Page Range | 24453-24692 | |
FR Document |
Page and Subject | |
---|---|
81 FR 24453 - Earth Day, 2016 | |
81 FR 24630 - Notice of establishment of the Moving to Work Research Federal Advisory Committee | |
81 FR 24633 - 60-Day Notice of Proposed Information Collection: Public Housing Agency Executive Compensation Information | |
81 FR 24573 - Applications for New Awards; Performance Partnership Pilots | |
81 FR 24558 - Submission for OMB Review; Comment Request | |
81 FR 24559 - Submission for OMB Review; Comment Request | |
81 FR 24605 - Pesticide Experimental Use Permit; Receipt of Application; Comment Request | |
81 FR 24610 - Amendments, Extensions, and/or Issuances of Experimental Use Permits | |
81 FR 24598 - General Permit for Ocean Disposal of Marine Mammal Carcasses | |
81 FR 24597 - Farm, Ranch, and Rural Communities Committee | |
81 FR 24610 - Aldicarb, Bensulide, Coumaphos, Ethalfluralin, and Pirimiphos-methyl Registration Review; Draft Human Health and Ecological Risk Assessments; Notice of Availability | |
81 FR 24690 - Agency Information Collection Activities: Proposed Information Collection; Comment Request; Reduction of Permanent Capital Notice | |
81 FR 24636 - United States v. Charleston Area Medical Center, Inc. and St. Mary's Medical Center, Inc.: Proposed Final Judgment and Competitive Impact Statement | |
81 FR 24570 - Denali Commission Fiscal Year 2016 Draft Work Plan | |
81 FR 24563 - Foreign-Trade Zone (FTZ) 46G-Cincinnati, Ohio; Notification of Proposed Production Activity; Givaudan Flavors Corporation; (Flavor Products); Cincinnati, Ohio | |
81 FR 24563 - Foreign-Trade Zone 291-Cameron Parish, Louisiana; Application for Subzone; G2 LNG LLC; Cameron, Louisiana | |
81 FR 24563 - Foreign-Trade Zone 61-San Juan, Puerto Rico; Application for Subzone; Rooms to Go (PR), Inc.; Toa Baja, Puerto Rico | |
81 FR 24455 - Prevailing Rate Systems; Abolishment of the Newburgh, NY, Appropriated Fund Federal Wage System Wage Area | |
81 FR 24591 - Guidance and Application for Hydroelectric Incentive Payments | |
81 FR 24687 - Agency Information Collection Activities: Requests for Comments; Clearance of Renewed Approval of Information Collection: Aviation Maintenance Technical Schools | |
81 FR 24519 - Amendments to the 2013 Mortgage Servicing Rules Under the Real Estate Settlement Procedures Act (Regulation X) and the Truth in Lending Act (Regulation Z) | |
81 FR 24567 - Agency Information Collection Activities: Comment Request | |
81 FR 24688 - Agency Information Collection Activities: Requests for Comments; Clearance of Renewed Approval of Information Collection: Human Space Flight Requirements for Crew and Space Flight Participants | |
81 FR 24685 - Mississippi Disaster #MS-00085 | |
81 FR 24685 - Regulatory Fairness Hearing; Region I-Portland, Maine | |
81 FR 24686 - Membership in the National Parks Overflights Advisory Group Aviation Rulemaking Committee | |
81 FR 24589 - Quadrennial Energy Review: Notice of Public Meetings | |
81 FR 24550 - Acquisition Regulation: Nondisplacement of Qualified Workers Under Service Contracts and Other Changes to the Contractor Purchasing System Clause | |
81 FR 24691 - Sanctions Action Pursuant to Executive Order 13726 of April 19, 2016, “Blocking Property and Suspending Entry Into the United States of Persons Contributing to the Situation in Libya” | |
81 FR 24567 - United States Air Force F-35A Operational Beddown-Pacific | |
81 FR 24658 - Completion Date of Cyber Security Plan Implementation Milestone 8; Tennessee Valley Authority; Watts Bar Nuclear Plant, Unit 1; Correction | |
81 FR 24504 - Fisheries of the Northeastern United States; Atlantic Mackerel, Squid, and Butterfish Fisheries; Specifications and Management Measures | |
81 FR 24501 - International Fisheries; Pacific Tuna Fisheries; Fishing Restrictions for the Area of Overlap Between the Convention Areas of the Inter-American Tropical Tuna Commission and the Western and Central Pacific Fisheries Commission | |
81 FR 24511 - Fisheries of the Exclusive Economic Zone Off Alaska; Bering Sea and Aleutian Islands Crab Rationalization Program | |
81 FR 24521 - Safety Zone, Shallowbag Bay; Manteo, NC | |
81 FR 24491 - Drawbridge Operation Regulation; Three Mile Slough, Rio Vista, CA | |
81 FR 24691 - Proposed Collection; Comment Request for Form 5558 | |
81 FR 24569 - Judicial Proceedings Since Fiscal Year 2012 Amendments Panel (Judicial Proceedings Panel); Notice of Federal Advisory Committee Meeting | |
81 FR 24561 - Information Collection; Secure Rural Schools Act | |
81 FR 24560 - Forest Resource Coordinating Committee | |
81 FR 24624 - President's National Security Telecommunications Advisory Committee | |
81 FR 24484 - PATH Act Changes to Section 1445; Correction | |
81 FR 24593 - Palmco Power DE LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 Authorization | |
81 FR 24594 - Puget Sound Energy, Inc.; Notice of Request Under Blanket Authorization | |
81 FR 24593 - Tres Palacios Gas Storage LLC; Notice of Application | |
81 FR 24566 - North Pacific Fishery Management Council; Public Meeting | |
81 FR 24658 - National Transportation Safety Board Forum | |
81 FR 24491 - Drawbridge Operation Regulation; Atlantic Intracoastal Waterway, South Branch of the Elizabeth River, Chesapeake, VA | |
81 FR 24616 - Proposed Data Collection Submitted for Public Comment and Recommendations | |
81 FR 24686 - Delegation of Authority | |
81 FR 24565 - Western Pacific Fishery Management Council; Public Meetings | |
81 FR 24565 - New England Fishery Management Council; Public Meeting | |
81 FR 24689 - Pipeline Safety: Public Workshop on Liquefied Natural Gas Regulations | |
81 FR 24568 - Proposed Collection; Comment Request | |
81 FR 24564 - Export Trade Certificate of Review | |
81 FR 24688 - Notice and Request for Comments | |
81 FR 24562 - Section 538 Guaranteed Rural Rental Housing Program 2016 Industry Forums-Open Teleconference and/or Web Conference Meetings | |
81 FR 24625 - Agency Information Collection Activities: Petition To Classify Orphan as an Immediate Relative; Application for Advance Processing of an Orphan Petition; Supplement 1, Listing of an Adult Member of the Household, Form I-600, I-600A, and Supplement 1; Extension, Without Change, of a Currently Approved Collection | |
81 FR 24569 - Charter Renewal of Department of Defense Federal Advisory Committees | |
81 FR 24615 - Proposed Data Collection Submitted for Public Comment and Recommendations | |
81 FR 24654 - Agency Information Collection Activities; Submission for OMB Review; Comment Request; Workforce Innovation and Opportunity Act Common Performance Reporting | |
81 FR 24626 - Agency Information Collection Activities: Notice of Naturalization Oath Ceremony, Form N-445; Extension, Without Change, of a Currently Approved Collection | |
81 FR 24655 - Adjustment of Cable Statutory License Royalty Rates | |
81 FR 24613 - Formations of, Acquisitions by, and Mergers of Bank Holding Companies | |
81 FR 24621 - Approval of Trust Control International as a Commercial Gauger | |
81 FR 24620 - Accreditation and Approval of Camin Cargo Control, Inc., as a Commercial Gauger and Laboratory | |
81 FR 24589 - NCES System Clearance for Cognitive, Pilot, and Field Test Studies; ED-2016-ICCD-0040; Correction | |
81 FR 24490 - Drawbridge Operation Regulation; Willamette River, Portland, OR | |
81 FR 24588 - Agency Information Collection Activities; Submission to the Office of Management and Budget for Review and Approval; Comment Request; Higher Education Act (HEA) Title II Report Cards on State Teacher Credentialing and Preparation | |
81 FR 24627 - Agency Information Collection Activities: Application for Status as Temporary Resident Under Section 245A of the INA, Form I-687, I-687WS; Extension, Without Change, of a Currently Approved Collection | |
81 FR 24523 - Adjustment of Cable Statutory License Royalty Rates | |
81 FR 24594 - Combined Notice of Filings #2 | |
81 FR 24592 - Combined Notice of Filings #1 | |
81 FR 24667 - Product Change-Priority Mail Negotiated Service Agreement | |
81 FR 24456 - Grapes Grown in a Designated Area of Southeastern California and Imported Table Grapes; Revision to the Administrative Rules and Regulations for Shipments to Charitable Organizations | |
81 FR 24555 - Request for Extension and Revision of a Currently Approved Information Collection, OMB 0581-0125 Regulations Governing Inspection Certification of Fresh & Processed Fruits, Vegetables, & Other Products 7 CFR Part 51 and 52, and To Merge 0581-0292 Specialty Crops Inspection Order Forms into OMB 0581-0125 | |
81 FR 24618 - Submission for OMB Review; Comment Request | |
81 FR 24557 - Request for an Extension and Revision of a Currently Approved Information Collection for the Seed Service Testing Program | |
81 FR 24629 - 30-Day Notice of Proposed Information Collection: Validating Estimates of CPD Grantee Accrued Expenses | |
81 FR 24482 - Determination of Adjusted Applicable Federal Rates Under Section 1288 and the Adjusted Federal Long-Term Rate Under Section 382 | |
81 FR 24484 - Drug Abuse Treatment Program | |
81 FR 24556 - Transportation and Marketing Program; Notice of Extension and Request for Revision of a Currently Approved Information Collection and To Merge the Collections of 0581-0235 Farmers Market Promotion Program, 0581-0240 Federal-State Market Improvement Program, 0581-0248 Specialty Crop Block Grant Program-Farm Bill, Specialty Crop Multi-State Program, and 0581-0287 Local Food Promotion Program | |
81 FR 24635 - Notice of Receipt of Complaint; Solicitation of Comments Relating to the Public Interest | |
81 FR 24684 - Oregon Disaster #OR-00081 Declaration of Economic Injury | |
81 FR 24628 - 60-Day Notice of Proposed Information Collection: Application for Community Compass TA and Capacity Building Program NOFA | |
81 FR 24685 - Notice With Respect to List of Countries Denying Fair Market Opportunities for Government-Funded Airport Construction Projects | |
81 FR 24554 - Request for Extension and Revision of a Currently Approved Information Collection for the Federal Seed Act Program | |
81 FR 24628 - 30-Day Notice of Proposed Information Collection: Office of Lead Hazard Control and Healthy Homes Grant Programs; Data Collection and Progress Reporting | |
81 FR 24634 - 60-Day Notice of Proposed Information Collection: Enterprise Income Verification Systems; Debts Owed to Public Housing Agencies and Terminations | |
81 FR 24631 - 30-Day Notice of Proposed Information Collection: Core Performance Reporting Requirements for Competitively-Funded Grants | |
81 FR 24498 - Environmental Protection Agency Acquisition Regulation; Institutional Oversight of Life Sciences Dual Use Research of Concern | |
81 FR 24536 - Air Plan Approval and Air Quality Designation; TN; Redesignation of the Sullivan County Lead Nonattainment Area to Attainment | |
81 FR 24681 - Self-Regulatory Organizations; The NASDAQ Stock Market LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend Nasdaq Rule 7014 | |
81 FR 24668 - Self-Regulatory Organizations; The NASDAQ Stock Market LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change to Amend Options Pricing at Chapter XV, Section 2 | |
81 FR 24676 - Self-Regulatory Organizations; BOX Options Exchange LLC; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Extend the Pilot Program for the Listing and Trading of Options Settling to the RealVolTM | |
81 FR 24678 - Self-Regulatory Organizations; Chicago Board Options Exchange, Incorporated; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend the Fees Schedule | |
81 FR 24674 - Self-Regulatory Organizations; NYSE MKT LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Modifying the NYSE Amex Options Fee Schedule | |
81 FR 24492 - Approval and Promulgation of Air Quality Implementation Plans; Pennsylvania; 2011 Base Year Inventories for the 2008 8-Hour Ozone National Ambient Air Quality Standard for the Allentown-Bethlehem-Easton, Lancaster, Pittsburgh-Beaver Valley, and Reading Areas, and the Pennsylvania Portion of the Philadelphia-Wilmington-Atlantic City Area | |
81 FR 24536 - Approval and Promulgation of Air Quality Implementation Plans; Pennsylvania; 2011 Base Year Inventories for the 2008 8-Hour Ozone National Ambient Air Quality Standard for the Allentown-Bethlehem-Easton, Lancaster, Pittsburgh-Beaver Valley, and Reading Areas, and the Pennsylvania Portion of the Philadelphia-Wilmington-Atlantic City Area | |
81 FR 24500 - NASA Federal Acquisition Regulation Supplement | |
81 FR 24496 - Air Quality Plans; North Carolina; Infrastructure Requirements for the 2010 Sulfur Dioxide National Ambient Air Quality Standard | |
81 FR 24525 - Promulgation of State Implementation Plan Revisions; Infrastructure Requirements for the 2008 Lead, 2008 Ozone, 2010 NO2, | |
81 FR 24619 - National Institute of Nursing Research; Notice of Meeting | |
81 FR 24620 - National Institute of Dental & Craniofacial Research; Notice of Meeting | |
81 FR 24595 - Cross-Media Electronic Reporting: Authorized Program Revision Approval, State of Utah | |
81 FR 24603 - Cross-Media Electronic Reporting: Authorized Program Revision Approval, State of Rhode Island | |
81 FR 24596 - Cross-Media Electronic Reporting: Authorized Program Revision Approval, State of Oregon | |
81 FR 24597 - Cross-Media Electronic Reporting: Authorized Program Revision Approval, State of Louisiana | |
81 FR 24602 - Cross-Media Electronic Reporting: Authorized Program Revision Approval, State of Kansas | |
81 FR 24604 - Cross-Media Electronic Reporting: Authorized Program Revision Approval, State of Alabama | |
81 FR 24606 - Information Collection Request Submitted to OMB for Review and Approval; Comment Request; NSPS for Steel Plants: Electric Arc Furnaces and Argon Oxygen Decarburization Vessels (Renewal) | |
81 FR 24644 - Notice of Lodging of Proposed Consent Decree Under the Comprehensive Environmental Response, Compensation, and Liability Act | |
81 FR 24645 - Investigations Regarding Eligibility To Apply for Worker Adjustment Assistance | |
81 FR 24645 - California Redwood Company, A Subsidiary of Green Diamond Resource Company, Korbel, CA; California Redwood Company, Brainard Division, A Subsidiary of Green Diamond Resource Company, Including On-Site Leased Workers From Express Employment Professionals and River City Staffing, Eureka, CA; Amended Certification Regarding Eligibility To Apply for Worker Adjustment Assistance and Alternative Trade Adjustment Assistance | |
81 FR 24647 - Notice of Determinations Regarding Eligibility To Apply for Worker Adjustment Assistance | |
81 FR 24613 - Submission for OMB Review; Use of Data Universal Numbering System (DUNS) as Primary Contractor Identification | |
81 FR 24607 - Information Collection Request Submitted to OMB for Review and Approval; Comment Request; NESHAP for Perchloroethylene Dry Cleaning Facilities (Renewal) | |
81 FR 24608 - Information Collection Request Submitted to OMB for Review and Approval; Comment Request; Consolidated Superfund Information Collection Request (Renewal) | |
81 FR 24609 - Information Collection Request Submitted to OMB for Review and Approval; Comment Request; Hazardous Waste Specific Unit Requirements, and Special Waste Processes and Types (Renewal) | |
81 FR 24606 - Information Collection Request Submitted to OMB for Review and Approval; Comment Request; Part B Permit Application, Permit Modifications, and Special Permits (Renewal) | |
81 FR 24656 - Records Schedules; Availability and Request for Comments | |
81 FR 24659 - Applications and Amendments to Facility Operating Licenses and Combined Licenses Involving No Significant Hazards Considerations | |
81 FR 24464 - Black Lung Benefits Act: Disclosure of Medical Information and Payment of Benefits | |
81 FR 24621 - Changes in Flood Hazard Determinations | |
81 FR 24544 - Subgrants and Membership Fees or Dues | |
81 FR 24462 - Airworthiness Directives; Dassault Aviation | |
81 FR 24459 - Airworthiness Directives; Airbus Airplanes |
Agricultural Marketing Service
Agricultural Research Service
Animal and Plant Health Inspection Service
Food and Nutrition Service
Forest Service
Rural Housing Service
Foreign-Trade Zones Board
International Trade Administration
National Oceanic and Atmospheric Administration
Air Force Department
Energy Efficiency and Renewable Energy Office
Federal Energy Regulatory Commission
Centers for Disease Control and Prevention
Children and Families Administration
National Institutes of Health
Coast Guard
Federal Emergency Management Agency
U.S. Citizenship and Immigration Services
U.S. Customs and Border Protection
Antitrust Division
Prisons Bureau
Employment and Training Administration
Workers Compensation Programs Office
Copyright Royalty Board
Federal Aviation Administration
National Highway Traffic Safety Administration
Pipeline and Hazardous Materials Safety Administration
Comptroller of the Currency
Foreign Assets Control Office
Internal Revenue Service
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.
