permanent hearing impairment (Richardson et al. 1995). However, for reasons discussed later in this document, it is unlikely that there would be any cases of temporary or permanent hearing impairment resulting from these activities. As outlined in previous NOAA Fisheries documents, the effects of sound on marine mammals are highly variable, and can be categorized as follows (based on Richardson et al. 1995):

    —The sound may be too weak to be heard at the location of the animal (i.e. lower than the prevailing ambient sound level, the hearing threshold of the animal at relevant frequencies, or both); —The sound may be audible but not strong enough to elicit any overt behavioral response; —The sound may elicit reactions of varying degrees and variable relevance to the well-being of the marine mammal; these can range from temporary alert responses to active avoidance reactions such as vacating an area until the stimulus ceases, but potentially for longer periods of time; —Upon repeated exposure, a marine mammal may exhibit diminishing responsiveness (habituation), or disturbance effects may persist; the latter is most likely with sounds that are highly variable in characteristics and unpredictable in occurrence, and associated with situations that a marine mammal perceives as a threat; —Any anthropogenic sound that is strong enough to be heard has the potential to result in masking, or reduce the ability of a marine mammal to hear biological sounds at similar frequencies, including calls from conspecifics and underwater environmental sounds such as surf sound; —If mammals remain in an area because it is important for feeding, breeding, or some other biologically important purpose even though there is chronic exposure to sound, it is possible that there could be sound-induced physiological stress; this might in turn have negative effects on the well-being or reproduction of the animals involved; and —Very strong sounds have the potential to cause a temporary or permanent reduction in hearing sensitivity, also referred to as threshold shift. In terrestrial mammals, and presumably marine mammals, received sound levels must far exceed the animal's hearing threshold for there to be any temporary threshold shift (TTS). For transient sounds, the sound level necessary to cause TTS is inversely related to the duration of the sound. Received sound levels must be even higher for there to be risk of permanent hearing impairment (PTS). In addition, intense acoustic or explosive events may cause trauma to tissues associated with organs vital for hearing, sound production, respiration and other functions. This trauma may include minor to severe hemorrhage. Tolerance

    Numerous studies have shown that underwater sounds from industrial activities are often readily detectable by marine mammals in the water at distances of many kilometers. However, other studies have shown that marine mammals at distances more than a few kilometers away often show no apparent response to industrial activities of various types (Miller et al. 2005). This is often true even in cases when the sounds must be readily audible to the animals based on measured received levels and the hearing sensitivity of that mammal group. Although various baleen whales, toothed whales, and (less frequently) pinnipeds have been shown to react behaviorally to underwater sound from sources such as airgun pulses or vessels under some conditions, at other times, mammals of all three types have shown no overt reactions. In general, pinnipeds seem to be more tolerant of exposure to some types of underwater sound than are baleen whales. Richardson et al. (1995) found that vessel sound does not seem to strongly affect pinnipeds that are already in the water. Richardson et al. (1995) went on to explain that seals on haul-outs sometimes respond strongly to the presence of vessels and at other times appear to show considerable tolerance of vessels.

    Masking

    Masking is the obscuring of sounds of interest to an animal by other sounds, typically at similar frequencies. Marine mammals are highly dependent on sound, and their ability to recognize sound signals amid other sound is important in communication and detection of both predators and prey. Background ambient sound may interfere with or mask the ability of an animal to detect a sound signal even when that signal is above its absolute hearing threshold. Even in the absence of anthropogenic sound, the marine environment is often loud. Natural ambient sound includes contributions from wind, waves, precipitation, other animals, and (at frequencies above 30 kHz) thermal sound resulting from molecular agitation (Richardson et al. 1995).

    Background sound may also include anthropogenic sound, and masking of natural sounds can result when human activities produce high levels of background sound. Conversely, if the background level of underwater sound is high (e.g. on a day with strong wind and high waves), an anthropogenic sound source would not be detectable as far away as would be possible under quieter conditions and would itself be masked. Ambient sound is highly variable on continental shelves. This results in a high degree of variability in the range at which marine mammals can detect anthropogenic sounds.

    Although masking is a phenomenon which may occur naturally, the introduction of loud anthropogenic sounds into the marine environment at frequencies important to marine mammals increases the severity and frequency of occurrence of masking. For example, if a baleen whale is exposed to continuous low-frequency sound from an industrial source, this would reduce the size of the area around that whale within which it can hear the calls of another whale. The components of background noise that are similar in frequency to the signal in question primarily determine the degree of masking of that signal. In general, little is known about the degree to which marine mammals rely upon detection of sounds from conspecifics, predators, prey, or other natural sources. In the absence of specific information about the importance of detecting these natural sounds, it is not possible to predict the impact of masking on marine mammals (Richardson et al. 1995). In general, masking effects are expected to be less severe when sounds are transient than when they are continuous. Masking is typically of greater concern for those marine mammals that utilize low frequency communications, such as baleen whales and, as such, is not likely to occur for pinnipeds in the region of activity.

    Disturbance

    Behavioral disturbance is one of the primary potential impacts of anthropogenic sound on marine mammals. Disturbance can result in a variety of effects, such as subtle or dramatic changes in behavior or displacement, but the degree to which disturbance causes such effects may be highly dependent upon the context in which the stimulus occurs. For example, an animal that is feeding may be less prone to disturbance from a given stimulus than one that is not. For many species and situations, there is no detailed information about reactions to sound.

    Behavioral reactions of marine mammals to sound are difficult to predict because they are dependent on numerous factors, including species, maturity, experience, activity, reproductive state, time of day, and weather. If a marine mammal does react to an underwater sound by changing its behavior or moving a small distance, the impacts of that change may not be important to the individual, the stock, or the species as a whole. However, if a sound source displaces marine mammals from an important feeding or breeding area for a prolonged period, impacts on the animals could be important. In general, pinnipeds seem more tolerant of, or at least habituate more quickly to, potentially disturbing underwater sound than do cetaceans, and generally seem to be less responsive to exposure to industrial sound than most cetaceans. Pinniped responses to underwater sound from some types of industrial activities such as seismic exploration appear to be temporary and localized (Harris et al. 2001; Reiser et al. 2009).

    Because the few available studies show wide variation in response to underwater and airborne sound, it is difficult to quantify exactly how pile driving sound would affect pinnipeds. The literature shows that elevated underwater sound levels could prompt a range of effects, including no obvious visible response, or behavioral responses that may include annoyance and increased alertness, visual orientation towards the sound, investigation of the sound, change in movement pattern or direction, habituation, alteration of feeding and social interaction, or temporary or permanent avoidance of the area affected by sound. Minor behavioral responses do not necessarily cause long-term effects to the individuals involved. Severe responses include panic, immediate movement away from the sound, and stampeding, which could potentially lead to injury or mortality (Southall et al. 2007). Stampeding is not expected to occur because there are no haulouts that will be affected by the proposed action.

    Southall et al. (2007) reviewed literature describing responses of pinnipeds to non-pulsed sound in water and reported that the limited data suggest exposures between approximately 90 and 140 dB generally do not appear to induce strong behavioral responses in pinnipeds, while higher levels of pulsed sound, ranging between 150 and 180 dB, will prompt avoidance of an area. It is important to note that among these studies, there are some apparent differences in responses between field and laboratory conditions. In contrast to the mid-frequency odontocetes, captive pinnipeds responded more strongly at lower levels than did animals in the field. Again, contextual issues are the likely cause of this difference. For airborne sound, Southall et al. (2007) note there are extremely limited data suggesting very minor, if any, observable behavioral responses by pinnipeds exposed to airborne pulses of 60 to 80 dB; however, given the paucity of data on the subject, we cannot rule out the possibility that avoidance of sound in the region of activity could occur.

    In their comprehensive review of available literature, Southall et al. (2007) noted that quantitative studies on behavioral reactions of pinnipeds to underwater sound are rare. A subset of only three studies observed the response of pinnipeds to multiple pulses of underwater sound (a category of sound types that includes impact pile driving), and were also deemed by the authors as having results that are both measurable and representative. However, a number of studies not used by Southall et al. (2007) provide additional information, both quantitative and anecdotal, regarding the reactions of pinnipeds to multiple pulses of underwater sound.