U.S. Office of Personnel Management.
Final rule.
The U.S. Office of Personnel Management (OPM) is issuing a final rule to abolish the Newburgh, New York, appropriated fund Federal Wage System (FWS) wage area and redefine Orange County, NY, to the New York, NY, survey area; Dutchess County, NY, to the New York area of application; Delaware and Ulster Counties, NY, to the Albany-Schenectady-Troy, NY, area of application; and Sullivan County, NY, to the Scranton-Wilkes-Barre, Pennsylvania, area of application. These changes are based on a consensus recommendation of the Federal Prevailing Rate Advisory Committee (FPRAC) to best match the counties proposed for redefinition to nearby FWS survey areas.
Madeline Gonzalez, by telephone at (202) 606-2838 or by email at
On November 30, 2015, OPM issued a proposed rule (80 FR 74715) to abolish the Newburgh, NY, appropriated fund FWS wage area and redefine Orange County, NY, to the New York, NY, survey area; Dutchess County, NY, to the New York area of application; Delaware and Ulster Counties, NY, to the Albany-Schenectady-Troy, NY, area of application; and Sullivan County, NY, to the Scranton-Wilkes-Barre, PA, area of application. FPRAC, the national labor-management committee responsible for advising OPM on matters concerning the pay of FWS employees, reviewed and recommended this change by consensus.
The 30-day comment period ended on December 30, 2015. OPM received one comment in support of the proposal and one comment regarding the effective date of the proposed change recommending retroactive applicability.
OPM defines wage areas through regulation in 5 CFR part 532. Changes in OPM's regulations are prospective, not retroactive, following an appropriate period for public comment. These changes will apply on the first day of the first applicable pay period beginning on or after 30 days following publication of the final regulations.
I certify that these regulations will not have a significant economic impact on a substantial number of small entities because they will affect only Federal agencies and employees.
Administrative practice and procedure, Freedom of information, Government employees, Reporting and recordkeeping requirements, Wages.
Accordingly, OPM is amending 5 CFR part 532 as follows:
5 U.S.C. 5343, 5346; § 532.707 also issued under 5 U.S.C. 552.
The revisions read as follows:
Agricultural Marketing Service, USDA.
Final rule.
This rule implements a recommendation from the California Desert Grape Administrative Committee (Committee) to revise the administrative rules and regulations of the Federal marketing order for grapes grown in a designated area of southeastern California (order) and the table grape import regulation. The Committee locally administers the order and is comprised of producers and handlers of grapes grown in the production area. This rule allows handlers and importers to ship grapes that do not meet the minimum grade and size quality requirements to be donated to charitable organizations. Any such grapes shall not be used for resale. The import regulation is authorized under section 608e of the Agricultural Marketing Agreement Act of 1937 and regulates the importation of table grapes into the United States. This final rule provides an additional outlet for grapes regulated under the order and assists USDA's efforts to reduce food waste in support of the U.S. Food Waste Challenge.
Effective May 26, 2016.
Kathie Notoro, Marketing Specialist, or Jeffrey Smutny, Regional Director, California Marketing Field Office, Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA, 1400 Independence Avenue SW., Stop 0237, Washington, DC 20250-0237; Telephone: (202) 720-2491, Fax: (202) 720-8938, or Email:
Small businesses may request information on complying with this regulation by contacting Antoinette Carter, Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA, 1400 Independence Avenue SW., STOP 0237, Washington, DC 20250-0237; Telephone: (202) 720-2491, Fax: (202) 720-8938, or Email:
This final rule is issued under Marketing Order No. 925 (7 CFR part 925), regulating the handling of table grapes grown in a designated area of southeastern California, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”
This final rule is also issued under section 608e (8e) of the Act, which provides that whenever certain specified commodities, including table grapes, are regulated under a Federal marketing order, imports of these commodities into the United States are prohibited unless they meet the same or comparable grade, size, quality, or maturity requirements as those in effect for the domestically produced commodities.
The Department of Agriculture (USDA) is issuing this rule in conformance with Executive Orders 12866, 13563, and 13175.
This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule is not intended to have retroactive effect.
The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. A handler is afforded the opportunity for a hearing on the petition. After the hearing, USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.
There are no administrative procedures which must be exhausted prior to any judicial challenge to the provisions of import regulations issued under section 8e of the Act.
This final rule revises the order's administrative rules and regulations and the import regulations to allow handlers and importers to ship grapes that do not meet the minimum grade and size quality requirements to be donated to charitable organizations. Any such grapes shall not be used for resale. This action provides an additional outlet for grapes regulated under the order and supports USDA's efforts to reduce food waste under the U.S. Food Waste Challenge. The change in the import regulation is required under section 8e of the Act. These actions were unanimously recommended by the Committee following deliberations at a public meeting held on November 5, 2013, and a required new Food Donation Form (CDGAC Form No. 8) was subsequently approved at a meeting held on October 30, 2014.
Section 925.54 of the order provides that regulations in effect pursuant to § 925.41, § 925.52, or § 925.55 may be modified, suspended, or terminated to facilitate handling of grapes for purposes which may be recommended by the Committee and approved by the Secretary, and that rules, regulations, and safeguards shall be prescribed to prevent grapes handled under the provisions of this section from entering the channels of trade for other than the specific purposes authorized by this section.
This final rule amends § 925.304 of the administrative rules and regulations to provide an outlet for grapes failing to meet inspection and quality requirements. The final rule allows handlers to donate such grapes to charitable organizations. Any such grapes may not be used for resale.
Accordingly, to prohibit such donated grapes from being sold, and to prevent other unauthorized distribution of such shipments, the Committee developed CDGAC Form No. 8 to track the shipment of these grapes and verify their receipt by the intended charitable organization.
Section 925.60 of the order provides authority for the Committee, with the approval of USDA, to require handlers to furnish reports and information to the Committee as needed to enable the Committee to perform its duties under the order. This rule revises § 925.160(c) of the order's administrative rules and regulations. It requires handlers donating grapes to a charitable organization to ensure CDGAC Form No. 8 is completed, signed, and furnished to the Committee within two days of receipt by the intended charity.
These actions were unanimously recommended by the Committee following deliberations at a public meeting held on November 5, 2013, and the new form was subsequently approved at a meeting held on October 30, 2014. This action provides handlers and importers with an outlet for grapes that do not meet minimum quality requirements and supports the U.S. Secretary of Agriculture's initiative to reduce, recover, and recycle food in conjunction with the U.S. Food Waste Challenge.
Under section 8e of the Act, minimum grade, size, quality, and maturity requirements for table grapes imported into the United States are established under Table Grape Import Regulation 4 (7 CFR 944.503) (import regulation), and safeguard procedures for certain commodities exempt from these requirements are established under § 944.350. A change in the California Desert Grape Regulation 6, § 925.304, that allows table grapes to be donated to charitable organizations requires a corresponding change to the requirements for imported table grapes. Similar to the domestic industry, this action allows importers to donate table grapes to charitable organizations. Sections 944.350(a)(1) and 944.503(d) and (e) are revised accordingly.
Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), the Agricultural Marketing Service (AMS) has considered the economic impact of this action on small entities. Accordingly, AMS has prepared this final regulatory flexibility analysis.
The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf.
There are approximately 13 handlers of southeastern California table grapes who are subject to regulation under the marketing order and approximately 41 grape producers in the production area. In addition, there are about 135 importers of grapes. Small agricultural service firms are defined by the Small Business Administration (SBA) as those having annual receipts of less than $7,500,000, and small agricultural producers are defined as those having annual receipts of less than $750,000 (13 CFR 121.201).
Ten of the 13 handlers subject to regulation have annual grape sales of less than $7,500,000 according to USDA Market News Service and Committee data. Based on information from the Committee and USDA's Market News Service, it is estimated that at least 10 of the 41 producers have annual receipts of less than $750,000. Thus, it may be concluded that a majority of grape handlers regulated under the order and about 10 of the producers could be classified as small entities under the SBA definitions.
Mexico, Chile, and Peru are the major countries that export table grapes to the United States. According to 2015 U.S. Census Bureau Trade Data, shipments of table grapes imported into the United States from Mexico totaled 18,004,062 18-pound lugs, from Chile totaled 41,974,714 18-pound lugs, and from Peru totaled 4,829,483 18-pound lugs. According to USDA's Foreign Agricultural Service data, the total value of table grapes imported into the United States in 2015 was $1,220,169,475. It is estimated that the average importer received $9.0 million in revenue from the sale of table grapes in 2015. Based on this information, it may be concluded that the average table grape importer is not classified as a small entity.
This final rule revises § 925.160 of the administrative rules and regulations under the order to require handlers to report to the Committee any grapes donated to charitable organizations. It also revises § 925.304 of the order's administrative rules and regulations to allow grapes that do not meet minimum quality requirements, yet are still desirable for human consumption, to be donated to charitable organizations. These changes allow the industry to participate in the U.S. Food Waste Challenge while ensuring that donated grapes are only distributed as authorized. Authority for permitting Special Purchase Shipments is provided in § 925.54. The requirement for handlers to report this information to the Committee is provided in § 925.60 of the order.
The Committee's proposal to authorize donation of grapes to charitable organizations was unanimously recommended at a public meeting on November 5, 2013. The Committee presented the Food Donation Form CDGAC No. 8 at its meeting on October 30, 2014, and subsequently submitted it to AMS for further approval. There is no direct financial effect on producers or handlers. Authority for the change to the table grape import regulation is provided in section 8e of the Act.
The Committee believes this change is beneficial to the industry and to the recipients of this donated food product. Very little impact is expected because the change in the regulatory requirements on handlers is minimal. There is one new form added to track and ensure that grapes not meeting the minimum grade and size requirements are donated to a charitable organization and not used for resale. This change does not contain any assessment or funding implications. There is no change in financial costs.
Alternatives to the proposal, including making no changes at this time, were considered. However, the Committee believes it is beneficial to allow these grapes to be donated to charitable organizations to reduce, recover, and recycle edible food product in support of the U.S. Food Waste Challenge.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the order's information collection requirements have been previously approved by the Office of Management and Budget (OMB) and assigned OMB No. 0581-0189, Generic OMB Fruit Crops. However, as a result of this action, CDGAC Form No. 8 has been submitted to OMB for approval and temporarily assigned OMB No. 0581-0290.
This action imposes minimal additional reporting and recordkeeping burden on domestic handlers who elect to donate grapes to charitable organizations using the CDGAC Form No. 8. It is estimated that the annual reporting burden for the industry will increase by 2.34 hours. All 14 handlers are in support of using this form to document the delivery of grapes to charitable organizations.
As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies.
As noted in the initial regulatory flexibility analysis, USDA has not identified any relevant Federal rules that duplicate, overlap or conflict with this final rule. Further, public comments received concerning the proposal did not address the initial regulatory flexibility analysis.
Under section 8e, whenever certain specified commodities are regulated under a Federal marketing order, imports of that commodity must meet the same or comparable grade, size, quality, and maturity requirements as those in effect for the domestic commodity. Grapes are included under section 8e, and thus importers of table grapes are required to have such grapes inspected. A change that allows certain domestic table grapes to be donated to charitable organizations requires corresponding changes to the requirements for imported table grapes.
Importers already complete the Importer's Exempt Commodity Form (FV-6), which provides for certain authorized imported commodities to be diverted to alternative channels such as processing, animal feed, and charities. With this change, §§ 944.350(a)(1) and 944.503(d) and (e) are revised to allow for imported grapes to be donated for consumption by charitable organizations. This action does not change the format of the FV-6 form nor does it affect the burden. It is unlikely to impose additional reporting and recordkeeping burden on importers who elect to donate grapes to charitable organizations. Importers are not required to complete the CDGAC Form No. 8. CDGAC Form No. 8 is only intended to cover deliveries of domestically produced grapes to charitable organizations by domestic grape handlers.
AMS is committed to complying with the E-Government Act, to promote the use of the internet and other information technologies, to provide increased opportunities for citizen access to Government information and services, and for other purposes.
The Committee's meetings were widely publicized throughout the California table grape production area. All interested persons were invited to attend both meetings and encouraged to participate in Committee deliberations. Like all Committee meetings, the November 5, 2013, and the October 30, 2014, meetings were public, and all entities, both large and small, were encouraged to express their views on this issue.
A proposed rule concerning this action was published in the
Two comments were received during the comment period in favor of the proposal. One comment simply stated that the commenter liked the proposal. The other commenter was also in favor of the proposal and recommended that the donated grapes be “rechecked” by the receiving charitable organization to ensure edibility. Table grapes that do not meet minimum grade and size requirements can still be wholesome and safe to eat. The regulations contain safeguards to ensure that table grapes donated to charitable organizations are accepted by those organizations for their intended use (food distribution) through the use of the new CDGAC Form No. 8 (for domestic grapes) and Form FV-6 (for imported grapes). The Committee and USDA believe this change helps reduce food waste by providing an outlet for wholesome and edible table grapes. No comments were received on the proposed information collection.
Accordingly, no changes will be made to the rule as proposed, based on the comments received.
A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at:
After consideration of all relevant matter presented, including the information and recommendation submitted by the Committee and other available information, it is hereby found that this rule, as hereinafter set forth, will tend to effectuate the declared policy of the Act.
In accordance with section 8e of the Act, the United States Trade Representative has concurred with the issuance of this rule.
Grapes, Marketing agreements, Reporting and recordkeeping requirements.
Avocados, Food grades and standards, Grapefruit, Grapes, Imports, Kiwifruit, Limes, Olives, Oranges.
For the reasons set forth in the preamble, 7 CFR parts 925 and 944 are amended as follows:
7 U.S.C. 601-674.
(c) Handlers that donate grapes to charitable organizations pursuant to § 925.304(c) shall submit a completed Food Donation Form (CDGAC Form No. 8) to the Committee within 2 days of receipt by the charitable organization. Such form shall include the following: The name of the producer; the name of the handler; loading location and date; inspection location and date; Variety(s) Federal State Inspection Service (FSIS) Certificate number(s); lug weight (pounds); number of lugs; label; signature of person responsible for loading at handling facility; recipient charity name; how many lugs received; signature of responsible charity recipient and date received. Any such grapes shall not be used for resale.
(c)
(a) * * *
(1) Avocados, grapefruit, kiwifruit, olives, oranges, prune variety plums (fresh prunes) and table grapes for consumption by charitable institutions or distribution by relief agencies;
(d) Any lot or portion thereof which fails to meet the import requirements, and is not being imported for purposes of processing or donation to charitable organizations, prior to or after reconditioning may be exported or disposed of under the supervision of the Federal or Federal-State Inspection Service with the costs of certifying the disposal of said lot borne by the importer.
(e) The grade, size, quality, and maturity requirements of this section shall not be applicable to grapes imported for processing or donation to charitable organizations, but shall be subject to the safeguard provisions contained in § 944.350.
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Final rule.
We are superseding Airworthiness Directive (AD) 2014-03-14 for all Airbus Model A330-200 and -300 series airplanes, and Model A340-200, -300, -500, and -600 series airplanes. AD 2014-03-14 required removing bulb-type maintenance lights; installing a drain mast on certain airplanes; and installing muffs on connecting bleed elements on certain airplanes. For certain Model A340-200 and -300 series airplanes, this new AD also requires replacing certain insulation sleeves with new insulation sleeves. This AD results from fuel system reviews conducted by the airplane manufacturer. We are issuing this AD to prevent ignition sources inside fuel tanks, which, in combination with flammable fuel vapors, could result in fuel tank explosions and consequent loss of the airplane.
This AD is effective May 31, 2016.
The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of May 31, 2016.
The Director of the Federal Register approved the incorporation by reference of certain other publications listed in this AD as of March 26, 2014 (79 FR 9382, February 19, 2014).
For service information identified in this final rule, contact Airbus SAS, Airworthiness Office—EAL, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 45 80; email
You may examine the AD docket on the Internet at
Vladimir Ulyanov, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057-3356; telephone 425-227-1138; fax 425-227-1149.
We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2014-03-14, Amendment 39-17752 (79 FR 9382, February 19, 2014) (“AD 2014-03-14”). AD 2014-03-14 applied to all Airbus Model A330-200 and -300 series airplanes, and Model A340-200, -300, -500, and -600 series airplanes. The NPRM published in the
The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA Airworthiness Directive 2014-0148, dated June 13, 2014 (referred to after this the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all Airbus Model A330-200 and -300 series airplanes, and Model A340-200, -300, -500, and -600 series airplanes. The MCAI states:
[Subsequent to accidents involving Fuel Tank Systems in flight and on ground] * * *, the FAA published Special Federal Aviation Regulation (SFAR) 88 [(66 FR 23086, May 7, 2001)], and the Joint Aviation Authorities (JAA) published Interim Policy INT/POL/25/12.
In response to these regulations, a global design review conducted by Airbus on the A330 and A340 type design Section 19, which is a flammable fluid leakage zone and a zone adjacent to a fuel tank, highlighted potential deviations. The specific identified cases were that in-flight fuel drainage is insufficient on A340-500/-600 aeroplanes, maintenance lights are not qualified explosion-proof, and hot surfaces may exist on bleed systems during normal/failure operations.
This condition, if not corrected, in combination with a fuel leak generating flammable vapours in the area, could result in a fuel tank explosion and consequent loss of the aeroplane.
To address this unsafe condition, Airbus developed various modifications of the aeroplane, to be embodied in service.
Consequently, EASA issued AD 2013-0033 [
Since that [EASA] AD was issued, it was reported that, for A340-200/-300 aeroplanes, accomplishment instructions in the applicable Airbus Service Bulletins (SB) for aeroplanes in Configurations 002 and 005 were detailed in Configuration 003 and, conversely, accomplishment instructions for aeroplane[s] in Configuration 003 were detailed in Configurations 002 and 005. This can lead to incorrect installation of some insulation sleeves on the Auxiliary Power Unit (APU) Air Bleed Ducts between Frame 83 and 84 for configurations 002, 003 and 005 as per Airbus SB A340-36-4035 at original issue. Prompted by this finding, Airbus revised the affected SB with additional work required for aeroplanes included in configurations 002, 003 and 005 that were modified using the original issue of the SB.
For the reasons described above, this [EASA] AD retains the requirements of EASA AD 2013-0033, which is superseded, incorporates reference to the corrected Airbus SB A340-36-4035 Revision 01 and requires the additional work as specified in Airbus SB A340-36-4035 Revision 01 for aeroplanes already modified per the original SB A340-36-4035.
The additional work is replacing the insulation sleeves between FR83 and FR84 with new insulation sleeves. You may examine the MCAI in the AD docket on the Internet at
We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM or on the determination of the cost to the public.
Airbus has issued Service Bulletin A330-36-3038, Revision 01, dated May 11, 2015. The additional work specified in this service information is minimal and consists of modifying the routing of a harness. This additional work is not required for airplanes on which the actions previously required by paragraph (h) of AD 2014-03-14 have been done before the effective date of this AD. Paragraph (h) of this AD retains the requirements of paragraph (h) of AD 2014-03-14. We have revised paragraph (h)(1) of this AD to specify Airbus Service Bulletin A330-36-3038, Revision 01, dated May 11, 2015, as an appropriate source of service information.
We reviewed the available data and determined that air safety and the public interest require adopting this AD with the change described previously and minor editorial changes. We have determined that these changes:
• Are consistent with the intent that was proposed in the NPRM for correcting the unsafe condition; and
• Do not add any additional burden upon the public than was already proposed in the NPRM.
Airbus has issued the following service bulletins.
• Airbus Service Bulletin A330-33-3041, Revision 02, dated November 7, 2013, which describes procedures for removing bulb-type maintenance lights.
• Airbus Service Bulletin A330-36-3037, Revision 02, including Appendix 01, dated April 7, 2014, which describes procedures for modifying the bleed leak detection loop of the auxiliary power unit (APU).
• Airbus Service Bulletin A330-36-3038, Revision 01, dated May 11, 2015, which describes procedures for bleed leak detection loop modification of the APU.
• Airbus Service Bulletin A340-33-4026, Revision 02, dated November 7, 2013, which describes procedures for removing bulb-type maintenance lights.
• Airbus Service Bulletin A340-36-4033, Revision 02, including Appendix 01, dated May 19, 2014, which describes procedures for bleed leak detection loop modification of the APU.
• Airbus Service Bulletin A340-36-4035, including Appendix 01, dated September 18, 2012, which describes procedures for installing muffs on connecting bleed elements on certain airplanes.
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
We estimate that this AD affects 43 Model A330 series airplanes of U.S. registry. There are no Model A340 airplanes registered in the U.S.
The actions required by AD 2014-03-14, and retained in this AD take about 21 work-hours per product, at an average labor rate of $85 per work-hour. Required parts cost about $5,219 per product. Based on these figures, the estimated cost of the actions that were required by AD 2014-03-14 is $7,004 per product.
We also estimate that it will take about 6 work-hours per product to comply with the basic requirements of this AD. The average labor rate is $85 per work-hour. Required parts will cost about $279 per product. Based on these figures, we estimate the cost of this AD on U.S. operators to be $33,927, or $789 per product.
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.
We determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
3. Will not affect intrastate aviation in Alaska; and
4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD is effective May 31, 2016.
This AD replaces AD 2014-03-14, Amendment 39-17752 (79 FR 9382, February 19, 2014) (“AD 2014-03-14”).
This AD applies to the Airbus airplanes, certificated in any category, specified in paragraphs (c)(1) and (c)(2) of this AD, all manufacturer serial numbers.
(1) Airbus Model A330-201, -202, -203, -223, -243, -301, -302, -303, -321, -322, -323, -341, -342, and -343 airplanes.
(2) Airbus Model A340-211, -212, -213, -311, -312, -313, -541, and -642 airplanes.
Air Transport Association (ATA) of America Code 26, Fire protection; 33, Lights; 36, Pneumatic; 53, Fuselage.
This AD results from fuel system reviews conducted by the airplane manufacturer. We are issuing this AD to prevent ignition sources inside fuel tanks, which, in combination with flammable fuel vapors, could result in fuel tank explosions and consequent loss of the airplane.
Comply with this AD within the compliance times specified, unless already done.
This paragraph restates the requirements of paragraph (g) of AD 2014-03-14, with new service information. Except for airplanes on which Airbus Modification 56739 has been incorporated in production: Within 26 months after March 26, 2014 (the effective date of AD 2014-03-14), remove the maintenance lights, in accordance with the Accomplishment Instructions of the applicable Airbus service information specified in paragraphs (g)(1), (g)(2), and (g)(3) of this AD.
(1) Airbus Mandatory Service Bulletin A330-33-3041, Revision 01, dated July 10, 2012; or Airbus Service Bulletin A330-33-3041, Revision 02, dated November 7, 2013 (for Model A330 series airplanes). As of the effective date of this AD, use only Airbus Service Bulletin A330-33-3041, Revision 02, dated November 7, 2013, for the actions required by paragraph (g) of this AD.
(2) Airbus Mandatory Service Bulletin A340-33-4026, Revision 01, dated July 10, 2012; or Airbus Service Bulletin A340-33-4026, Revision 02, dated November 7, 2013 (for Model A340-200 and -300 series airplanes). As of the effective date of this AD, use only Airbus Service Bulletin A340-33-4026, Revision 02, dated November 7, 2013, for the actions required by paragraph (g) of this AD.
(3) Airbus Mandatory Service Bulletin A340-33-5006, dated January 3, 2012 (for Model A340-500 and -600 series airplanes).
For Model A340-500 and -600 series airplanes, Airbus has issued Airbus Service Bulletin A340-33-5007 to introduce halogen-type lights, which are qualified as explosion-proof, and that can be installed (at operators' discretion) after removal of the non-explosion-proof lights required by paragraph (g) of this AD. For Model A330 series airplanes and Model A340-200 and -300 series airplanes, Airbus has issued Airbus Service Bulletins A330-33-3042 and A340-33-4027 for the installation of similar lights.
This paragraph restates the requirements of paragraph (h) of AD 2014-03-14, with new service information. For Model A330-200 and -300 series airplanes, and Model A340-200 and -300 series airplanes, except those airplanes on which Airbus Modification 52260 has been incorporated in production: Within 26 months after March 26, 2014 (the effective date of AD 2014-03-14), install insulation muffs on the connecting auxiliary power unit (APU) bleed air duct, in accordance with the Accomplishment Instructions of the applicable Airbus service information specified in paragraphs (h)(1), (h)(2), and (h)(3) of this AD.
(1) Airbus Service Bulletin A330-36-3038, dated January 16, 2012; or Airbus Service Bulletin A330-36-3038, Revision 01, dated May 11, 2015; for Model A330 series airplanes on which Airbus Service Bulletin A330-36-3032 has been incorporated. As of the effective date of this AD, use only Airbus Service Bulletin A330-36-3038, Revision 01, dated May 11, 2015.
(2) Airbus Mandatory Service Bulletin A330-36-3040, Revision 01, dated November 26, 2012, for Model A330 series airplanes on which Airbus Service Bulletin A330-36-3032 has not been incorporated.
(3) Airbus Mandatory Service Bulletin A340-36-4035, Revision 01, dated September 24, 2013, for Model A340 series airplanes.
This paragraph restates the alternative action specified in paragraph (i) of AD 2014-03-14, with new service information. For Model A330 series airplanes on which the modification specified in Airbus Service Bulletin A330-36-3032 has not been incorporated, and for Model A340 series airplanes: Doing the bleed leak detection loop modification of the APU, in accordance with the Accomplishment Instructions of the applicable Airbus service information specified in paragraphs (i)(1) and (i)(2) of this AD, is an acceptable alternative to the actions required by paragraph (h) of this AD, provided the modification is accomplished within 26 months after March 26, 2014 (the effective date of AD 2014-03-14).
(1) Airbus Service Bulletin A330-36-3037, Revision 02, including Appendix 01, dated April 7, 2014.
(2) Airbus Service Bulletin A340-36-4033, Revision 02, including Appendix 01, dated May 19, 2014.
This paragraph restates the requirements of paragraph (j) of AD 2014-03-14, with no changes. For Model A340-500 and -600 series airplanes, except those on which Airbus Modification 54636 or 54637 has been incorporated in production: Within 26 months after March 26, 2014 (the effective date of AD 2014-03-14), install a drain mast between frame (FR) 80 and FR83, in accordance with the Accomplishment Instructions of Airbus Mandatory Service Bulletin A340-53-5031, Revision 02, dated August 3, 2011.