    —Harris et al. (2001) observed the response of ringed, bearded (Erignathus barbatus), and spotted seals (Phoca largha) to underwater operation of a single air gun and an eleven-gun array. Received exposure levels were 160 to 200 dB. Results fit into two categories. In some instances, seals exhibited no response to sound. However, the study noted significantly fewer seals during operation of the full array in some instances. Additionally, the study noted some avoidance of the area within 150 m of the source during full array operations. —Blackwell et al. (2004) is the only cited study directly related to pile driving. The study observed ringed seals during impact installation of steel pipe pile. Received underwater SPLs were measured at 151 dB at 63 m. The seals exhibited either no response or only brief orientation response (defined as “investigation or visual orientation”). It should be noted that the observations were made after pile driving was already in progress. Therefore, it is possible that the low-level response was due to prior habituation. —Miller et al. (2005) observed responses of ringed and bearded seals to a seismic air gun array. Received underwater sound levels were estimated at 160 to 200 dB. There were fewer seals present close to the sound source during air gun operations in the first year, but in the second year the seals showed no avoidance. In some instances, seals were present in very close range of the sound. The authors concluded that there was “no observable behavioral response” to seismic air gun operations. —During a Caltrans installation demonstration project for retrofit work on the East Span of the San Francisco Oakland Bay Bridge, California, sea lions responded to pile driving by swimming rapidly out of the area, regardless of the size of the pile-driving hammer or the presence of sound attenuation devices (74 FR 63724; December 4, 2009). —Jacobs and Terhune (2002) observed harbor seal reactions to acoustic harassment devices (AHDs) with source level of 172 dB deployed around aquaculture sites. Seals were generally unresponsive to sounds from the AHDs. During two specific events, individuals came within 141 and 144 ft (43 and 44 m) of active AHDs and failed to demonstrate any measurable behavioral response; estimated received levels based on the measures given were approximately 120 to 130 dB. —Costa et al. (2003) measured received sound levels from an Acoustic Thermometry of Ocean Climate (ATOC) program sound source off northern California using acoustic data loggers placed on translocated elephant seals. Subjects were captured on land, transported to sea, instrumented with archival acoustic tags, and released such that their transit would lead them near an active ATOC source (at 0.6 mi depth [939 m]; 75-Hz signal with 37.5-Hz bandwidth; 195 dB maximum source level, ramped up from 165 dB over 20 min) on their return to a haul-out site. Received exposure levels of the ATOC source for experimental subjects averaged 128 dB (range 118 to 137) in the 60- to 90-Hz band. None of the instrumented animals terminated dives or radically altered behavior upon exposure, but some statistically significant changes in diving parameters were documented in nine individuals. Translocated northern elephant seals exposed to this particular non-pulse source began to demonstrate subtle behavioral changes at exposure to received levels of approximately 120 to 140 dB.

    Several available studies provide information on the reactions of pinnipeds to non-pulsed underwater sound. Kastelein et al. (2006) exposed nine captive harbor seals in an approximately 82 x 98 ft (25 x 30 m) enclosure to non-pulse sounds used in underwater data communication systems (similar to acoustic modems). Test signals were frequency modulated tones, sweeps, and bands of sound with fundamental frequencies between 8 and 16 kHz; 128 to 130 ±3 dB source levels; 1- to 2-s duration (60-80 percent duty cycle); or 100 percent duty cycle. They recorded seal positions and the mean number of individual surfacing behaviors during control periods (no exposure), before exposure, and in 15-min experimental sessions (n = 7 exposures for each sound type). Seals generally swam away from each source at received levels of approximately 107 dB, avoiding it by approximately 16 ft (5 m), although they did not haul out of the water or change surfacing behavior. Seal reactions did not appear to wane over repeated exposure (i.e. there was no obvious habituation), and the colony of seals generally returned to baseline conditions following exposure. The seals were not reinforced with food for remaining in the sound field.

    Ship and boat sound do not seem to have strong effects on seals in the water, but the data are limited. When in the water, seals appear to be much less apprehensive about approaching vessels. Gray seals (Halichoerus grypus) have been known to approach and follow fishing vessels in an effort to steal catch or the bait from traps. In contrast, seals hauled out on land often are quite responsive to nearby vessels. Terhune (1985) reported that northwest Atlantic harbor seals were extremely vigilant when hauled out and were wary of approaching (but less so passing) boats. Suryan and Harvey (1999) reported that Pacific harbor seals commonly left the shore when powerboat operators approached to observe the seals. Those seals detected a powerboat at a mean distance of 866 ft (264 m), and seals left the haul-out site when boats approached to within 472 ft (144 m).

    Southall et al. (2007) also compiled known studies of behavioral responses of marine mammals to airborne sound, noting that studies of pinniped response to airborne pulsed sounds are exceedingly rare. The authors deemed only one study as having quantifiable results.

    Blackwell et al. (2004) studied the response of ringed seals within 500 m of impact driving of steel pipe pile. Received levels of airborne sound were measured at 93 dB at a distance of 63 m. Seals had either no response or limited response to pile driving. Reactions were described as “indifferent” or “curious.”

    Efforts to deter pinniped predation on salmonids below Bonneville Dam began in 2005, and have used Acoustic Deterrent Devices (ADDs), boat chasing, above-water pyrotechnics (cracker shells, screamer shells or rockets), rubber bullets, rubber buckshot, and beanbags (Stansell et al. 2013). Review of deterrence activities by the West Coast Pinniped Program noted “USACE observations from 2002 to 2008 indicated that increasing numbers of California sea lions were foraging on salmon at Bonneville Dam each year, salmon predation rates increased, and the deterrence efforts were having little effect on preventing predation” (Scordino 2010). In the USACE status report through May 28, 2010, boat hazing was reported to have limited, local, short term impact in reducing predation in the tailrace, primarily from Steller sea lions. ODFW and the WDFW reported that sea lion presence did not appear to be significantly influenced by boat-based activities and several `new' sea lions (initially unbranded or unknown from natural markings) continued to forage in the observation area in spite of shore- and boat-based hazing. They suggested that hazing was not effective at deterring naive sea lions if there were large numbers of experienced sea lions foraging in the area (Brown et al. 2010). Observations on the effect of ADDs, which were installed at main fishway entrances in 2007, noted that pinnipeds were observed swimming and eating fish within 20 ft (6 m) of some of the devices with no deterrent effect observed (Tackley et al. 2008; Stansell et al. 2013). Many of the animals returned to the area below the dam despite hazing efforts (Stansell et al. 2013). Relocation efforts to Astoria and the Oregon coast were implemented in 2007; however, all but one of fourteen relocated animals returned to Bonneville Dam within days (Scordino 2010).

    No information on in-water sound levels of hazing activities at Bonneville Dam has been published other than that ADDs produce underwater sound levels of 205 dB in the 15 kHz range (Stansell et al. 2013). Durations of boat-based hazing events were reported at less than 30 minutes for most of the 521 boat-based events in 2009, but ranged up to 90 minutes (Brown et al. 2009). Durations of boat-based hazing events were not reported for 2010. However, 280 events occurred over 44 days during a five-month period using a total of 4,921 cracker shells, 777 seal bombs, and 97 rubber buckshot rounds (Brown et al. 2010). Based on knowledge of in-water sound from construction activities, the POK project believes that sound levels from in-water construction and demolition activities that pinnipeds would be potentially exposed to are not as high as those produced by hazing techniques.

    In addition, sea lions are expected to quickly traverse through and not remain in the project area. Tagging studies of California sea lions indicate that they pass hydrophones upriver and downriver of the POK project site quickly. Wright et al. (2010) reported minimum upstream and downstream transit times between the Astoria haul-out and Bonneville Dam (river distance approximately 20 km) were 1.9 and 1 day, respectively, based on fourteen trips by eleven sea lions. The transit speed was calculated to be 4.6 km/hr in the upstream direction and 8.8 km/hr in the downstream direction. Data from the six individuals acoustically tagged in 2009 show that they made a combined total of eleven upriver or downriver trips quickly through the POK project site to or from Bonneville Dam and Astoria (Brown et al. 2009). Data from four acoustically tagged California sea lions in 2010 also indicate that the animals move though the area below Bonneville Dam down to the receivers located below the POK project site rapidly both in the upriver or downriver directions (Wright et al. 2010). Although the data apply to California sea lions, Steller sea lions and harbor seals similarly have no incentive to stay near the POK project area, in contrast with a strong incentive to quickly reach optimal foraging grounds at the Bonneville Dam, and are thus expected to also pass the project area quickly. Therefore, pinnipeds are not expected to be exposed to significant duration of construction sound.

    It is possible that deterrence of passage through the project area could be a concern. However, given the 750-m width of the Columbia, with no activity occurring on the opposite bank in the project area, passage should not be hindered. Vibratory installation of steel casings, pipe piles, and sheet piles are calculated to exceed behavioral disturbance thresholds at large distances; thus, the entire width of the channel would be affected by sound above the disturbance threshold. However, because these sound levels are lower than those produced by ADDs at Bonneville Dam—which have shown only limited efficacy in deterring pinnipeds—and because pinnipeds transiting the region of activity will be highly motivated to complete transit, deterrence of passage is not anticipated to occur.