For Model A340 series airplanes in configurations 002, 003, and 005, as described in Airbus Service Bulletin A340-36-4035, including Appendix 01, dated September 18, 2012, that have been modified before the effective date of this AD as specified in Airbus Service Bulletin A340-36-4035, including Appendix 01, dated September 18, 2012: Within 14 months after the effective date of this AD, replace the insulation sleeves between FR83 and FR84 with new insulation sleeves, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A340-36-4035, Revision 01, dated September 24, 2013.
(1) This paragraph provides credit for actions required by paragraph (g) of this AD, if those actions were performed before March 26, 2014 (the effective date of AD 2014-03-14), using Airbus Service Bulletin A330-33-
(2) This paragraph provides credit for actions required by paragraph (h) of this AD, if those actions were performed before March 26, 2014 (the effective date of AD 2014-03-14), using Airbus Service Bulletin A330-36-3040, dated September 18, 2012. This service information is not incorporated by reference in this AD.
(3) For Model A340 series airplanes in configurations 001 and 004, as described in Airbus Service Bulletin A340-36-4035, including Appendix 01, dated September 18, 2012: This paragraph provides credit for actions required by paragraph (h) of this AD, if those actions were performed before the effective date of this AD using Airbus Service Bulletin A340-36-4035, including Appendix 01, dated September 18, 2012.
(4) This paragraph provides credit for actions required by paragraph (j) of this AD, if those actions were performed before March 26, 2014 (the effective date of AD 2014-03-14), using Airbus Service Bulletin A340-53-5031, dated July 31, 2006; or Airbus Service Bulletin A340-53-5031, Revision 01, dated January 10, 2008; as applicable. This service information is not incorporated by reference in this AD.
The following provisions also apply to this AD:
(1)
(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 paragraphs (g) and (h) of AD 2014-03-14 are approved as AMOCs for the corresponding provisions of paragraphs (g) and (h) of this AD.
(2)
(3)
(1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA Airworthiness Directive 2014-0148, dated June 13, 2014, for related information. This MCAI may be found in the AD docket on the Internet at
(2) Service information identified in this AD that is not incorporated by reference is available at the addresses specified in paragraphs (o)(5) and (o)(6) of this AD.
(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless this AD specifies otherwise.
(3) The following service information was approved for IBR on May 31, 2016.
(i) Airbus Service Bulletin A330-33-3041, Revision 02, dated November 7, 2013.
(ii) Airbus Service Bulletin A330-36-3037, Revision 02, including Appendix 01, dated April 7, 2014.
(iii) Airbus Service Bulletin A330-36-3038, Revision 01, dated May 11, 2015.
(iv) Airbus Service Bulletin A340-33-4026, Revision 02, dated November 7, 2013.
(v) Airbus Service Bulletin A340-36-4033, Revision 02, including Appendix 01, dated May 19, 2014.
(vi) Airbus Service Bulletin A340-36-4035, including Appendix 01, dated September 18, 2012.
(4) The following service information was approved for IBR on March 26, 2014 79 FR 9382, February 19, 2014).
(i) Airbus Mandatory Service Bulletin A330-33-3041, Revision 01, dated July 10, 2012.
(ii) Airbus Mandatory Service Bulletin A330-36-3040, Revision 01, dated November 26, 2012.
(iii) Airbus Mandatory Service Bulletin A340-33-4026, Revision 01, dated July 10, 2012.
(iv) Airbus Mandatory Service Bulletin A340-33-5006, dated January 3, 2012.
(v) Airbus Mandatory Service Bulletin A340-36-4035, Revision 01, dated September 24, 2013.
(vi) Airbus Mandatory Service Bulletin A340-53-5031, Revision 02, dated August 3, 2011.
(5) For service information identified in this AD, contact Airbus SAS, Airworthiness Office—EAL, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 45 80; email
(6) 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.
(7) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to:
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Final rule.
We are adopting a new airworthiness directive (AD) for all Dassault Aviation Model FALCON 7X airplanes. This AD was prompted by reports of multiple cases of ram air turbine (RAT) blade damage. This AD requires deployment of the RAT, replacement of the RAT placard with a new RAT placard, and re-identification of the RAT. We are issuing this AD to prevent blade damage to the RAT, which could prevent RAT deployment in flight during an emergency, possibly resulting in reduced control of the airplane.
This AD is effective May 31, 2016.
The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of May 31, 2016.
For service information identified in this final rule, contact Dassault Falcon Jet, P.O. Box 2000, South Hackensack, NJ 07606; telephone: 201-440-6700; Internet:
You may examine the AD docket on the Internet at
Tom Rodriquez, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057-3356; telephone: 425-227-1137; fax: 425-227-1149.
We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all Dassault Aviation Model FALCON 7X airplanes. The NPRM published in the
The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2015-0076, dated May 6, 2015 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all Dassault Aviation Model FALCON 7X airplanes. The MCAI states:
A few cases of Ram Air Turbine (RAT) blade damage have been reported during maintenance operations. This kind of damage is caused by an incorrect locking of RAT rotor, due to improper positioning of blades at beginning of retraction, and locking check during retraction, which likely occurs during stowage of the RAT, after its deployment for maintenance purposes.
This condition, if not corrected, could prevent RAT deployment in flight during an emergency, possibly resulting in reduced control of the aeroplane.
To address this potential unsafe condition, Dassault Aviation issued Service Bulletin (SB) 7X-289, which provides instructions to smoothly deploy the RAT and install an improved placard to ensure proper RAT stowage/retraction after maintenance.
For the reasons described above, this [EASA] AD requires replacement of the existing RAT placard with a new placard and RAT re-identification. This [EASA] AD also provides conditions for installation of a RAT on an aeroplane.
You may examine the MCAI in the AD docket on the Internet at
We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM or on the determination of the cost to the public.
We reviewed the relevant data and determined that air safety and the public interest require adopting this AD as proposed except for minor editorial changes. We have determined that these minor changes:
• Are consistent with the intent that was proposed in the NPRM for correcting the unsafe condition; and
• Do not add any additional burden upon the public than was already proposed in the NPRM.
We reviewed Dassault Service Bulletin 7X-289, dated January 21, 2015. The service information describes procedures for deployment of the RAT, replacement of the RAT placard with a new RAT placard, and re-identification of the RAT. 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
We estimate that this AD affects 45 airplanes of U.S. registry.
We also estimate that it will take about 4 work-hours per product to comply with the basic requirements of this AD. The average labor rate is $85 per work-hour. Required parts will cost about $121 per product. Based on these figures, we estimate the cost of this AD on U.S. operators to be $20,745, or $461 per product.
According to the manufacturer, some of the costs of this AD may be covered under warranty, thereby reducing the cost impact on affected individuals. We do not control warranty coverage for affected individuals. As a result, we have included all costs in our cost estimate.
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.
We determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
3. Will not affect intrastate aviation in Alaska; and
4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD is effective May 31, 2016.
None.
This AD applies to Dassault Aviation Model FALCON 7X airplanes, certificated in any category, all serial numbers.
Air Transport Association (ATA) of America Code 24, Electrical power.
This AD was prompted by reports of multiple cases of ram air turbine (RAT) blade damage. We are issuing this AD to prevent blade damage to the RAT, which could prevent RAT deployment in flight during an emergency, possibly resulting in reduced control of the airplane.
Comply with this AD within the compliance times specified, unless already done.
Except as provided by paragraph (h) of this AD: Within 28 months or during the next accomplishment of the RAT functional test, whichever occurs first after the effective date of this AD, deploy the RAT, replace the RAT placard with a new RAT placard, and re-identify the RAT part number (P/N) 1705673A to a part number identified in paragraph (g)(1) or (g)(2) of this AD, in accordance with the Accomplishment Instructions of Dassault Service Bulletin 7X-289, dated January 21, 2015.
(1) Change P/N 1705673A to P/N 1705673B.
(2) Change P/N 1705673A to a part number that is approved as a replacement for P/N 1705673A and approved as part of the type design by the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA; or the European Aviation Safety Agency (EASA); or Dassault Aviation's EASA Design Organization Approval (DOA); after the issue date of Dassault Service Bulletin 7X-289, dated January 21, 2015.
An airplane on which Dassault Aviation Modification M1428 has been embodied in production is not affected by the requirements of paragraph (g) of this AD, provided no RAT P/N 1705673A has been installed on that airplane since first flight.
As of the effective date of this AD, no person may install a RAT having P/N 1705673A, on any airplane.
The following provisions also apply to this AD:
(1)
(2)
Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA AD 2015-0076, dated May 6, 2015, for related information. This MCAI may be found in the AD docket on the Internet at
(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless this AD specifies otherwise.
(i) Dassault Service Bulletin 7X-289, dated January 21, 2015.
(ii) Reserved.
(3) For service information identified in this AD, contact Dassault Falcon Jet, P.O. Box 2000, South Hackensack, NJ 07606; telephone: 201-440-6700; Internet:
(4) You may view this service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221.
(5) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to:
Office of Workers' Compensation Programs, Labor.
Final rule.
This final rule revises the regulations implementing the Black Lung Benefits Act to address certain procedural issues that have arisen in claim adjudications and other technical issues. To protect miners' health, assist parties without adequate legal representation, and enhance the accuracy of benefits entitlement decisions, the final rule includes a new provision that requires all parties to exchange with each other any medical information developed in connection with a claim for benefits and allows for the imposition of sanctions for failure to comply with the rule. The final rule also clarifies a liable coal mine operator's obligation to pay effective benefits awards by requiring payment before allowing the operator to challenge the
This rule is effective May 26, 2016.
Michael Chance, Director, Division of Coal Mine Workers' Compensation, Office of Workers' Compensation Programs, U.S. Department of Labor, 200 Constitution Avenue NW., Suite N-3520, Washington, DC 20210. Telephone: 1-800-347-2502. This is a toll-free number. TTY/TDD callers may dial toll-free 1-800-877-8339 for further information.
The Black Lung Benefits Act (BLBA), 30 U.S.C. 901-944, provides for the payment of benefits to coal miners and certain of their dependent survivors on account of total disability or death due to coal workers' pneumoconiosis. 30 U.S.C. 901(a);
On April 29, 2015, the Department proposed revising the BLBA's implementing regulations to resolve several procedural issues that had arisen in claims administration and adjudication, and make other technical changes. 80 FR 23743-54 (Apr. 29, 2015) (NPRM). Each of these issues and the comments received in response to the proposed rule are fully addressed in the Section-By-Section Explanation below.
Congress granted the Secretary broad rulemaking authority to administer the BLBA: “The Secretary of Labor [is] authorized to issue such regulations as [he] deems appropriate to carry out the provisions of this subchapter.” 30 U.S.C. 936(a).
Section 923(b), which incorporates section 205(a) of the Social Security Act, 30 U.S.C. 923(b) (incorporating 42 U.S.C. 405(a)), gives the Department wide latitude in regulating evidentiary matters in claims adjudications. Specifically, section 205(a) grants the Secretary authority to “adopt reasonable and proper rules and regulations to regulate and provide for the nature and extent of the proofs and evidence and the method of taking and furnishing the same in order to establish the right to benefits hereunder.”
Section 932(a), 30 U.S.C. 932(a), grants similarly strong regulatory authority to the Secretary. This section incorporates various provisions from the Longshore and Harbor Workers' Compensation Act (Longshore Act), 33 U.S.C. 901-950, but further authorizes the Secretary to “prescribe in the
One of the incorporated Longshore Act provisions, section 23(a), also provides important statutory authority for this rulemaking. 33 U.S.C. 923(a), as incorporated by 30 U.S.C. 932(a). This section relieves the Department from traditional rules of procedure or evidence in claims determinations and plainly elevates truth seeking over litigation gamesmanship: “the [adjudication officer] shall not be bound by common law or statutory rules of evidence or by technical or formal rules of procedure, except as provided by this chapter; but may make such investigation or inquiry or conduct such hearing in such manner as to best ascertain the rights of the parties.”
The Department received 18 comments, some joined by multiple individuals or entities, in response to the NPRM. Commenters included miners, benefits claimants, their representatives, a labor union, a coal mine company, an insurance company, industry and insurance trade associations, and one member of Congress. Five of the comments expressed general concerns about the black lung program and the difficulties miners face in obtaining benefits. The remaining comments addressed the proposed rules more specifically and are discussed below in the Section-by-Section Explanation. The Department appreciates these comments and has made several revisions to the final rule in response.
The Department received no comments on the proposed revisions replacing the word “shall” with the word “must” or other appropriate plain-language phrase throughout the amended regulatory sections.
(a) Section 725.310 implements section 22 of the Longshore Act, 33 U.S.C. 922, as incorporated into the BLBA by 30 U.S.C. 932(a). Section 22 generally allows for the modification of claim decisions based on a mistake of fact or a change in conditions up to one year after the last payment of benefits or denial of a claim.
The Department proposed adding a new paragraph (e) to this regulation to ensure that responsible operators (and their insurance carriers) fully discharge their payment obligations while pursuing modification of a benefits award. 80 FR 23744-45, 23751. In the absence of a Benefits Review Board or court-ordered stay of payments, the proposed rule required that an
(b) The Department received several comments addressing proposed paragraph (e). Four commenters expressed support for the proposal. Noting that modification proceedings can add years to the claims process and citing examples, one commenter praised this rule as pragmatic because it allows operators with legitimate defenses to pursue modification while reducing the incentive for operators to improperly use modification as a means to delay payment of benefits. Another commenter praised the proposal as clearly consistent with the Act and agreed with the Department's position that the Trust Fund should not be burdened with paying benefits on behalf of operators during the modification period. Two additional commenters expressed general support for the rule.
Six commenters opposed the rule, arguing either that the Department should withdraw the rule completely or that it should be revised. Several of these commenters argue that the proposed rule should be withdrawn because it is unauthorized by law, unfair, and unnecessary. These commenters also argue that the rule will effectively deprive operators of the opportunity to challenge medical expenses and attorneys' fees.
The Department has fully considered the comments received and determined that the rule should not be withdrawn. The Department has, however, revised the final rule to address the commenters' concerns regarding medical expenses and attorneys' fees.
(c) As explained in the NPRM, 80 FR 23744-45, Congress established the Trust Fund in 1977 to serve as a secondary payor when there is no operator that may be held liable or when the liable operator defaults on its payment obligations. Congress envisioned the Trust Fund as a payor of last resort, and intended to “ensure that individual coal operators rather than the trust fund bear the liability for claims arising out of such operators' mines to the maximum extent feasible.” S. Rep. No. 95-209 at 9, reprinted in Committee on Education and Labor, House of Representatives, 96th Cong., Black Lung Benefits Act and Black Lung Benefits Revenue Act of 1977 at 612 (Comm. Print) (1979).