    Vessel Operations

    Various types of vessels, including barges, tug boats, and small craft, would be present in the region of activity at various times. Vessel traffic would continually traverse the in-water POK project area in transit to port facilities upstream of the project location. Such vessels already use the region of activity in moderately high numbers; therefore, the vessels to be used in the region of activity do not represent a new sound source, only a potential increase in the frequency and duration of these sound source types.

    There are very few controlled tests or repeatable observations related to the reactions of pinnipeds to vessel noise. However, Richardson et al. (1995) reviewed the literature on reactions of pinnipeds to vessels, concluding overall that pinnipeds showed high tolerance to vessel noise. One study showed that, in water, sea lions tolerated frequent approach of vessels at close range. Because the region of activity is heavily traveled by commercial and recreational craft, it seems likely that pinnipeds that transit the region of activity are already habituated to vessel noise, thus the additional vessels that would occur as a result of POK project activities would likely not have an additional effect on these pinnipeds. Therefore, POK project vessel noise in the region of activity is unlikely to rise to the level of Level B harassment.

    Dredging

    The proposed project includes up to 126,000 CY of dredging to provide adequate berth depth for the new marine terminal. Noise measurements of dredging activities are rare in the literature, but dredging is considered to be a low-impact activity for marine mammals, producing non-pulsed sound and being substantially quieter in terms of acoustic energy output than sources such as seismic airguns and impact pile driving. Noise produced by dredging operations has been compared to that produced by a commercial vessel travelling at modest speed (Robinson et al., 2011), of which there is high volume in the lower Columbia River (see Vessel Operations, above). Further discussion of dredging sound production may be found in the literature (e.g., Richardson et al., 1995, Nedwell et al., 2008, Parvin et al., 2008, Ainslie et al., 2009). Generally, the effects of dredging on marine mammals are not expected to rise to the level of a take. Therefore, this project component will not be discussed further.

    Physical Disturbance

    Vessels, in-water structures, and over-water structures have the potential to cause physical disturbance to pinnipeds, although in-water and over-water structures would cover no more than 20 percent of the entire channel width at one time. As previously mentioned, various types of vessels already use the region of activity in high numbers. Tug boats and barges are slow moving and follow a predictable course. Pinnipeds would be able to easily avoid these vessels while transiting through the region of activity, and are likely already habituated to the presence of numerous vessels, as the lower Columbia River receives high levels of commercial and recreational vessel traffic. Therefore, vessel strikes are extremely unlikely and, thus, discountable. Potential encounters would likely be limited to brief, sporadic behavioral disturbance, if any at all. Such disturbances are not likely to result in a risk of Level B harassment of pinnipeds transiting the region of activity.

    Hearing Impairment and Other Physiological Effects

    Temporary or permanent hearing impairment is a possibility when marine mammals are exposed to very strong sounds. Non-auditory physiological effects might also occur in marine mammals exposed to strong underwater sound. Possible types of non-auditory physiological effects or injuries that may occur in mammals close to a strong sound source include stress, neurological effects, bubble formation, and other types of organ or tissue damage. It is possible that some marine mammal species (i.e. beaked whales) may be especially susceptible to injury and/or stranding when exposed to strong pulsed sounds, particularly at higher frequencies. Non-auditory physiological effects are not anticipated to occur as a result of POK activities. The following subsections discuss the possibilities of TTS and PTS.

    TTS

    TTS, reversible hearing loss caused by fatigue of hair cells and supporting structures in the inner ear, is the mildest form of hearing impairment that can occur during exposure to a strong sound (Kryter 1985). While experiencing TTS, the hearing threshold rises and a sound must be stronger in order to be heard. TTS can last from minutes or hours to (in cases of strong TTS) days. For sound exposures at or somewhat above the TTS threshold, hearing sensitivity in both terrestrial and marine mammals recovers rapidly after exposure to the sound ends.

    NOAA Fisheries considers TTS to be a form of Level B harassment rather than injury, as it consists of fatigue to auditory structures rather than damage to them. Pinnipeds have demonstrated complete recovery from TTS after multiple exposures to intense sound, as described in the studies below (Kastak et al. 1999, 2005). The NOAA Fisheries-established 190-dB rms SPLcriterion is not considered to be the level above which TTS might occur. Rather, it is the received level above which, in the view of a panel of bioacoustics specialists convened by NOAA Fisheries before TTS measurements for marine mammals became available, one could not be certain that there would be no injurious effects (e.g., PTS), auditory or otherwise, to pinnipeds. Therefore, exposure to sound levels above 190 dB rms does not necessarily mean that an animal has been injured, but rather that it may have occurred and we cannot rule it out.

    Human non-impulsive sound exposure guidelines are based on exposures of equal energy (the same sound exposure level [SEL]; SEL is reported here in dB re: 1 µPa2-s/re: 20 µPa2-s for in-water and in-air sound, respectively) producing equal amounts of hearing impairment regardless of how the sound energy is distributed in time (NIOSH, 1998). Until recently, previous marine mammal TTS studies have also generally supported this equal energy relationship (Southall et al. 2007). Two newer studies, two by Mooney et al. (2009a,b) on a single bottlenose dolphin (Tursiops truncatus) either exposed to playbacks of U.S. Navy mid-frequency active sonar or octave-band sound (4-8 kHz) and one by Kastak et al. (2007) on a single California sea lion exposed to airborne octave-band sound (centered at 2.5 kHz), concluded that for all sound exposure situations, the equal energy relationship may not be the best indicator to predict TTS onset levels. Generally, with sound exposures of equal energy, those that were quieter (lower SPL) with longer duration were found to induce TTS onset more than those of louder (higher SPL) and shorter duration. Given the available data, the received level of a single seismic pulse (with no frequency weighting) might need to be approximately 186 dB SEL in order to produce brief, mild TTS.

    In free-ranging pinnipeds, TTS thresholds associated with exposure to brief pulses (single or multiple) of underwater sound have not been measured. However, systematic TTS studies on captive pinnipeds have been conducted (e.g. Kastak et al. 1999, 2005, 2007; Schusterman et al. 2000; Finneran et al. 2003; Southall et al. 2007). Specific studies are detailed here:

    —Finneran et al. (2003) studied responses of two individual California sea lions. The sea lions were exposed to single pulses of underwater sound, and experienced no detectable TTS at received sound level of 183 dB peak (163 dB SEL).

    There were three studies conducted on pinniped TTS responses to non-pulsed underwater sound. All of these studies were performed in the same lab and on the same test subjects, and, therefore, the results may not be applicable to all pinnipeds or in field settings.

    —Kastak and Schusterman (1996) studied the response of harbor seals to non-pulsed construction sound, reporting TTS of about 8 dB. The seal was exposed to broadband construction sound for 6 days, averaging 6 to 7 hours of intermittent exposure per day, with SPLs from just approximately 90 to 105 dB. —Kastak et al. (1999) reported TTS of approximately 4-5 dB in three species of pinnipeds (harbor seal, California sea lion, and northern elephant seal) after underwater exposure for approximately 20 minutes to sound with frequencies ranging from 100-2,000 Hz at received levels 60-75 dB above hearing threshold. This approach allowed similar effective exposure conditions to each of the subjects, but resulted in variable absolute exposure values depending on subject and test frequency. Recovery to near baseline levels was reported within 24 hours of sound exposure. —Kastak et al. (2005) followed up on their previous work, exposing the same test subjects to higher levels of sound for longer durations. The animals were exposed to octave-band sound for up to 50 minutes of net exposure. The study reported that the harbor seal experienced TTS of 6 dB after a 25-minute exposure to 2.5 kHz of octave-band sound at 152 dB (183 dB SEL). The California sea lion demonstrated onset of TTS after exposure to 174 dB and 206 dB SEL.

    Southall et al. (2007) reported one study on TTS in pinnipeds resulting from airborne pulsed sound, while two studies examined TTS in pinnipeds resulting from airborne non-pulsed sound:

    —Kastak et al. (2004) used the same test subjects as in Kastak et al. 2005, exposing the animals to non-pulsed sound (2.5 kHz octave-band sound) for 25 minutes. The harbor seal demonstrated 6 dB of TTS after exposure to 99 dB (131 dB SEL). The California sea lion demonstrated onset of TTS at 122 dB and 154 dB SEL. —Kastak et al. (2007) studied the same California sea lion as in Kastak et al. 2004 above, exposing this individual to 192 exposures of 2.5 kHz octave-band sound at levels ranging from 94 to 133 dB for 1.5 to 50 min of net exposure duration. The test subject experienced up to 30 dB of TTS. TTS onset occurred at 159 dB SEL. Recovery times ranged from several minutes to 3 days.

    The sound level necessary to cause TTS in pinnipeds depends on exposure duration; with longer exposure, the level necessary to elicit TTS is reduced (Schusterman et al. 2000; Kastak et al. 2005, 2007). For very short exposures (e.g. to a single sound pulse), the level necessary to cause TTS is very high (Finneran et al. 2003). Impact pile driving associated with POK would produce maximum estimated underwater pulsed sound levels estimated at 185 dB peak and 163 dB SEL (24-inch octagonal concrete piles, Illinworth and Rodkin 2007). Summarizing existing data, Southall et al. (2007) assume that pulses of underwater sound result in the onset of TTS in pinnipeds when received levels reach 212 dB peak or 171 dB SEL, and interim NOAA Fisheries guidance indicates the potential for Level A harassment of pinnipeds at received levels of 190dB rms. TTS is not likely to occur based on estimated source levels from the POK project.

    Impact pile driving would produce initial airborne sound levels of approximately 110 dB peak at the source (WSDOT 2014), as compared to the level suggested by Southall et al. (2007) of 143 dB peak for onset of TTS in pinnipeds from multiple pulses of airborne sound. It is not expected that airborne sound levels would induce TTS in individual pinnipeds.

    Although underwater sound levels produced by the POK project may exceed levels produced in studies that have induced TTS in pinnipeds up to 4 feet from pile driving activities, this extremely small radius of potential effects combined with marine mammal monitoring and a 15m shut down zone make the likelihood of pinnipeds in the area experience hearing loss extremely unlikely.

    PTS

    When PTS occurs, there is physical damage to the sound receptors in the ear. In some cases, there can be total or partial deafness, whereas in other cases, the animal has an impaired ability to hear sounds in specific frequency ranges.

    There is no specific evidence that exposure to underwater industrial sounds can cause PTS in any marine mammal (Southall et al. 2007). However, given the possibility that marine mammals might incur TTS, there has been further speculation about the possibility that some individuals occurring very close to industrial activities might incur PTS. Richardson et al. (1995) hypothesized that PTS caused by prolonged exposure to continuous anthropogenic sound is unlikely to occur in marine mammals, at least for sounds with source levels up to approximately 200 dB. Single or occasional occurrences of mild TTS are not indicative of permanent auditory damage in terrestrial mammals. Studies of relationships between TTS and PTS thresholds in marine mammals are limited; however, existing data appear to show similarity to those found for humans and other terrestrial mammals, for which there is a large body of data. PTS might occur at a received sound level at least several decibels above that inducing mild TTS.

    Southall et al. (2007) propose that sound levels inducing 40 dB of TTS may result in onset of PTS in marine mammals. The authors present this threshold with precaution, as there are no specific studies to support it. Because direct studies on marine mammals are lacking, the authors base these recommendations on studies performed on other mammals. Additionally, the authors assume that multiple pulses of underwater sound result in the onset of PTS in pinnipeds when levels reach 218 dB peak or 186 dB SEL. In air, sound levels are assumed to cause PTS in pinnipeds at 149 dB peak or 144 dB SEL (Southall et al. 2007). Sound levels this high are not expected to occur as a result of the proposed activities.

    The potential effects to marine mammals described in this section of the document do not take into consideration the proposed monitoring and mitigation measures described later in this document (see the Monitoring and Mitigation and Proposed Monitoring and Reporting sections). It is highly unlikely that marine mammals would receive sounds strong enough (and over a sufficient duration) to cause PTS (or even TTS) during the proposed POK activities. When taking the mitigation measures proposed for inclusion in the regulations into consideration, it is highly unlikely that any type of hearing impairment would occur as a result of POK's proposed activities.

    Anticipated Effects on Marine Mammal Habitat

    The action are for the proposed project does not contain any important habitat for the three marine mammal species that may occur there; there are no rookeries, haulouts, or breeding grounds that will be affected by the proposed action. Construction activities would likely impact pinniped habitat in the Columbia River used primarily as a migration corridor and opportunistic feeding activity by producing temporary disturbances, primarily through elevated levels of underwater sound, reduced water quality, and physical habitat alteration associated with the structural footprint of the new marine terminal. Other potential temporary changes are passage obstruction and changes in prey species distribution during construction. Permanent changes to habitat would be produced primarily through the presence of the new marine terminal in Columbia River.

    The underwater sounds would occur as short-term pulses (i.e. minutes to hours), separated by virtually instantaneous and complete recovery periods. These disturbances are likely to occur up to 120 days during the available in-water work window throughout daylight hours. Water quality impairment would also occur during construction, most likely due to dredging. Physical habitat alteration due to the addition of in-water and over-water structures would also occur intermittently during construction, and would remain as the final, as-built project footprint for the design life of POK.

    Elevated levels of sound may be considered to affect the in-water habitat of pinnipeds via impacts to prey species or through passage obstruction (discussed later). However, due to the timing of the in-water work, these effects on pinniped habitat would be temporary and limited in duration. Very few harbor seals are likely to be present in any case, and any pinnipeds that do encounter increased sound levels would primarily be transiting the action area in route to or from foraging below Bonneville Dam where fish concentrate or at the confluence of the Cowlitz River, and thus unlikely to forage in the action area in anything other than an opportunistic manner. The direct loss of habitat available during construction due to sound impacts is expected to be minimal.

    Impacts to Prey Species

    Fish are the primary dietary component of pinnipeds in the region of activity. The Columbia River provides migration and foraging habitat for sturgeon and lamprey, migration and spawning habitat for eulachon, and migration habitat for juvenile and adult salmon and steelhead, as well as some limited rearing habitat for juvenile salmon and steelhead.

    Impact pile driving would produce a variety of underwater sound levels. Underwater sound caused by vibratory installation would be less than impact driving (Illinworth and Rodkin 2007). Literature relating to the impacts of sound on marine fish species can be divided into categories which describe the following: (1) Pathological effects; (2) physiological effects; and (3) behavioral effects. Pathological effects include lethal and sub-lethal physical damage to fish; physiological effects include primary and secondary stress responses; and behavioral effects include changes in exhibited behaviors of fish. Behavioral changes might be a direct reaction to a detected sound or a result of anthropogenic sound masking natural sounds that the fish normally detect and to which they respond. The three types of effects are often interrelated in complex ways. For example, some physiological and behavioral effects could potentially lead ultimately to the pathological effect of mortality. Hastings and Popper (2005) reviewed what is known about the effects of sound on fish and identified studies needed to address areas of uncertainty relative to measurement of sound and the responses of fish.

    Underwater sound pressure waves can injure or kill fish. Fish with swim bladders, including salmon, steelhead, and sturgeon, are particularly sensitive to underwater impulsive sounds with a sharp sound pressure peak occurring in a short interval of time (Hastings and Popper 2005). As the pressure wave passes through a fish, the swim bladder is rapidly squeezed due to the high pressure, and then rapidly expanded as the underpressure component of the wave passes through the fish. The pneumatic pounding may rupture capillaries in the internal organs. Although eulachon lack a swim bladder, they are also susceptible to general pressure wave injuries including hemorrhage and rupture of internal organs, as described above, and damage to the auditory system. Direct take can cause instantaneous death, latent death within minutes after exposure, or can occur several days later. Indirect take can occur because of reduced fitness of a fish, making it susceptible to predation, disease, starvation, or inability to complete its life cycle. Effects to prey species are summarized here and are outlined in more detail in NOAA Fisheries' biological opinion.

    There are no physical barriers to fish passage within the region of activity, nor are there fish passage barriers between the region of activity and the Pacific Ocean. The proposed project would not involve the creation of permanent physical barriers; thus, long-term changes in pinniped prey species distribution are not expected to occur.

    Nevertheless, impact pile-driving would likely create a temporary migration barrier to all life stages of fish using the Columbia River, although this would be localized and mitigated by the in-water work window designed to minimize impacts to fish species. Impacts to fish species distribution would be temporary during in-water work and hydroacoustic impacts from impact pile driving would only occur during the day and only during the in-water work window established for this activity in conjunction with ODFW, WDFW, and NOAA Fisheries. The overall effect to the prey base for pinnipeds is anticipated to be insignificant.