Yet operators were not always meeting their payment obligations under effective benefit awards, relying instead on the Trust Fund to pay benefits while they appealed or sought modification. The Department attempted to resolve any confusion on this issue when it promulgated extensive revisions to the black lung program regulations in 2000. 65 FR 80009-11 (Dec. 20, 2000). In that rulemaking, the Department revised § 725.502 with the specific intent of clarifying when a benefits award was “effective,” and thus payable by the liable operator. 62 FR 3366 (Jan. 22, 1997) (with revisions to § 725.502, “[t]he Department hopes to increase operator compliance with effective awards.”); 65 FR 80009 (Dec. 20, 2000) (“The most important changes [to § 725.502] were designed to make clear to responsible operators their obligations under the terms of an effective award of benefits even though the claim might still be in litigation.”). The Department noted that operators, contrary to Congressional intent, routinely used the Trust Fund as a surrogate to “reduce the risk of losing interim payments in the event the award is reversed.” 64 FR 55000 (Oct. 8, 1999). The Department clearly expressed its position that operators, and not the Trust Fund, are required to pay benefits pursuant to an effective award notwithstanding the pendency of a modification petition. 64 FR 55000-01.
The Department's efforts in 2000, however, have not remedied the problem. Operators often do not meet their legal obligation to pay benefits while challenging effective awards, whether by appeal to the Benefits Review Board or appropriate court, or by seeking modification. Cases like those cited in the NPRM—including
Thus, the rule addresses a longstanding problem; it is not, as some commenters suggest, simply a reaction to the concerns Judge Hamilton expressed in his
(d) Several commenters argue that no language in either the text or legislative
This scenario also demonstrates why Congress incorporated the Longshore Act provisions into the BLBA with the qualification that the Department has authority to promulgate rules tailoring the incorporated provisions to the black lung program's specific needs. As discussed above (
These same commenters also argue that the proposed regulation violates the Black Lung Benefits Revenue Act of 1977, which created the Trust Fund and specifies the circumstances under which it may pay benefits. The Revenue Act, codified at 26 U.S.C. 9501(d), authorizes the Trust Fund to pay benefits if the responsible operator either has not commenced payment within 30 days of an initial determination of eligibility, or has not made a payment within 30 days of its due date. 26 U.S.C. 9501(d). By regulation, the Department has provided that such payments by the Trust Fund are mandatory.
(e) Several commenters allege that the proposed rule effectively denies the modification remedy to operators by eliminating their financial incentive to pursue modification. They contend that even if operators are successful on modification, they will be unable to recoup the benefits that were paid pursuant to previously effective awards.
The commenters allude to substantive and procedural reasons that operators may struggle to recover overpayments. Substantively, overpayments may not be recovered when the claimant is without fault in receiving the overpayment and if recovery would defeat the purpose of the Act or be against equity and good conscience. 20 CFR 725.542. This is true whether the overpayment is owed to an operator or to the Trust Fund.
Procedurally, these commenters argue that operators encounter difficulties in obtaining overpayment orders from the Department, and then in enforcing them against claimants because the BLBA does not grant jurisdiction to any court for this purpose. Overpayment proceedings are governed by §§ 725.547(b) and 725.548. 20 CFR 725.547(b), 725.548. Section 725.547(b) specifies that “[n]o operator or carrier may recover, or make an adjustment of, an overpayment without prior application to and approval” by the
Operator enforcement of overpayment orders, however, is an issue that is outside the scope of this rulemaking. Because this rule does not impose any new obligations on operators (
In sum, this rule does not impose any payment obligations on operators that do not exist currently, and thus should have no impact on operators' incentive to pursue modification when they believe it is warranted.
(f) The commenters contend that this rule is unfair because claimants and operators are treated differently. Specifically, operators must demonstrate that they have complied with their payment obligations before seeking modification of an award, but claimants are not similarly required to repay any overpaid benefits before seeking modification of a denial.
An overpayment could occur in any case where an adjudicator awards benefits to the claimant—thereby entitling the claimant to interim benefit payments pending final adjudication—and a higher-level adjudicator or appellate body denies the claim.
Claimants only have one year from the date of a denial of benefits to request modification. Yet waiver determinations commonly take more than that one year to complete. They are factually involved, requiring compilation of a completely different record addressing the claimant's role in creating the overpayment and the claimant's current financial position. As in a benefits claim proceeding, a district director's waiver decision is not binding if the claimant requests an administrative law judge hearing, and no repayment by the claimant is due until after the administrative law judge considers the waiver request.
This situation is not comparable to an operator's refusal to pay benefits pursuant to an effective award. Under an effective award, an operator is legally required, by both the BLBA and its implementing regulations, to pay benefits without any further action. 33 U.S.C. 921(b)(3) and (c), as incorporated by 30 U.S.C. 932(a); 20 CFR 725.502;
(g) Although the Department has determined that proposed § 725.310(e) should be promulgated, the final rule contains several revisions based on comments received.
Several commenters contend that the rule would require an operator who wants to challenge a particular medical expense or an attorney's fee award to delay seeking modification until ancillary litigation regarding the disputed amount has concluded. The comment reveals an ambiguity in the proposed rule that the Department has clarified in the final rule by more specifically describing in § 725.310(e)(1) which awards an operator must pay before pursuing modification.
Miners who meet the BLBA's entitlement criteria are entitled to medical benefits for treatments necessitated by their pneumoconiosis and resultant disability. 20 CFR 725.701(a). A typical award of benefits will order the responsible operator to pay medical benefits generally, but will not contain findings as to whether any specific medical expense is compensable under the Act and regulations. The regulations recognize several valid reasons why a particular bill may be disputed, including that the medical service or supply was not for a pulmonary disorder or was unnecessary. 20 CFR 725.701(e). Operators have the right to dispute their liability for individual medical bills or charges and to take an unresolved dispute over the compensability of a medical bill to the Office of Administrative Law Judges for resolution.
Thus, it is not uncommon for there to be multiple effective orders compelling an employer to pay medical benefits in
The commenters similarly contend that the proposed rule would require employers to delay seeking modification until ancillary litigation regarding attorneys' fees is concluded. The proposed rule requires that attorneys' fees be paid before an employer is allowed to pursue modification provided two conditions are met: The fee must be “approved,” and the underlying benefits award must be final (
In proposing § 725.310(e)(1), the Department intended to require operators to pay only those amounts that are otherwise due and payable as a precondition to seeking modification. With regard to attorney fees, the case law construing section 28 of the Longshore Act, the source of the BLBA's attorneys' fee provision (
Two commenters object to proposed § 725.310(e)(1)(ii), which requires employers to reimburse the Trust Fund for benefits paid to claimants “with such penalties and interest as are appropriate” prior to seeking modification. The commenters assert that the term “penalties” is ambiguous and confusing and that its meaning should be clarified. They note that the Department has proposed amending other regulations (§§ 725.601 and 725.607), in part to make clear that additional compensation is not a “penalty.” The commenters also suggest that the modifying clause, “as are appropriate,” could be read as a grant of discretion to the adjudicator to fashion extra-regulatory penalties.
The commenters are correct that the term “penalties” is not intended to refer to the additional compensation that is payable to claimants under § 725.607, and the Department did not intend to authorize adjudicators to assess new penalties against operators. The proposed rule refers to certain statutory and regulatory civil money penalties that are payable to the Trust Fund. These penalties may be imposed for failure to secure the payment of benefits,
The Department has revised § 725.310(e) in the final rule to reflect these comments and to simplify the rule. Paragraph (e)(1) now defines “effective” and “final” orders by reference to the appropriate regulations. Paragraph (e)(2) retains the general requirement that operators must meet their payment obligations before pursuing modification, which appeared in proposed paragraph (e)(1). The Department has removed the phrase “currently effective” in describing orders that must be paid because it is redundant; orders are no longer “effective” when they are vacated by a higher tribunal or superseded by an effective order on modification.
(h) No other significant comments were received concerning this section, and the Department has promulgated the remainder of the regulation as proposed.
(a) The Department proposed a new provision that would require the parties to exchange all medical information developed in connection with a claim. 80 FR 23745-47, 23752. Currently, parties may develop medical information (subject to certain limits on examinations of the miner) in excess of the evidentiary limitations set out in § 725.414, and then select from that information those pieces they wish to submit into evidence. Medical information developed but not submitted into evidence generally remains in the sole custody of the party who developed it unless an opposing party is able to obtain the information through formal discovery.
The Department's proposed rule would change this status quo by requiring parties to share medical information developed in connection with a claim. The Department articulated several reasons for the change.
In addition to establishing the disclosure requirement and time frames within which parties must exchange medical information, the proposed rule set forth a non-exclusive list of sanctions an adjudication officer may impose on the party or the party's attorney for failure to disclose medical information in accordance with the rule. 80 FR 23752. But the rule provided that sanctions may be imposed only after giving the party an opportunity to demonstrate “good cause” for non-disclosure, and the sanctions imposed must be “appropriate to the circumstances.”
(b) The Department received several comments on the proposed rule. The comments ranged from supporting the proposed rule's promulgation without change to advocating the rule's withdrawal. Those commenters supporting the rule agreed with the Department that the rule is a fair and reasonable method of protecting the health and safety of miners, noting variously that it was “critical” and “ethical” for miners to have access to their health records. Others described experiences in representing claimants where the operator had skewed the medical evidence by withholding various pieces of medical information from their own experts or only partially disclosing a physician's opinion. A Member of Congress praised the Department's efforts, noting that the proposed rule could prevent harm to a miner who might otherwise be unaware of medical problems he or she may suffer and would level the playing field in claims adjudications, especially for unrepresented miners who would have difficulty navigating the discovery process.
Those commenters opposed to proposed § 725.413 state that the Department does not have statutory authority to promulgate the rule, or to impose sanctions, or both. They contend that neither the incorporated Social Security Act and Longshore Act provisions (
After giving full consideration to the comments, the Department believes the rule is important to protecting the health of miners and is promulgating it with certain revisions described below. The following discussion addresses all of the significant comments the Department received and explains each revision in the final rule.
(c) Some commenters ask the Department to withdraw the rule, arguing that the Department lacks statutory authority to promulgate it. The Department disagrees with this comment. As discussed in detail above (
The objecting commenters dispute the Department's reliance on these statutory authorities. Without acknowledging the Secretary's general rulemaking authority under 30 U.S.C. 936(a), they contend that neither the incorporated Longshore Act nor the incorporated Social Security Act provisions support promulgation of § 725.413. First, these commenters assert that the Department's reliance on Longshore Act section 23(a) is hypocritical because proposed § 725.413 is itself a technical rule of procedure. While § 725.413 is undoubtedly procedural, it will relieve the parties from the burden of complex discovery rules and will simplify claim proceedings and make them fairer, especially for those parties not represented by counsel. The rule is thus fully consistent with section 23(a)'s overarching command to “best ascertain the rights of the parties.”
Next, the same commenters state that the Department cannot rely on Social Security Act section 205(a), which they claim has no applicability to Part C BLBA claim proceedings (
Promulgating a procedural rule requiring parties to exchange medical information developed in connection with a claim—a rule that governs proceedings before the agency, is party-neutral, protects a miner's health, and assists unrepresented parties—falls well within these statutory authorities.
(d) Apart from requiring the exchange of medical information, several commenters contend that the Department lacks statutory authority to promulgate regulations permitting the imposition of sanctions on parties or their attorneys who fail to properly
To the extent these commenters base their objections on the APA, their comments misapprehend how the APA's provisions interface with the BLBA. By statute, the APA does not apply to BLBA adjudications except as “otherwise provided” in the Mine Safety and Health Act. 30 U.S.C. 956 (“Except as otherwise provided in this chapter, the provisions of sections 551 to 559 and sections 701 to 706 of Title 5 shall not apply to the making of any order, notice, or decision made pursuant to this chapter[.]”). The BLBA otherwise provides for application of the APA provisions governing hearings—specifically, 5 U.S.C. 554 (which, in turn, refers to 5 U.S.C. 556)—by incorporating Longshore Act section 19(d). 33 U.S.C. 919(d), as incorporated by 30 U.S.C. 932(a). But as explained above (
Unlike the APA hearing provisions, neither the BLBA nor the Department's implementing regulations calls for application of section 5 U.S.C. 558, the APA section the commenters rely upon most heavily to challenge the Department's authority to impose sanctions under § 725.413. Section 558(b) provides that “[a] sanction may not be imposed . . . except within jurisdiction delegated to the agency and as authorized by law.” 5 U.S.C. 558(b). The Mine Safety and Health Act specifically excludes this APA section from incorporation unless “otherwise provided,” and the BLBA does not “otherwise provide” for its application. 30 U.S.C. 956. Nor is this provision incorporated through the circuitous Longshore Act route that brings the APA's hearing-related provisions into the BLBA. Thus, the commenters' reliance on section 558 is misplaced.
Even assuming that (1) all provisions of the APA apply and (2) the Department may not vary them by regulation, solid authority holds that agencies may impose sanctions, short of fines and imprisonment, to enforce compliance with their discovery rules, particularly discovery orders made in the context of judicial-type proceedings.
Contrary to the commenters' implication, no different rule applies when sanctioning parties' representatives. Agencies have the inherent authority to discipline lawyers who appear before them.
Nor does section 27 of the Longshore Act, 33 U.S.C. 927, incorporated into the BLBA by 30 U.S.C. 932(a), preclude the Department from imposing discovery sanctions. That provision authorizes adjudication officers to refer acts of contempt to a United States district court for punishment by fine or imprisonment. It does not preclude the Department from imposing the lesser sanctions set out in the proposed rule.
Two commenters state that the list of possible sanctions in proposed § 725.413(c)(2) is unclear because it is non-exclusive, suggesting that the Department strike the sanctions list from the rule. The Department anticipates that in most instances, an adjudication officer will impose one of the listed sanctions, and therefore the presence of a sanctions list leads to greater clarity. An adjudication officer, who is charged with governing the conduct of proceedings and resolving contested issues of fact or law (
Finally, one commenter proposed expanding available sanctions to include permanent disbarment of attorneys from all BLBA practice. The Department does not believe that this sanction is necessary to enforce the medical information disclosure rule effectively. An adjudicator's authority extends to determining the merits of an individual claim.
(e) Three commenters argue that requiring parties to exchange medical information is an overreaction to an isolated case, claiming that only one attorney engaged in the conduct addressed by proposed § 725.413. These commenters state that the Department cited only one case involving undisclosed medical information in the NPRM, and failed to fully assess the need for the rulemaking.
These comments are not accurate. Although the Department illustrated the need for the rule with a detailed summary of miner Gary Fox's claims, it also cited two additional cases (involving different attorneys) in the NPRM. 80 FR 23746. More importantly, the issue of withholding medical information generated by non-testifying experts has persistently recurred in black lung claims and has been litigated by some members of the associations making this comment. Several other commenters listed and described additional claims in which medical evidence was withheld. These cases, along with others the Department has identified, generally fall into three categories. In the first, the adjudication officer denies the party's (either the claimant's or the operator's) motion to compel discovery of the medical information because the party did not meet the standard for gaining discovery of a non-testifying expert's opinion imposed under the Office of Administrative Law Judges Rules of Practice and Procedure (OALJ Rules).
These commenters also assert that the Department failed to quantify the general impact of non-disclosure on miners' health. Doing so with any certainty is impractical for several reasons. By their nature, these cases come to light only when a party takes affirmative action to discover medical information; the Department cannot quantify the volume of undisclosed medical information in cases where parties do not pursue discovery of that information and, in fact, might not even know of its existence. The same is true in those instances where the employer has chosen to accept liability for the claim rather than disclosing the non-testifying expert's opinion. The Department also cannot assess whether any particular piece of medical information would have an impact on any one miner's course of treatment or disease. But common sense dictates that better-informed miners and medical providers are able to make better decisions regarding a miner's care.
And, to the extent these commenters are correct in stating that, with very few exceptions, parties already exchange all medical information developed, they should not be affected by the final rule. Apart from a slightly earlier deadline for exchanging medical information, § 725.413 will not change those parties' current practice.
Despite the practical barriers to the suggested analysis, Congress was certain in its primary direction to the Department: “[T]he first priority and concern of all in the coal or other mining industry must be the health and safety of its most precious resource—the miner.” 30 U.S.C. 801(a). Congress also explicitly recognized the importance of medical information to miners' health when it mandated medical screening to detect pneumoconiosis and provided that miners with evidence of pneumoconiosis could transfer to less-dusty areas of the mine site. 30 U.S.C. 843(a) (requiring underground coal mine operators to offer chest X-ray evaluations to miners periodically); 30 U.S.C. 843(b) (“[A]ny miner who, in the judgment of the Secretary of Health and Human Services based upon [a chest X-ray] reading or other medical examinations, shows evidence of the development of pneumoconiosis shall be afforded the option of transferring from his position to another position in any [less-dusty] area of the mine, for such period or periods as may be necessary to prevent further development of such disease[.]”). Section 725.413 fully comports with Congress' desires.
(f) The Department received several comments suggesting various clarifications and other changes to the proposed definition of “medical information” at § 725.413(a). As proposed, “medical information” includes medical data about a miner that was developed in connection with a claim for benefits (§ 725.413(a)) and that is: (1) An examining physician's assessment of the miner, including findings, test results, diagnoses, and conclusions (§ 725.413(a)(1)); or (2) any other physician's or medical professional's opinion or interpretation of tests, procedures and related documentation, but only to the extent they address the miner's respiratory or pulmonary condition (§ 725.413(a)(2)-(4)). 80 FR 23747, 23752. Thus, the medical data subject to disclosure is generally limited to data generated in the claim's litigation and relevant to the primary question in the claim—the miner's respiratory or pulmonary condition.
(1) Two commenters express concern that proposed § 725.413(a) does not specifically exclude a miner's medical treatment records from the definition of “medical information” subject to mandatory exchange between parties. As the Department explained in the NPRM, 80 FR 23747, treatment records are not medical data a party “develops in connection with a claim” and thus do not meet the definition of “medical information.” Instead, these records are generated in the routine course of a miner's treatment and, if pertinent to the miner's respiratory or pulmonary condition, are admissible without limitation. 20 CFR 725.414(a)(4). But to allay any concern, the Department has revised § 725.413 to explicitly exclude treatment records from the “medical information” subject to exchange between the parties under this regulation. The new language is in paragraph (b)(1) of the final regulation.
(2) Several commenters assert that § 725.413 should exclude from “medical information” all draft medical reports. These same commenters also urge the Department to exclude all communications between a party's attorney and its medical experts. For the reasons that follow, the Department disagrees that draft medical reports should be excluded from “medical information” but has adopted the commenters' suggestion to exclude attorney communications with experts
To support their request for these exclusions, the commenters point variously to Federal Rule of Civil Procedure 26(b)(4)(B) and (C) and the OALJ Rules, 80 FR 28793 (May 19, 2015) (to be codified at 29 CFR 18.51(d)), which incorporate the concepts embodied in the Federal Rule. When an expert is required to submit written reports or other disclosures, those rules protect his or her draft reports from discovery. Fed. R. Civ. P. 26(b)(4)(B); 80 FR 28793 (to be codified at 29 CFR 18.51(d)(2)). Similarly, the rules generally protect from disclosure communications between the party's attorney and the expert witness except when those communications pertain to the expert's compensation, facts or data the attorney provided to the expert, or assumptions provided by the attorney to the expert that the expert relied on in forming his or her opinion. Fed. R. Civ. P. 26(b)(4)(C); 80 FR 28793 (to be codified at 29 CFR 18.51(d)(3)). These rules are designed to allow discovery of the facts and data on which the expert bases his or her opinion without unnecessarily interfering with effective communication between the attorney and the expert or disclosing the attorney's mental impressions and theories about the case.
As noted above (
In this instance, the Department believes a rule governing draft reports designed specifically for the Black Lung program will serve the program's purposes better than the general rule. Exempting all draft medical reports from § 725.413's disclosure requirements could easily eviscerate the rule: The disclosure requirement could be avoided simply by labeling any medical report a “draft.” Any party could solicit additional medical opinions on the miner's condition and simply not share them with the opposing party, or perhaps even their remaining expert witnesses. If an employer engaged in that conduct, a primary purpose of the rule—protecting the health and safety of the miner by ensuring access to all information about his or her health—would be thwarted. And if a claimant did the same, another primary purpose of the rule—accurate claims adjudication—could be in jeopardy.
On the other hand, the Department does not see a similarly compelling need to routinely require disclosure of communications from an attorney (or non-attorney representative,
(3) Two commenters ask the Department to revise § 725.413(a) to include “an exhaustive list” of “medical information” that must be exchanged. They claim that the proposed rule does not adequately describe the scope of covered information. To illustrate, the commenters point to several examples, such as data the Social Security Administration considers “health information” (
The Department has not added a complete list of “medical information” to the final rule. As explained, the rule expressly limits disclosure to medical information developed in connection with a claim for benefits and, with the exception of an examining physician's report, further limits required disclosure to data addressing the miner's respiratory or pulmonary condition. These two limitations serve to substantially narrow and define the scope of information that must be exchanged with opposing parties (
Moreover, developing an exhaustive list would not be practical because it could easily omit relevant medical data. Another black lung program regulation (20 CFR 718.107(a)) correctly countenances the possibility that medical testing methods other than those explicitly addressed in the regulations may be used to evaluate a miner's respiratory or pulmonary condition.
(4) Two commenters ask the Department to clarify whether the form in which the party receives the medical information (
(g) Two commenters express concern that the proposed rule does not adequately address the interplay between § 725.413's disclosure requirements and § 725.414's evidence-limiting provisions (which restrict the number of objective tests and medical reports parties may offer into evidence), and may lead to confusion as to whether the new disclosure requirements expand the amount of medical evidence a party may offer beyond that currently allowed under § 725.414. The Department agrees
(h) On a related note, one commenter states that because district directors serve a dual role as a party (entitled to receive disclosed medical information under this rule) and an adjudicator, they could be confused about which pieces of exchanged medical information should be considered as evidence in the claim. This commenter suggests that the rule be revised to require private parties to disclose evidence to the Director only after a hearing has been requested. The Department disagrees with the suggested approach. District directors are skilled adjudicators who routinely sort through admissible and non-admissible pieces of medical information in issuing proposed decisions and orders. For example, when parties submit more evidence than allowed under the § 725.414 evidence-limiting rules (a not infrequent occurrence), district directors must eliminate from consideration the evidence exceeding the limits when adjudicating the claim's merits. In addition, removing the district director from early disclosures would hamper their ability to administer the rule. The Department will ensure that district directors and their staffs receive training on the appropriate disposition and use of material disclosed under the rule.
(i) Several commenters ask that attorneys (and presumably non-attorney representatives as well) be exempt from liability for a client's failure to disclose medical information received by a party prior to the attorney's hiring. The Department concurs with this comment but does not believe a change in the proposed rule is necessary. Section 725.413(b) links the duty to exchange medical information to its “receipt.” An attorney or representative new to the case cannot be held responsible for the party's (or the party's prior representative's) failure to timely exchange the information because the new representative was not in “receipt” of the medical evidence prior to their entry into the case. But once the new representative actually receives any medical information generated before they entered the case—for instance, from a claimant who gives his or her new attorney all of the paperwork they have related to the claim—the representative then has a duty to ensure that the medical information is exchanged with the other parties within thirty days in accordance with § 725.413(b).
(j) Several commenters contend that the rule denies due process to sanctioned parties because the regulation authorizes no form of review for a wrongful sanctions ruling. These commenters believe that a sanctions ruling cannot be reviewed along with the merits of a claim because the ruling cannot be reversed. While the Department believes that normal claim procedures are sufficient to protect the rights of sanctioned individuals, it has clarified the review procedure by adding a new paragraph (e)(4) to the final rule. Under this provision, a sanction imposed by a district director is subject to de novo review by an administrative law judge. The Department has adopted this approach because several of the listed sanctions—such as drawing an adverse inference against the non-disclosing party or limiting a non-disclosing party's claims, defenses, or right to introduce evidence—are closely tied to the adjudication of a claim's merits. By statute, the administrative law judge has the “authority to hear and determine all questions in respect of [a] claim.” 33 U.S.C. 919(a), as incorporated by 30 U.S.C. 932(a). These questions would include whether the party had “good cause” for not making the required disclosure and the appropriateness of the sanction chosen. Any administrative law judge's order resulting in a final disposition of the claim would be subject to immediate appeal to the Benefits Review Board, followed by appeal to an appropriate court of appeals. 33 U.S.C. 921(a), (c), as incorporated by 30 U.S.C. 932(a). And in the absence of a final claim disposition, a sanctioned party could choose to immediately appeal an order imposing sanctions to the Board, whose precedent allows it to accept such interlocutory appeals merely to direct the course of the adjudicatory process.
(k) No other significant comments were received concerning this section, and the Department has promulgated the remainder of the regulation as proposed.
(a)(1) The Department proposed revising § 725.414, which imposes limitations on the quantity of medical evidence each party may submit in a black lung claim. 20 CFR 725.414. Sections 725.414(a)(2) and (a)(3) allow each party to submit “no more than two medical reports” in support of its affirmative case. 20 CFR 725.414(a)(2)-(3). The current rule defines a “medical report” as a “written assessment of the miner's respiratory or pulmonary condition” that “may be prepared by a physician who examined the miner and/or reviewed the available admissible evidence.” 20 CFR 725.414(a)(1).
This definition of “medical report” at times created confusion over whether supplemental reports offered by a physician whose initial opinion had already been entered into evidence counted against the parties' two-report limit. 80 FR 23747. Parties obtain supplemental reports when they ask a physician to update his or her initial report by reviewing additional material, such as medical testing results or other physicians' opinions. To eliminate this confusion, the Department proposed revising the definition of a “medical report” to codify the Director's longstanding position that a physician's supplemental report is “merely a continuation of the physician's original medical report for purposes of the evidence-limiting rules and do[es] not count against the party as a second medical report.” 80 FR 23747. The Department noted that the proposed definition was consistent with the regulatory provision allowing physicians to review (either in a written report or oral testimony) the other admissible evidence, and a cost-effective means of providing medical-opinion evidence given the practical realities of black lung claims litigation. 80 FR 23747-48.
(2) Three commenters support the proposed rule as written. Four other commenters state general support for the rule, but question how a physician's supplemental medical report would be treated in a modification proceeding.
(3) The Department does not believe this comment warrants a change in the proposed rule. In a modification proceeding, the regulations allow each party to submit one additional medical report in support of its affirmative case. 20 CFR 725.310(b). This provision supplements the limitations contained in § 725.414(a); thus, during modification, a party may submit up to the two medical reports allowed under § 725.414(a), if they were not submitted during the original claim proceedings, plus one additional medical report, for a total of three.
Considering a physician's supplemental report as an extension of his or her original report is consistent with the Department's longstanding position that modification proceedings are a continuation of the initial claim.
Finally, the regulations provide that a physician who submits a report during the initial proceedings could testify at hearing or by deposition during modification proceedings, without it counting against the party for purposes of the evidence-limiting rules.
The commenters' claim that this interpretation would result in limitless evidentiary development is overstated. Allowing supplemental reports from physicians whose opinions were admitted in the initial claim proceeding does not increase the number of physicians who may evaluate the miner's condition. As explained, that total remains at a maximum of three for each party in a modification proceeding. And development of supplemental reports in an undisciplined or unreasonable way is naturally constrained by other regulations. For example, physicians may review only admissible evidence, 20 CFR 725.414(a)(1), and the amount of admissible evidence overall is limited.
(b)(1) The Department proposed a separate revision to § 725.414(a)(3)(iii). Currently, this provision authorizes the Director to exercise the rights of a responsible operator for the purposes of the evidence limitations only if: (1) The district director has not identified a potentially liable operator; or (2) all potentially liable operators have been dismissed. The Department proposed adding a third provision that would allow the Director to submit medical evidence, up to the limits allowed a responsible operator under the evidence-limiting rules, when the identified responsible operator stops defending a claim during the course of litigation because of adverse financial developments, such as bankruptcy or insolvency. 80 FR 23753.
The Department proposed this change because the current rule does not adequately protect the Trust Fund against unmeritorious claims in these circumstances. 80 FR 23748. Where an identified responsible operator ceases to defend a claim in litigation due to adverse financial developments, the current rule limits the Director's submissions to only the complete pulmonary evaluation that the Department gives to every miner as an opportunity to substantiate his or her claim.
(2) Two commenters support the rule as proposed. Several other commenters state that the rule needs clarification. The latter commenters agree that the Director should be able to defend unmeritorious claims in these circumstances, but only if the district director initially denied the claim. In cases initially awarded by the district director, the commenters express concern that the Director may use medical evidence previously developed by the no-longer-defending operator. They believe this would be improper for two reasons: (1) The Director would be impeaching his own witness (
First, the Director is not obligated to continue to advocate for an award of benefits once that award has been proven by later evidence or an intervening adjudication to be incorrect.