    Prey may also be affected by turbidity, contaminated sediments, or other contaminants in the water column. The POK project involves several activities that could potentially generate turbidity in the Columbia River, including pile installation, pile removal, and dredging. Any measurable increase in turbidity is not anticipated to measurably exceed levels caused by normal increases associated with normal high flow events. Turbidity is not expected to cause mortality to fish species in the region of activity, and effects would probably be limited to temporary avoidance of the discrete areas of elevated turbidity (anticipated to be no more than 300 ft [91 m] from the source) for approximately 8-10 hours at a time, or effects such as abrasion to gills and alteration in feeding and migration behavior for fish close to the activity. Therefore, turbidity would likely have only insignificant effects to fish and, thus, insignificant effects on pinnipeds.

    The POK project has already determined that the project location does not have elevated concentrations of contaminants and is fully suited to any beneficial reuse (as described above), and therefore effects to water quality from resuspended contaminants are not anticipated from the proposed action.

    Physical Loss of Prey Species Habitat

    The project would lead to approximately 44,943 ft2 of additional new, permanent, overwater coverage, and the loss of 1,079 ft2 of benthic habitat from new piles in the Columbia River. Removal of the existing Columbia River piles would permanently restore about 123 ft2 (557 m2) of shallow-water habitat Physical loss of shallow-water habitat is of particular concern for rearing of subyearling migrant salmonids. In theory, in-water structures that completely block the nearshore may force these juveniles to swim into deeper-water habitats to circumvent them. Deep-water areas represent lower quality habitat because predation rates are higher there. Studies show that predators such as walleye (Stizostedion vitreum), northern pike-minnow (Ptychocheilus oregonensis), and other predatory fish occur in deepwater habitat for at least part of the year (Pribyl et al. 2004). In the case of the POK project, in-water portions of the structures would not pose a complete blockage to nearshore movement anywhere in the region of activity. Although these structures would cover potential rearing and nearshore migration areas, the habitat is not rare and is not of particularly high quality. Juveniles would still be able to use the abundant shallow-water habitat available for miles in either direction. Neither the permanent nor the temporary structures would necessarily force juveniles into deeper water, and therefore pose no definite added risk of predation.

    To the limited extent that the proposed actions do increase risk of predation, pinnipeds may accrue minor benefits. Alterations to adult eulachon and salmon behavior may make them more vulnerable to predation. Changes in cover that congregate fish or cause them to slow or pause migration would likely attract pinnipeds, which may then forage opportunistically. While individual pinnipeds are likely to take advantage of such conditions, it is not expected to increase overall predation rates across the run. Aggregating features would be small in comparison to the channel, and ample similar opportunities exist throughout the lower Columbia River.

    Physical loss of shallow-water habitat would have only negligible effects on foraging, migration, and holding of salmonids that are of the yearling age class or older. These life functions are not dependent on shallow-water habitat for these age classes. Furthermore, the lost habitat is not of particularly high quality. There is abundant similar habitat immediately adjacent along the shorelines of the Columbia River. The lost habitat represents only a small fraction of the remaining habitat available for miles in either direction. There would still be many acres of habitat for yearling or older age-classes of salmonids foraging, migrating, and holding in the region of activity. Physical loss of shallow-water habitat would have only negligible effects on eulachon and green sturgeon for the same reason. Thus, the effects to these elements of pinniped habitat would be minimal.

    In addition, compensatory mitigation for direct permanent habitat loss to jurisdictional waters from permanent pier placement would occur in accordance with requirements set by USACE, Washington Department of Ecology, and WDFW. To meet these requirements, POK is proposing to restore habitat in the 1.41 acres of riparian habitat near the project location through native plantings and invasive species control. Additionally, POK will install eight ELJs that will improve habitat for salmonids and eulachon. Therefore, permanent habitat loss is expected to have a negligible impact to habitat for pinniped prey species due to offsetting mitigation.

    Due to the small size of the impact relative to the remaining habitat available, and the permanent benefits from habitat restoration, permanent physical habitat loss is likely to be insignificant to fish and, thus, to the habitat and foraging opportunities of pinnipeds.

    Mitigation Mitigation Monitoring Protocols

    Initial monitoring zones are based on a practical spreading loss model and data found in Illinworth and Rodkin (2007). A minimum distance of 10 m is used for all shutdown zones, even if actual or initial calculated distances are less. A maximum distance of in-water line of sight is used for all disturbance zones for vibratory pile driving, even if actual or calculated values are greater. To provide the best estimate of transmission loss at a specific range, the data were estimated using a practical spreading loss model.

    Table 2—Distance to Initial Shutdown and Disturbance Monitoring Zones for In-Water Sound in the Columbia River Pile type Hammer type Distance to monitoring zones (m) 1 190 dB 2 160 dB 2 120 dB 2 24-in Concrete pile Impact 10 117 N/A. 18-in Steel pipe pile Vibratory 10 N/A Line of Sight, (max 5.7km). 18-in Steel pipe pile Impact 18 736 NA. 1 Monitoring zones based on a practical spreading loss model and data from Illinworth and Rodkin (2007). A minimum distance of 10 m is used for all shutdown zones, even if actual or initial calculated distances are less. 2 All values unweighted and relative to 1 μPa.

    In order to accomplish appropriate monitoring for mitigation purposes, POK would have an observer stationed on each active pile driving location to closely monitor the shutdown zone as well as the surrounding area. In addition, POK would post two shore-based observers (one upstream of the project, and another downstream of the project area; see application), whose primary responsibility would be to record pinnipeds in the disturbance zone and to alert barge-based observers to the presence of pinnipeds in the disturbance zone, thus creating a redundant alert system for prevention of injurious interaction as well as increasing the probability of detecting pinnipeds in the disturbance zone. POK estimates that shore-based observers would be able to scan approximately 800 m (upstream and downstream) from the available observation posts; therefore, shore-based observers would be capable of monitoring the agreed-upon disturbance zone.

    As described, at least three observers would be on duty during all pile vibratory driving/removal activity. The first observer would be positioned on a work platform or barge where the entire 10 m shutdown zone is clearly visible, with the shore-based observers positioned to observe the disturbance zone from the bank of the river. Protocols would be implemented to ensure that coordinated communication of sightings occurs between observers in a timely manner.

    In summary:

    —POK would implement a minimum shutdown zone of 10 m radius around all pile driving activity (or 18m in the case that impact pile driving is required for steel piles). The 10-m shutdown zone provides a buffer for the 190-dB threshold but is also intended to further avoid the risk of direct interaction between marine mammals and the equipment. —POK would have a redundant monitoring system, in which one observer would be stationed at the area of active pile driving, while two observers would be shore-based, as required to provide complete observational coverage of the reduced disturbance zone for each pile driving/removal site. The former would be capable of providing comprehensive monitoring of the proposed shutdown zones. This observer's first priority would be shutdown zone monitoring in prevention of injurious interaction, with a secondary priority of counting takes by Level B harassment in the disturbance zone. The additional shore-based observers would be able to monitor the same distances, but their primary responsibility would be counting of takes in the disturbance zone and communication with barge-based observers to alert them to pinniped presence in the action area. —The shutdown and disturbance zones would be monitored throughout the time required to drive a pile. If a marine mammal is observed within the disturbance zone, a take would be recorded and behaviors documented. However, that pile segment would be completed without cessation, unless the animal approaches or enters the shutdown zone, at which point all pile driving activities would be halted.

    The following measures would apply to visual monitoring:

    —If the shutdown zone is obscured by fog or poor lighting conditions, pile driving would not be initiated until the entire shutdown zone is visible. Work that has been initiated appropriately in conditions of good visibility may continue during poor visibility. —The shutdown zone would be monitored for the presence of pinnipeds before, during, and after any pile driving activity. The shutdown zone would be monitored for 30 minutes prior to initiating the start of pile driving. If pinnipeds are present within the shutdown zone prior to pile driving, the start of pile driving would be delayed until the animals leave the shutdown zone of their own volition, or until 15 minutes elapse without re-sighting the animal(s). —Monitoring would be conducted using binoculars. When possible, digital video or still cameras would also be used to document the behavior and response of pinnipeds to construction activities or other disturbances. —Each observer would have a radio or cell phone for contact with other monitors or work crews. Observers would implement shut-down or delay procedures when applicable by calling for the shut-down to the hammer operator. —A GPS unit or electric range finder would be used for determining the observation location and distance to pinnipeds, boats, and construction equipment.