Second, the commenters' fear that the Director would rely on operator-generated medical opinions that are contrary to the BLBA, the regulations or science overlooks the Director's longstanding, consistent history arguing for rejection of these problematic medical opinions.
The Director does not intend to alter this policy. In each case—whether the claim was awarded or denied by the district director—the Director will evaluate any medical opinion evidence developed by the defunct operator and reject any evidence inconsistent with the BLBA, the regulations and supporting preambles. This is the same process the Director engages in now when an operator ceases to exist and liability for a claim in litigation is transferred to the Trust Fund.
Third, the allegation that routine information exchanged between the district director and the claimant could later be used to defeat the claim is unfounded. By statute, the Department wears two hats in black lung cases, with district directors conducting initial adjudications and the Secretary, represented by the Director, participating as a party-in-interest in all later proceedings.
Given the de novo nature of the administrative law judge's adjudication, it is difficult to see how communications between the district director and the claimant could adversely impact the claimant. More importantly, for more than three decades the Director has defended proposed district director denials of benefits in claims for which the Trust Fund bears direct liability.
Finally, the Department disagrees with one commenter's suggestion that operators be required to certify the reason for their inability to pay continuing benefits. Requiring certification from a bankrupt or insolvent operator would place too high an administrative burden on the Department. In some instances, locating a person who could act on the defunct operator's behalf may be impossible. And, even assuming the operator continues to exist in some form, an operator lacking financial capacity to pay benefits has little incentive to respond to a certification request. The rule, and the protection it affords the Trust Fund, would be rendered useless if an operator either failed or simply refused to supply any required certification.
(c) No other significant comments were received concerning this section, and the Department has promulgated § 725.414 as proposed.
(a) Currently, § 725.601(b) refers to “payments in addition to compensation” and cross references § 725.607. The proposed rule replaced this phrase with “payments of additional compensation.” 80 FR 23753. The Department intended this to be a technical change, unifying this language with a simultaneously proposed change to § 725.607. 80 FR 23748.
(b) One commenter objected, contending that the wording change is substantive and would impose unauthorized penalties on operators. The Department disagrees with this comment. The change to this rule is technical in nature and, as stated in the NPRM, no substantive change is intended.
(a) Section 725.607 implements section 14(f) of the Longshore Act, an incorporated provision. 33 U.S.C. 914(f), as incorporated by 30 U.S.C. 932(a). Section 14(f) generally provides that claimants are entitled to receive from a liable coal mine operator 20 percent of any compensation owed under the terms of an award that is not paid within ten days of the date payment is due. By regulation, payment is due “on the fifteenth day of the month following the month for which the benefits are payable.” 20 CFR 725.502(b)(1);
The Department proposed revising both the title of § 725.607 and the text of paragraph (c) by replacing the phrase “payments in addition to compensation” with the phrase “payments of additional compensation.” 80 FR 23853-54. As explained in the NPRM, 80 FR 23748-49, section 725.607(b) uses the phrase “additional compensation,” and conforming the title and paragraph (c) to that language adds clarity to the regulation and “eliminate[s] any possibility that the regulation's phrasing could confuse readers.” 80 FR 23749;
(b) Four commenters contend that the proposed revisions to the title and paragraph (c) impose new and unauthorized penalties on operators. Although these commenters concede that section 14(f) is incorporated into the BLBA, they challenge application of the provision to the BLBA program.
Using the phrase “additional compensation” consistently throughout the regulations does not impose any new or unauthorized penalties on operators. The Department has had a regulation interpreting and applying section 14(f)'s 20 percent additional compensation provision to unpaid black lung benefits since 1978.
The Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. 3501
In the NPRM, the Department noted that proposed § 725.413, which, as discussed above, requires parties to exchange certain medical information, could be considered a collection of information within the meaning of the PRA. 80 FR 23749. Accordingly, the Department submitted an Information Collection Request (ICR) to OMB for approval.
The Department received comments on the substance of proposed § 725.413; these comments are fully addressed in the Section-by-Section Explanation above. The Department received no comments about the information collection burdens. The Department has submitted an ICR to OMB for the information collection in this final rule.
The information collection and its burdens are summarized as follows:
Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. The Department has considered the final rule with these principles in mind and has determined that the regulated community will benefit from these new and revised regulations.
The Department addressed these issues in the NPRM. 80 FR 23749-50. With regard to § 725.310(e), which requires operators to pay effective awards of benefits while seeking to modify them, the Department stated that the proposed rule was “cost neutral” because it merely enforced operators' existing legal obligations under the Act. 80 FR 23749. The Department also noted that even if § 725.310(e) were construed as imposing a new obligation, any additional costs would not be burdensome because operators must reimburse the Trust Fund (with interest) when unsuccessful on modification, operators are not often successful on modification, and if successful, operators may seek reimbursement from the claimant for at least some of the benefits paid. 80 FR 23750. Apart from the potential monetary impact, the Department determined that § 725.310(e) struck an appropriate balance between claimants, who are made whole under the rule, and operators, who may seek a stay of payments if they would be irreparably harmed by making them. 80 FR 23750.
The Department similarly concluded that the benefits of § 725.413, which requires the parties to exchange all medical information they develop in connection with a claim, far outweighed any minimal administrative burden the rule might place on parties. 80 FR 23750. These benefits include protecting miners' health and reaching more accurate claims determinations. The Department also noted that the rule may not have broad impact because parties often already exchanged all of the
The Department has considered the final rule with these principles in mind and has determined that the regulated community will benefit from these new and revised regulations. One comment, in which four entities joined, generally criticized the Department for not demonstrating why these rule revisions were necessary. The comment states that the Department provided no empirical data to support them and instead cited only unrepresentative anecdotes documenting mostly non-existent problems that do not accurately characterize how black lung claims are handled. The comment also alludes generally to significant expenses imposed on coal mine operators and their insurers by the Department but provides no specific information regarding how these rules in particular impose increased costs. In addition to these general allegations, this comment states that the Department did not conduct an empirical review of the impact of § 725.310 and did not adequately consider the actual impact § 725.413 would have on miners' health.
The Department does not believe this comment compels a different conclusion regarding the benefits of this rulemaking. The Department has administered the black lung program for more than three decades and been a party in hundreds of thousands of claims. As a result, the Department is intimately familiar with how black lung claims are litigated by all parties. To further illustrate that §§ 725.310(e) and 725.413 respond to non-illusory problems, the Department has added additional representative case examples in the Section-by-Section Explanation above (
On the more specific comments, § 725.310(e), as discussed above (
Similarly, the benefits associated with § 725.413 far outweigh any additional minimal burden the regulation will impose on the parties. For the reasons explained above (
Finally, one comment stated that several parts of the proposed rules violated the various directions in Executive Orders 12866 and 13563 that rules be clear and written in plain language. The Department has responded to these comments in discussing the substance of each rule in the Section-by-Section Explanation above.
This rule is a significant regulatory action under section 3(f)(4) of Executive Order 12866 and has been reviewed by the Office of Information and Regulatory Affairs in the Office of Management and Budget.
The Regulatory Flexibility Act of 1980, as amended, 5 U.S.C. 601
In the NPRM, the Department determined that a complete regulatory flexibility analysis was not necessary, set forth the factual basis for this conclusion, and certified that the revised rule would not have a significant economic impact on a substantial number of small entities. 80 FR 23750. The Department provided a copy of that certification to the Chief Counsel for Advocacy of the Small Business Administration,
The Chief Counsel for Advocacy has not filed comments on the certification. Moreover, no public comments address any adverse economic impacts this rule will have on small coal mine operators. Because the comments do not provide a basis for departing from its prior conclusion, the Department again certifies that this rule will not have a significant economic impact on a substantial number of small entities. Thus, no regulatory flexibility analysis is required.
Title II of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1531
The Department has reviewed this rule in accordance with Executive Order 13132 regarding federalism, and has determined that it does not have “federalism implications.” Executive Order 13132, 64 FR 43255, Aug. 4, 1999. The rule will not “have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.”
This rule was drafted and reviewed in accordance with Executive Order 12988,
The Congressional Review Act, 5 U.S.C. 801
Total disability due to pneumoconiosis, Coal miners' entitlement to benefits, Survivors' entitlement to benefits.
For the reasons set forth in the preamble, the Department of Labor amends 20 CFR part 725 as follows:
5 U.S.C. 301; Reorganization Plan No. 6 of 1950, 15 FR 3174; 30 U.S.C. 901
(b) Modification proceedings must be conducted in accordance with the provisions of this part as appropriate, except that the claimant and the operator, or group of operators or the fund, as appropriate, are each entitled to submit no more than one additional chest X-ray interpretation, one additional pulmonary function test, one additional arterial blood gas study, and one additional medical report in support of its affirmative case along with such rebuttal evidence and additional statements as are authorized by paragraphs (a)(2)(ii) and (a)(3)(ii) of § 725.414. Modification proceedings may not be initiated before an administrative law judge or the Benefits Review Board.
(c) At the conclusion of modification proceedings before the district director, the district director may issue a proposed decision and order (§ 725.418) or, if appropriate, deny the claim by reason of abandonment (§ 725.409). In any case in which the district director has initiated modification proceedings on his own initiative to alter the terms of an award or denial of benefits issued by an administrative law judge, the district director must, at the conclusion of modification proceedings, forward the claim for a hearing (§ 725.421). In any case forwarded for a hearing, the administrative law judge assigned to hear such case must consider whether any additional evidence submitted by the parties demonstrates a change in condition and, regardless of whether the parties have submitted new evidence, whether the evidence of record demonstrates a mistake in a determination of fact.
(d) An order issued following the conclusion of modification proceedings may terminate, continue, reinstate, increase or decrease benefit payments or award benefits. Such order must not affect any benefits previously paid, except that an order increasing the amount of benefits payable based on a finding of a mistake in a determination of fact may be made effective on the date from which benefits were determined payable by the terms of an earlier award. In the case of an award which is decreased, no payment made in excess of the decreased rate prior to the date upon which the party requested reconsideration under paragraph (a) of this section will be subject to collection or offset under subpart H of this part, provided the claimant is without fault as defined by § 725.543. In the case of an award which is decreased following the initiation of modification by the district director, no payment made in excess of the decreased rate prior to the date upon which the district director initiated modification proceedings under paragraph (a) will be subject to collection or offset under subpart H of this part, provided the claimant is without fault as defined by § 725.543. In the case of an award which has become final and is thereafter terminated, no payment made prior to the date upon which the party requested reconsideration under paragraph (a) will be subject to collection or offset under subpart H of this part. In the case of an award which has become final and is thereafter terminated following the initiation of modification by the district director, no payment made prior to the date upon which the district director initiated modification proceedings under paragraph (a) will be subject to collection or offset under subpart H of this part.
(e)(1) In this paragraph, an order is “effective” as described in § 725.502(a) and “final” as described in §§ 725.419(d), 725.479(a) or 802.406.
(2) Any modification request by an operator must be denied unless the operator proves that at the time of the request, the operator has:
(i) Paid to the claimant all monetary benefits, including retroactive benefits and interest under § 725.502(b)(2), due under any effective order;
(ii) Paid to the claimant all additional compensation (
(iii) Paid all medical benefits (
(iv) Paid all final orders awarding attorney's fees and expenses under § 725.367 and witness fees under § 725.459, but only if the underlying benefits order is final (
(v) Reimbursed the Black Lung Disability Trust Fund, with interest, for all benefits paid under the orders described in paragraphs (e)(2)(i) or (iii) of this section and the costs for the medical examination under § 725.406.
(3) The requirements of paragraph (e)(2) of this section are inapplicable to any benefits owed pursuant to an effective but non-final order if the payment of such benefits has been stayed by the Benefits Review Board or appropriate court under 33 U.S.C. 921.
(4) Except as provided by paragraph (e)(5) of this section, the operator must submit all documentary evidence pertaining to its compliance with the requirements of paragraph (e)(2) of this section to the district director concurrently with its request for modification. The claimant is also entitled to submit any relevant evidence to the district director. Absent extraordinary circumstances, no documentary evidence pertaining to the operator's compliance with the requirements of paragraph (e)(2) at the time of the modification request will be admitted into the hearing record or otherwise considered at any later stage of the proceeding.
(5) The requirements imposed by paragraph (e)(2) of this section are continuing in nature. If at any time
(6) The denial of a request for modification under this section will not bar any future modification request by the operator, so long as the operator satisfies the requirements of paragraph (e)(2) of this section with each future modification petition.
(7) The provisions of this paragraph apply to all modification requests filed on or after May 26, 2016.
(a) For purposes of this section, medical information is any written medical data, including data in electronic format, about the miner that a party develops in connection with a claim for benefits, including medical data developed with any prior claim that has not been disclosed previously to the other parties. Medical information includes, but is not limited to—
(1) Any examining physician's written or testimonial assessment of the miner, including the examiner's findings, diagnoses, conclusions, and the results of any tests;
(2) Any other physician's written or testimonial assessment of the miner's respiratory or pulmonary condition;
(3) The results of any test or procedure related to the miner's respiratory or pulmonary condition, including any information relevant to the test or procedure's administration; and
(4) Any physician's or other medical professional's interpretation of the results of any test or procedure related to the miner's respiratory or pulmonary condition.
(b) For purposes of this section, medical information does not include—
(1) Any record of a miner's hospitalization or other medical treatment; or
(2) Communications from a party's representative to a medical expert.
(c) Each party must disclose medical information the party or the party's agent receives by sending a complete copy of the information to all other parties in the claim within 30 days after receipt. If the information is received after the claim is already scheduled for hearing before an administrative law judge, the disclosure must be made at least 20 days before the scheduled hearing is held (
(d) Medical information disclosed under this section must not be considered in adjudicating any claim unless a party designates the information as evidence in the claim.
(e) At the request of any party or on his or her own motion, an adjudication officer may impose sanctions on any party or his or her representative who fails to timely disclose medical information in compliance with this section.
(1) Sanctions must be appropriate to the circumstances and may only be imposed after giving the party an opportunity to demonstrate good cause why disclosure was not made and sanctions are not warranted. In determining an appropriate sanction, the adjudication officer must consider—
(i) Whether the sanction should be mitigated because the party was not represented by an attorney when the information should have been disclosed; and
(ii) Whether the party should not be sanctioned because the failure to disclose was attributable solely to the party's attorney.