    Monitoring would be conducted by qualified observers. In order to be considered qualified, observers must meet the following criteria:

    —Visual acuity in both eyes (correction is permissible) sufficient for discernment of moving targets at the water's surface with ability to estimate target size and distance; use of binoculars may be necessary to correctly identify the target.Advanced education in biological science, wildlife management, mammalogy, or related fields (bachelor's degree or higher is required). —Experience and ability to conduct field observations and collect data according to assigned protocols (this may include academic experience). —Experience or training in the field identification of pinnipeds, including the identification of behaviors. —Sufficient training, orientation, or experience with the construction operation to provide for personal safety during observations. —Writing skills sufficient to prepare a report of observations including but not limited to the number and species of pinnipeds observed; dates and times when in-water construction activities were conducted; dates and times when in-water construction activities were suspended to avoid potential incidental injury from construction sound of pinnipeds observed within a defined shutdown zone; and pinniped behavior. —Ability to communicate orally, by radio or in person, with project personnel to provide real-time information on pinnipeds observed in the area as necessary. Disturbance Zones

    For all pile driving and removal activities, a disturbance zone would be established. Disturbance zones are typically defined as the area in which SPLs equal or exceed 160 or 120 dB rms (for impact and vibratory pile driving, respectively). However, when the size of a disturbance zone is sufficiently large as to make monitoring of the entire area impracticable (as in the case of the 120-dB zone here), the disturbance zone may be defined as some area that may reasonably be monitored. Here, the disturbance zone is defined for monitoring purposes as an area are the waters within line of sight of project activities, with a maximum line of sight distance based on local geography of approximately 5.7 km. Disturbance zones provide utility for monitoring conducted for mitigation purposes (i.e. shutdown zone monitoring) by establishing monitoring protocols for areas adjacent to the shutdown zones. Monitoring of disturbance zones enables PSOs to be aware of and communicate the presence of marine mammals in the project area but outside the shutdown zone and thus prepare for potential shutdowns of activity. However, the primary purpose of disturbance zone monitoring is for documenting incidents of Level B harassment; disturbance zone monitoring is discussed in greater detail later (see Proposed Monitoring and Reporting).

    Shutdown Zones

    For all pile driving, a shutdown zone (defined as, at minimum, the area in which SPLs equal or exceed 190 dB rms) of 10 m from impact driving of concrete piles and vibratory pile driving, and 18 m for impact pile driving of steel piles, would be established. The purpose of a shutdown zone is to define an area within which shutdown of activity would occur upon sighting of a marine mammal (or in anticipation of an animal entering the defined area), thus preventing injury, serious injury, or death of marine mammals. Although practical spreading loss model indicates that radial distances to the 190-dB threshold would be less than 10m for impact pile driving of concrete piles and vibratory pile driving, shutdown zones would conservatively be set at a minimum 10 m. This precautionary measure is intended to further reduce any possibility of injury to marine mammals by incorporating a buffer to the 190-dB threshold within the shutdown area.

    Shutdown

    Pile driving would occur from September 1 through January 31. The shutdown zone would also be monitored throughout the time required to drive a pile. If a pinniped is observed approaching or entering the shutdown zone, piling operations would be discontinued until the animal has moved outside of the shutdown zone. Pile driving would resume only after the animal is determined to have moved outside the shutdown zone by a qualified observer or after 15 minutes have elapsed since the last sighting of the animal within the shutdown zone.

    Pile Driving Best Management Practices

    For pile driving, the applicant will implement the following best management practices:

    —If steel piles require impact installation or proofing, a bubble curtain will be used for sound attenuation; —If steel piles require impact installation or proofing, the contractor will be required to use soft start procedures. Soft start procedures require that the contractor provides an initial set of three strikes at reduced energy, followed by a thirty-second waiting period, then two subsequent reduced energy strike sets; —Soft start shall be implemented at the start of each day's pile driving and at any time following cessation of impact pile driving for a period of thirty minutes or longer; —Marine mammal monitoring will be conducted during all pile driving as described in Appendix B of the application. Other Mitigation and Best Management Practices

    In addition, NOAA Fisheries and POK, together with other relevant regulatory agencies, have developed a number of mitigation measures designed to protect fish through prevention or minimization of turbidity and disturbance and introduction of contaminants, among other things. These measures have been prescribed under the authority of statutes other than the MMPA, and are not a part of this proposed rulemaking. However, because these measures minimize impacts to pinniped prey species (either directly or indirectly, by minimizing impacts to prey species' habitat), they are summarized briefly here. Additional detail about these measures may be found in POK's application.

    Timing restrictions would be used to avoid in-water work when ESA-listed fish are most likely to be present. Fish entrapment would be minimized by containing and isolating in-water work to the extent possible, through the use of drilled shaft casings and cofferdams. The contractor would provide a qualified fishery biologist to conduct and supervise fish capture and release activity to minimize risk of injury to fish. All pumps must employ fish screen that meet certain specifications in order to avoid entrainment of fish. A qualified biologist would be present during all impact pile driving operations to observe and report any indications of dead, injured, or distressed fishes, including direct observations of these fishes or increases in bird foraging activity.

    POK would work to ensure minimum degradation of water quality in the project area, and requires compliance with Surface Water Quality Standards for Washington. In addition, the contractor would prepare a Spill Prevention, Control, and Countermeasures (SPCC) Plan prior to beginning construction. The SPCC Plan would identify the appropriate spill containment materials; as well as the method of implementation. All equipment to be used for construction activities would be cleaned and inspected prior to arriving at the project site, to ensure no potentially hazardous materials are exposed, no leaks are present, and the equipment is functioning properly. Equipment that would be used below OHW would be identified; daily inspection and cleanup procedures would insure that identified equipment is free of all external petroleum-based products. Should a leak be detected on heavy equipment used for the project, the equipment must be immediately removed from the area and not used again until adequately repaired.

    The contractor would also be required to prepare and implement a Temporary Erosion and Sediment Control (TESC) Plan and a Source Control Plan for project activities requiring clearing, vegetation removal, grading, ditching, filling, embankment compaction, or excavation. The BMPs in the plans would be used to control sediments from all vegetation removal or ground-disturbing activities.

    Conclusions for Effectiveness of Mitigation

    NOAA Fisheries has carefully evaluated the applicant's proposed mitigation measures and considered a range of other measures in the context of ensuring that NOAA Fisheries prescribes the means of effecting the least practicable adverse impact on the affected marine mammal species and stocks and their habitat. Our evaluation of potential measures included consideration of the following factors in relation to one another:

    —The manner in which, and the degree to which, the successful implementation of the measure is expected to minimize adverse impacts to marine mammals; —The proven or likely efficacy of the specific measure to minimize adverse impacts as planned; and —The practicability of the measure for applicant implementation.

    Based on our evaluation, NOAA Fisheries has preliminarily determined that the mitigation measures proposed from both NOAA Fisheries and POK provide the means of effecting the least practicable adverse impact on marine mammal species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance. The proposed rule comment period will afford the public an opportunity to submit recommendations, views, and/or concerns regarding this action and the proposed mitigation measures.

    Proposed Monitoring and Reporting

    In order to issue an incidental take authorization (ITA) for an activity, section 101(a)(5)(A) of the MMPA states that NOAA Fisheries must, where applicable, set forth “requirements pertaining to the monitoring and reporting of such taking”. The MMPA implementing regulations at 50 CFR 216.104(a)(13) indicate that requests for ITAs must include the suggested means of accomplishing the necessary monitoring and reporting that would result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that are expected to be present in the proposed action area.

    POK proposed a marine mammal monitoring plan in their application (see Appendix B of POK's application). The plan may be modified or supplemented based on comments or new information received from the public during the public comment period. All methods identified herein have been developed through coordination between NOAA Fisheries and the design and environmental teams at POK. The methods are based on the parties' professional judgment supported by their collective knowledge of pinniped behavior, site conditions, and proposed project activities. Because pinniped monitoring has not previously been conducted at this site, aspects of these methods may warrant modification. Any modifications to this protocol would be coordinated with NOAA Fisheries. A summary of the plan, as well as the proposed reporting requirements, is contained here.

    The intent of the monitoring plan is to:

    —Comply with the requirements of the MMPA as well as the ESA section 7 consultation; —Avoid injury to pinnipeds through visual monitoring of identified shutdown zones and shut-down of activities when animals enter or approach those zones; and —To the extent possible, record the number, species, and behavior of pinnipeds in disturbance zones for pile driving and removal activities.

    As described previously, monitoring for pinnipeds would be conducted in specific zones established to avoid or minimize effects of elevated levels of sound created by the specified activities. Shutdown zones would not be less than 10 m, while initial disturbance zones would be based on site-specific data.

    Visual Monitoring

    The established shutdown and disturbance zones would be monitored by qualified marine mammal observers for mitigation purposes, as well as to document marine mammal behavior and incidents of Level B harassment, as described here. POK's marine mammal monitoring plan (see Appendix B of POK's application) would be implemented, requiring collection of sighting data for each pinniped observed during the proposed activities for which monitoring is required, including impact installation of concrete pile or vibratory installation of steel pipe. A qualified biologist(s) would be present on site at all times during impact pile driving or vibratory installation or removal piles.

    Disturbance Zone Monitoring

    Disturbance zones, described previously in Monitoring and Mitigation section, are defined in Table 2 for underwater sound. Monitoring zones for Level B harassment from airborne sound would be 96m for harbor seals and 38m for sea lions (corresponding to the anticipated extent of airborne sound reaching 90 and 100 dB, respectively) during impact pile driving, and 83m and 17m (respectively) during vibratory pile driving.

    The size of the disturbance zone for in-water monitoring for vibratory pile installation or extraction would be the full line of sight from pile driving activities in both the upstream and downstream directions. Monitoring for impact pile driving of concrete piles will extend 117m from the pile driving, and will require only a single monitor at the project location.

    The monitoring biologists would document all pinnipeds observed in the monitoring area. Data collection would include a count of all pinnipeds observed by species, sex, age class, their location within the zone, and their reaction (if any) to construction activities, including direction of movement, and type of construction that is occurring, time that pile driving begins and ends, any acoustic or visual disturbance, and time of the observation. Environmental conditions such as wind speed, wind direction, visibility, and temperature would also be recorded. No monitoring would be conducted during inclement weather that creates potentially hazardous conditions, as determined by the biologist, nor would monitoring be conducted when visibility is significantly limited, such as during heavy rain or fog. During these times of inclement weather, in-water work that may produce sound levels in excess of 190 dB rms would be halted; these activities would not commence until monitoring has started for the day.

    All monitoring personnel must have appropriate qualifications as identified previously; with qualifications to be certified by POK (see Monitoring and Mitigation). These qualifications include education and experience identifying pinnipeds in the Columbia River and the ability to understand and document pinniped behavior. All monitoring personnel would meet at least once for a training session sponsored by POK. Topics would include: Implementation of the protocol, identifying marine mammals, and reporting requirements.

    All monitoring personnel would be provided a copy of the LOA and final biological opinion for the project. Monitoring personnel must read and understand the contents of the LOA and biological opinion as they relate to coordination, communication, and identifying and reporting incidental harassment of pinnipeds.

    Estimated Take by Incidental Harassment

    Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as: Any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild [Level A harassment]; or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering [Level B harassment]. Take by Level B harassment only is anticipated as a result of POK's proposed project. Take of marine mammals is anticipated to be associated with the installation and removal of piles via impact and vibratory methods. Dredging is not anticipated to result in take of marine mammals. No take by injury, serious injury, or death is anticipated.

    Table 3—Current Acoustic Exposure Criteria Non-explosive sound Criterion Criterion definition Threshold Level A Harassment (Injury) Permanent Threshold Shift (PTS) (Any level above that which is known to cause TTS) 180 dB re 1 microPa-m (cetaceans)/190 dB re 1 microPa-m (pinnipeds) root mean square (rms). Level B Harassment Behavioral Disruption (for impulse noises) 160 dB re 1 microPa-m (rms). Level B Harassment Behavioral Disruption (for continuous, noise) 120 dB re 1 microPa-m (rms).

    The area of potential Level B harassment varies with the activity being conducted. For impact pile driving that will be used for the concrete piles, the area of potential harassment extends 117m from the pile driving activity. For vibratory pile driving associated with the installation of steel pipe piles, the zone of potential harassment extends in a line of sight from the pile driving activities to the nearest shoreline, covering an area of approximately 1800 acres of riverine habitat (Figure 1). Because there are no haul outs, feeding areas, or other important habitat areas for marine mammals in the action area, it is anticipated that take exposures will result primarily from animals transiting from downstream areas to upstream feeding areas.

    Assumptions regarding numbers of pinnipeds and number of round trips per individual per year in the Region of Activity are based on information from ongoing pinniped research and management activities conducted in response to concern over California sea lion predation on fish populations concentrated below Bonneville Dam. An intensive monitoring program has been conducted in the Bonneville Dam tailrace since 2002, using surface observations to evaluate seasonal presence, abundance, and predation activities of pinnipeds. Minimum estimates of the number of pinnipeds present in the tailrace from 2002 through 2014 are presented in Table 4.

    Table 4—Minimum Estimated Total Numbers of Pinnipeds Present at Bonneville Dam on an Annual Basis From 2002 Through 2013 (Stansell et al., 2013) Species 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 Harbor seals 1 2 2 1 3 2 2 2 2 1 0 0 California sea lions 30 104 99 81 72 71 82 54 89 54 39 56 Steller sea lions 0 3 3 4 11 9 39 26 75 89 73 80 Harbor Seals

    There is no documented breeding or pupping activity in the action area (Jeffries 1985), and only adult males and females are anticipated to be present in the action area. There is no current data estimating abundance of harbor seals either locally or for the Oregon-Washington coastal stock (Carretta et al. 2014). In this case, we must rely on estimates provided in the application that are believed to provide a conservative estimate of the number of harbor seals potentially affected by the proposed action. The conservative estimate of harbor seals likely to be present in the action area when construction activities are occurring is up to 10 animals per day based on local anecdotal reports (lacking local observational data), with the animals primarily transiting between the mouth of the Columbia River and the Cowlitz or Kalama Rivers. Because harbor seals occur in the action area throughout the year, and in-water construction activities are expected to take up to 120 days, it is possible that harbor seals could be exposed above the Level B harassment threshold up to 1200 times, although some of these exposures would likely be exposures of the same individual across multiple days so the number of individual harbor seals taken is likely lower. We believe that this estimate is doubly conservative, because the majority of pile driving work will be impact pile driving of concrete piles. Impact pile driving of concrete piles has a much smaller area of potential harassment (a radius of 117m from pile driving) than vibratory pile driving, and this area covers only approximately 1/6th of the channel width of the Columbia River, indicating a large portion of the river will be passable by pinnipeds without experiencing take in the form of harassment during most pile driving activities.

    California Sea Lions

    California sea lions are the most frequently observed pinnipeds upstream of the project site. California sea lions do not breed or bear their young near the Columbia River watershed, with the nearest breeding grounds off the coast of southern California (Caretta et al. 2014). There are no documented haulouts within the action area, so the only California sea lions expected to be present in the action area are adult males and females traveling to and from dams upstream of the project location.

    For California sea lions, we use the maximum observed abundance at the Bonneville Dam since monitoring began in 2002 (Table 4) as our starting point. With a maximum observed number of California sea lions being 104 in 2003, we assume that each sea lion would transit the action area twice, once on the way to the dam on once returning from the dam, resulting in 208 transits per year. With the project in-water activities occurring for up to 120 days, we then assume that no more than 1/3 of the sea lion run would be exposed for the duration of the project, resulting in up to an estimated 70 take exposures. This provides a conservative estimate because sea lion abundance upstream of the project area occurs March through April (Stansell et al. 2013), which the in-water work window of September 1 through January 31 avoid. Additionally, the majority of pile driving work will be impact pile driving of concrete piles. Impact pile driving of concrete piles has a much smaller area of potential harassment (a radius of 117m from pile driving) than vibratory pile driving, and this area covers only approximately 1/6th of the channel width of the Columbia River, indicating a large portion of the river will be passable by pinnipeds without experiencing take in the form of harassment during most pile driving activities. Thus we would expect that less than 1/3 of the transits would occur during the project's in-water work window based on avoiding peak transit periods, and that some proportion of those transits would occur in unaffected areas of the Columbia River during impact pile driving activities.

    Steller Sea Lions

    Steller sea lions do not breed or bear their young near the Columbia River watershed, with the nearest breeding grounds on the marine coast of Oregon (Stansell et al. 2013). There are no documented haulouts within the action area, so the only Steller sea lions expected to be present in the action area are adult males and females traveling to and from dams upstream of the project location.

    For Steller sea lions, we use the maximum observed abundance at the Bonneville Dam since monitoring began in 2002 (Table 4) as our starting point. With a maximum observed number of Steller sea lions being 89 in 2011, we assume that each sea lion would transit the action area twice, once on the way to the dam on once returning from the dam. To account for a slight trend of increasing numbers of Steller sea lions being observed each year, we assume up to 100 individuals may pass the project site during the year which this authorization is active, providing an estimate of 200 transits per year. With the project in-water activities occurring for up to 120 days, we then then assume that no more than 1/3 of the sea lion run would be exposed for the duration of the project, resulting in up to an estimated 68 take exposures. This provides a conservative estimate because sea lion abundance upstream of the project area occurs March through April (Stansell et al. 2013), which the in-water work window of September 1 through January 31 avoid. Additionally, the majority of pile driving work will be impact pile driving of concrete piles. Impact pile driving of concrete piles has a much smaller area of potential harassment (a radius of 117m from pile driving) than vibratory pile driving, and this area covers only approximately 1/6th of the channel width of the Columbia River, indicating a large portion of the river will be passable by pinnipeds without experiencing take in the form of harassment during most pile driving activities. Thus we would expect that less than 1/3 of the transits would occur during the project's in-water work window based on avoiding peak transit periods, and that some proportion of those transits would occur in unaffected areas of the Columbia River during impact pile driving activities.

    Analysis and Preliminary Determinations Negligible Impact

    Negligible impact is “an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival” (50 CFR 216.103). A negligible impact finding is based on the lack of likely adverse effects on annual rates of recruitment or survival (i.e., population-level effects). An estimate of the number of takes, alone, is not enough information on which to base an impact determination. In addition to considering estimates of the number of marine mammals that might be “taken”, NOAA Fisheries must consider other factors, such as the likely nature of any responses (their intensity, duration, etc.), the context of any responses (critical reproductive time or location, migration, etc.), as well as the number and nature of estimated Level A harassment takes, the number of estimated mortalities, and the status of the species. To avoid repetition, the discussion of our analyses applies to all three species of pinnipeds (harbor seals, California sea lions, and Steller sea lions), given that the anticipated effects of this project on these species are expected to be relatively similar in nature. There is no information about the nature or severity of the impacts, or the size, status, or structure of any species or stock that would lead to a different analysis for any species, else species-specific factors would be identified and analyzed.

    Incidental take, in the form of Level B harassment only, is likely to occur primarily as a result of pinniped exposure to elevated levels of sound caused by impact and vibratory installation and removal of pipe and sheet pile and steel casings. No take by injury, serious injury, or death is anticipated or would be authorized. By incorporating the proposed mitigation measures, including pinniped monitoring and shut-down procedures described previously, harassment to individual pinnipeds from the proposed activities is expected to be limited to temporary behavioral impacts. POK assumes that all individuals travelling past the project area would be exposed each time they pass the area and that all exposures would cause disturbance. NOAA Fisheries agrees that this represents a worst-case scenario and is therefore sufficiently precautionary. There are no pinniped haul-outs or rookeries located within or near the Region of Activity.

    The shutdown zone monitoring proposed as mitigation, and the small size of the zones in which injury may occur, makes any potential injury of pinnipeds extremely unlikely, and therefore discountable. Because pinniped exposures would be limited to the period they are transiting the disturbance zone, with potential repeat exposures (on return to the mouth of the Columbia River) separated by days to weeks, the probability of experiencing TTS is also considered unlikely.

    In addition, it is unlikely that pinnipeds exposed to elevated sound levels would temporarily avoid traveling through the affected area, as they are highly motivated to travel through the action area in pursuit of foraging opportunities upriver. Sea lions have shown increasing habituation in recent years to various hazing techniques used to deter the animals from foraging in the Bonneville tailrace area, including acoustic deterrent devices, boat chasing, and above-water pyrotechnics (Stansell et al. 2013). Many of the individuals that travel to the tailrace area return in subsequent years (Stansell et al. 2013). Therefore, it is likely that pinnipeds would continue to pass through the action area even when sound levels are above disturbance thresholds.

    Although pinnipeds are unlikely to be deterred from passing through the area, even temporarily, they may respond to the underwater sound by passing through the area more quickly, or they may experience stress as they pass through the area. Sea lions already move quickly through the lower river on their way to foraging grounds below Bonneville Dam (transit speeds of 4.6 km/hr in the upstream direction and 8.8 km/hr in the downstream direction [Brown et al. 2010]). Any increase in transit speed is therefore likely to be slight. Another possible effect is that the underwater sound would evoke a stress response in the exposed individuals, regardless of transit speed. However, the period of time during which an individual would be exposed to sound levels that might cause stress is short given their likely speed of travel through the affected areas. In addition, there would be few repeat exposures for individual animals. Thus, it is unlikely that the potential increased stress would have a significant effect on individuals or any effect on the population as a whole.

    Therefore, NOAA Fisheries finds it unlikely that the amount of anticipated disturbance would significantly change pinnipeds' use of the lower Columbia River or significantly change the amount of time they would otherwise spend in the foraging areas below Bonneville Dam. Pinniped usage of the Bonneville Dam foraging area, which results in transit of the action area, is a relatively recent learned behavior resulting from human modification (i.e., fish accumulation at the base of the dam). Even in the unanticipated event that either change was significant and animals were displaced from foraging areas in the lower Columbia River, there are alternative foraging areas available to the affected individuals. NOAA Fisheries does not anticipate any effects on haul-out behavior because there are no proximate haul-outs within the areas affected by elevated sound levels. All other effects of the proposed action are at most expected to have a discountable or insignificant effect on pinnipeds, including an insignificant reduction in the quantity and quality of prey otherwise available.

    Any adverse effects to prey species would occur on a temporary basis during project construction. Given the large numbers of fish in the Columbia River, the short-term nature of effects to fish populations, and extensive BMPs and minimization measures to protect fish during construction, as well as conservation and habitat mitigation measures that would continue into the future, the project is not expected to have significant effects on the distribution or abundance of potential prey species in the long term. All project activities would be conducted using the BMPs and minimization measures, which are described in detail in NOAA Fisheries' biological opinion, pursuant to section 7 of the ESA, on the effects of the POK project on ESA-listed species. Therefore, these temporary impacts are expected to have a negligible impact on habitat for pinniped prey species.

    A detailed description of potential impacts to individual pinnipeds was provided previously in this document. The following sections put into context what those effects mean to the respective populations or stocks of each of the pinniped species potentially affected.

    Harbor Seal

    The Oregon/Washington coastal stock of harbor seals consisted of about 24,732 animals in 1999 (Carretta et al. 2014). As described previously, both the Washington and Oregon portions of this stock have reached carrying capacity and are no longer increasing, and the stock is believed to be within its optimum sustained population level (Jeffries et al. 2003; Brown et al. 2005). The estimated take of up to 1200 individuals (though likely somewhat fewer, as the estimate really indicates instances of take and some individuals are likely taken more than once across the 120-day period) by Level B harassment is small relative to a stable population of approximately 25,000 (4.8 percent), and is not expected to impact annual rates of recruitment or survival of the stock.

    California Sea Lion

    The U.S. stock of California sea lions had a minimum estimated population of 153,337 in the 2013 Stock Assessment Report and may be at carrying capacity, although more data are needed to verify that determination (Carretta et al. 2014). The estimated take of 70 individuals by Level B harassment is small relative to a population of approximately 153,337 (>0.1 percent), and is not expected to impact annual rates of recruitment or survival of the stock.

    Steller Sea Lion

    The total population of the eastern DPS of Steller sea lions had a minimum estimated population of 59,968 animals with an overall annual rate of increase of 4 percent throughout most of the range (Oregon to southeastern Alaska) since the 1970s (Allen and Angliss, 2015). In 2006, the NOAA Fisheries Steller sea lion recovery team proposed removal of the eastern stock from listing under the ESA based on its annual rate of increase, and the population was delisted in 2013 (though still considered depleted under the MMPA). The total estimated take of 68 individuals per year is small compared to a population of approximately 59,968 (0.1 percent) and is not expected to impact annual rates of recruitment or survival of the stock.

    Summary

    The anticipated behavioral harassment is not expected to impact recruitment or survival of the any affected pinniped species. The Level B harassment experienced is expected to be of short duration, with 1-2 exposures per individual separated by days to weeks, with each exposure resulting in minimal behavioral effects (increased transit speed or avoidance). For all species, because the type of incidental harassment is not expected to actually remove individuals from the population or decrease significantly their ability to feed or breed, this amount of incidental harassment is anticipated to have a negligible impact on the stock.

    Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the mitigation and monitoring measures, NOAA Fisheries preliminarily finds that POK's proposed activities would have a negligible impact on the affected species or stocks.

    Small Numbers

    Using the estimated take described previously, the species with the greatest proportion of affected population is harbor seals (Table 5), with an estimated 4.8% of the population potentially experiencing take from the proposed action. California sea lions population will experience less than 0.1% exposure, and Steller sea lions an approximate exposure rate of 0.1%. Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the mitigation and monitoring measures, NOAA Fisheries preliminarily finds that small numbers of marine mammals will be taken relative to the populations of the affected species or stocks.