(2) Sanctions may include, but are not limited to—
(i) Drawing an adverse inference against the non-disclosing party on the facts relevant to the disclosure;
(ii) Limiting the non-disclosing party's claims, defenses or right to introduce evidence;
(iii) Dismissing the claim proceeding if the non-disclosing party is the claimant and no payments prior to final adjudication have been made to the claimant unless the Director agrees to the dismissal in writing (
(iv) Rendering a default decision against the non-disclosing party;
(v) Disqualifying the non-disclosing party's attorney from further participation in the claim proceedings; and
(vi) Relieving a claimant who files a subsequent claim from the impact of § 725.309(c)(6) if the non-disclosed evidence predates the denial of the prior claim and the non-disclosing party is the operator.
(3) Sanctions must not include—
(i) Fines or
(ii) Imprisonment.
(4) Sanctions imposed by a district director are subject to review by an administrative law judge in accordance with the provisions of this part.
(f) This rule applies to—
(1) All claims filed after May 26, 2016;
(2) Pending claims not yet adjudicated by an administrative law judge, except that medical information received prior to May 26, 2016 and not previously disclosed must be provided to the other parties within 60 days of May 26, 2016; and
(3) Pending claims already adjudicated by an administrative law judge where—
(i) The administrative law judge reopens the record for receipt of additional evidence in response to a timely reconsideration motion (
(ii) A party requests modification of the award or denial of benefits (
(a) * * *
(1) For purposes of this section, a medical report is a physician's written assessment of the miner's respiratory or pulmonary condition. A medical report may be prepared by a physician who examined the miner and/or reviewed the available admissible evidence. Supplemental medical reports prepared by the same physician must be considered part of the physician's original medical report. A physician's written assessment of a single objective test, such as a chest X-ray or a pulmonary function test, is not a medical report for purposes of this section.
(2)(i) The claimant is entitled to submit, in support of his affirmative case, no more than two chest X-ray interpretations, the results of no more than two pulmonary function tests, the results of no more than two arterial blood gas studies, no more than one report of an autopsy, no more than one report of each biopsy, and no more than two medical reports. Any chest X-ray interpretations, pulmonary function test results, blood gas studies, autopsy report, biopsy report, and physicians' opinions that appear in a medical report must each be admissible under this paragraph or paragraph (a)(4) of this section.
(ii) The claimant is entitled to submit, in rebuttal of the case presented by the party opposing entitlement, no more than one physician's interpretation of each chest X-ray, pulmonary function test, arterial blood gas study, autopsy or
(3)(i) The responsible operator designated pursuant to § 725.410 is entitled to obtain and submit, in support of its affirmative case, no more than two chest X-ray interpretations, the results of no more than two pulmonary function tests, the results of no more than two arterial blood gas studies, no more than one report of an autopsy, no more than one report of each biopsy, and no more than two medical reports. Any chest X-ray interpretations, pulmonary function test results, blood gas studies, autopsy report, biopsy report, and physicians' opinions that appear in a medical report must each be admissible under this paragraph or paragraph (a)(4) of this section. In obtaining such evidence, the responsible operator may not require the miner to travel more than 100 miles from his or her place of residence, or the distance traveled by the miner in obtaining the complete pulmonary evaluation provided by § 725.406 of this part, whichever is greater, unless a trip of greater distance is authorized in writing by the district director. If a miner unreasonably refuses—
(A) To provide the Office or the designated responsible operator with a complete statement of his or her medical history and/or to authorize access to his or her medical records, or
(B) To submit to an evaluation or test requested by the district director or the designated responsible operator, the miner's claim may be denied by reason of abandonment. (
(ii) The responsible operator is entitled to submit, in rebuttal of the case presented by the claimant, no more than one physician's interpretation of each chest X-ray, pulmonary function test, arterial blood gas study, autopsy or biopsy submitted by the claimant under paragraph (a)(2)(i) of this section and by the Director pursuant to § 725.406. In any case in which the claimant has submitted the results of other testing pursuant to § 718.107, the responsible operator is entitled to submit one physician's assessment of each piece of such evidence in rebuttal. In addition, where the claimant has submitted rebuttal evidence under paragraph (a)(2)(ii) of this section, the responsible operator is entitled to submit an additional statement from the physician who originally interpreted the chest X-ray or administered the objective testing. Where the rebuttal evidence tends to undermine the conclusion of a physician who prepared a medical report submitted by the responsible operator, the responsible operator is entitled to submit an additional statement from the physician who prepared the medical report explaining his conclusion in light of the rebuttal evidence.
(iii) In a case in which the district director has not identified any potentially liable operators, or has dismissed all potentially liable operators under § 725.410(a)(3), or has identified a liable operator that ceases to defend the claim on grounds of an inability to provide for payment of continuing benefits, the district director is entitled to exercise the rights of a responsible operator under this section, except that the evidence obtained in connection with the complete pulmonary evaluation performed pursuant to § 725.406 must be considered evidence obtained and submitted by the Director, OWCP, for purposes of paragraph (a)(3)(i) of this section. In a case involving a dispute concerning medical benefits under § 725.708 of this part, the district director is entitled to develop medical evidence to determine whether the medical bill is compensable under the standard set forth in § 725.701 of this part.
(4) Notwithstanding the limitations in paragraphs (a)(2) and (a)(3) of this section, any record of a miner's hospitalization for a respiratory or pulmonary or related disease, or medical treatment for a respiratory or pulmonary or related disease, may be received into evidence.
(5) A copy of any documentary evidence submitted by a party must be served on all other parties to the claim. If the claimant is not represented by an attorney, the district director must mail a copy of all documentary evidence submitted by the claimant to all other parties to the claim. Following the development and submission of affirmative medical evidence, the parties may submit rebuttal evidence in accordance with the schedule issued by the district director.
(c)
(d) Except to the extent permitted by §§ 725.456 and 725.310(b), the limitations set forth in this section apply to all proceedings conducted with respect to a claim, and no documentary evidence pertaining to liability may be admitted in any further proceeding conducted with respect to a claim unless it is submitted to the district director in accordance with this section.
(b) It is the policy and intent of the Department to vigorously enforce the provisions of this part through the use of the remedies provided by the Act. Accordingly, if an operator refuses to
(c) In certain instances the remedies provided by the Act are concurrent; that is, more than one remedy might be appropriate in any given case. In such a case, the Director may select the remedy or remedies appropriate for the enforcement action. In making this selection, the Director shall consider the best interests of the claimant as well as those of the fund.
(a) If any benefits payable under the terms of an award by a district director (§ 725.419(d)), a decision and order filed and served by an administrative law judge (§ 725.478), or a decision filed by the Board or a U.S. court of appeals, are not paid by an operator or other employer ordered to make such payments within 10 days after such payments become due, there will be added to such unpaid benefits an amount equal to 20 percent thereof, which must be paid to the claimant at the same time as, but in addition to, such benefits, unless review of the order making such award is sought as provided in section 21 of the LHWCA and an order staying payments has been issued.
(b) If, on account of an operator's or other employer's failure to pay benefits as provided in paragraph (a) of this section, benefit payments are made by the fund, the eligible claimant will nevertheless be entitled to receive such additional compensation to which he or she may be eligible under paragraph (a), with respect to all amounts paid by the fund on behalf of such operator or other employer.
(c) The fund may not be held liable for payments of additional compensation under any circumstances.
Internal Revenue Service (IRS), Treasury.
Final regulations.
This document contains final regulations that provide the method to be used to adjust the applicable Federal rates (AFRs) to determine the corresponding rates under section 1288 of the Internal Revenue Code (Code) for tax-exempt obligations (adjusted AFRs) and the method to be used to determine the long-term tax-exempt rate and the adjusted Federal long-term rate under section 382. For tax-exempt obligations, the regulations affect the determination of original issue discount under section 1273 and of total unstated interest under section 483. In addition, the regulations affect the determination of the limitations under sections 382 and 383 on the use of certain operating loss carryforwards, tax credits, and other attributes of corporations following ownership changes.
Concerning the regulations under section 1288, Jason G. Kurth at (202) 317-6842; concerning the regulations under section 382, William W. Burhop at (202) 317-6847.
On March 2, 2015, the IRS and the Treasury Department published a notice of proposed rulemaking (REG-136018-13) in the
The regulations in this Treasury decision provide the new method by which the Treasury Department and the IRS will determine the adjusted AFRs under section 1288 to take into account the tax exemption for interest on tax-exempt obligations (as defined in section 1275(a)(3) and § 1.1275-1(e)). The regulations also provide that the Treasury Department and the IRS will use the new method to determine the long-term tax-exempt rate and the adjusted Federal long-term rate under section 382(f) to take into account differences between rates on long-term taxable and tax-exempt obligations.
Since November 1986, the adjusted Federal long-term rate published under section 382(f)(2) has been equal to the long-term adjusted AFR with annual compounding published under section 1288(b) in the same month. See Rev. Rul. 86-133 (1986-2 CB 59). For calendar months from November 1986 to February 2013, the Treasury Department determined the adjusted Federal long-term rate and each adjusted AFR described in section 1288(b)(1) by multiplying the corresponding AFR by a fraction (the adjustment factor). The numerator of the adjustment factor was a composite yield of the highest-grade tax-exempt obligations available, which are prime, general obligation tax-exempt obligations. The denominator was a composite yield of U.S. Treasury obligations with maturities similar to those of the tax-exempt obligations. Each of the composite yields was measured over a one-month period.
The IRS published Notice 2013-4 (2013-9 IRB 527) on February 25, 2013, requesting comments on possible modifications to the method by which adjusted AFRs and the adjusted Federal long-term rate are determined. The IRS requested comments on these possible modifications because, since the beginning of 2008, market yields of prime, general obligation tax-exempt obligations had sometimes exceeded market yields of comparable U.S.
Notice 2013-4 also provided that, until the Treasury Department and the IRS issue further guidance, the adjusted AFRs and the long-term tax-exempt rate would continue to be calculated using the adjustment factor, except that the adjustment factor would equal one (1) for any month in which the adjustment factor would otherwise be greater than one or in which the denominator of the adjustment factor would otherwise be less than or equal to zero.
After reviewing comments received in response to Notice 2013-4, the Treasury Department and the IRS issued a notice of proposed rulemaking (REG-136018-13) proposing the regulations that are adopted in this Treasury decision. The regulations use historical market data to create an appropriate adjustment factor based on individual tax rates. The regulations provide that the adjusted AFRs and the adjusted Federal long-term rate for each month will be determined from the appropriate AFRs for that month using the adjustment factor that results from the following calculation: 100 percent—[(a combined tax rate) x (a fixed percentage)].
The tax rate in the adjustment factor is the sum of the maximum individual rate under section 1 and the maximum individual rate under section 1411 for the month to which the rate applies. The fixed percentage is the amount by which that combined tax rate must be multiplied to reflect the historical relationship between the maximum tax rate and the spread between yields of taxable and tax-exempt obligations. The fixed percentage in the adjustment factor is 59 percent, because the yield on tax-exempt obligations from February 1986 to July 2007 was lower than that of comparable taxable obligations by, on average, 59 percent of the maximum individual rate in effect under section 1.
Therefore, the adjustment factor under current tax rates would be 74.39 percent, the result of subtracting 25.61 percent (the product of 43.4 percent (the sum of the current maximum individual rate under section 1 (39.6 percent) and the current maximum individual rate under section 1411 (3.8 percent)) and 59 percent) from 100 percent. If an AFR for a given month were 5 percent, under current tax rates, the corresponding adjusted AFR would be 3.72 percent: The product of 74.39 percent and 5 percent. If that 5 percent AFR were the Federal long-term rate for debt instruments with annual compounding, the adjusted Federal long-term rate under section 382 would likewise be 3.72 percent.
As noted previously, because no comments were received on the proposed regulations, the final regulations adopt the proposed regulations without substantive change.
These regulations apply to determine the adjusted AFRs, adjusted Federal long-term rate, and long-term tax-exempt rate beginning with the rates determined during August 2016 that apply during September 2016.
Certain IRS regulations, including this one, are exempt from the requirements of Executive Order 12866, as supplemented and reaffirmed by Executive Order 13563. Therefore, a regulatory impact assessment is not required. It has also been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations, and because the regulations do not impose a collection of information on small entities, the Regulatory Flexibility Act (5 U.S.C. chapter 6) does not apply. Pursuant to section 7805(f) of the Code, the proposed regulations preceding these final regulations were submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on their impact on small businesses. No comments were received.
The principal authors of these regulations are Jason G. Kurth, IRS Office of the Associate Chief Counsel (Financial Institutions and Products) and William W. Burhop, IRS Office of the Associate Chief Counsel (Corporate). However, other personnel from the Treasury Department and the IRS participated in their development.
The IRS revenue ruling and notice cited in this Treasury decision are made available by the Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402.
Income taxes, Reporting and recordkeeping requirements.
Accordingly, 26 CFR part 1 is amended as follows:
26 U.S.C. 7805 * * *
Section 1.382-12 also issued under 26 U.S.C. 382(f) and 26 U.S.C. 382(m). * * *
Section 1.1288-1 also issued under 26 U.S.C. 1288(b). * * *
This section lists the captions that appear in the regulations for §§ 1.382-2 through 1.382-12.
(a) In general.
(b) Adjusted Federal long-term rate.
(c) Adjustment factor.
(d) Effective/applicability date.
(a)
(b)
(c)
(1) The excess of 100 percent, over
(2) The product of—
(i) 59 percent, and
(ii) The sum of the maximum rate in effect under section 1 applicable to individuals and the maximum rate in effect under section 1411 applicable to individuals for the month to which the adjusted applicable Federal rate applies.
(d)
(a)
(b)
(1) The excess of 100 percent, over
(2) The product of—
(i) 59 percent, and
(ii) The sum of the maximum rate in effect under section 1 applicable to individuals and the maximum rate in effect under section 1411 applicable to individuals for the month to which the adjusted applicable Federal rate applies.
(c)
Internal Revenue Service (IRS), Treasury.
Correcting amendment.
This document contains corrections to final regulations (TD 9721) that were published in the
This correction is effective April 26, 2016 and is applicable on or after February 19, 2016.
Milton M. Cahn or David A. Levine of the Office of Associate Chief Counsel (International) at (202) 317-6937 (not a toll-free number).
The final regulations (TD 9751) that are the subject of this correction are under section 897 and1445 of the Internal Revenue Code.
As published, the final regulations (TD 9751) contain errors that may prove to be misleading and are in need of clarification.
Income taxes, reporting and recordkeeping requirements.
Accordingly, 26 CFR part 1 is corrected by making the following correcting amendments:
26 U.S.C. 7805 * * *
(b) * * *
(3) * * *
(ii) * * *
(A) * * * In general, a foreign person is a nonresident alien individual, foreign corporation, foreign partnership, foreign trust, or foreign estate, but not a qualified foreign pension fund (as defined in section 897(l)) or an entity all of the interests of which are held by a qualified foreign pension fund.
Bureau of Prisons, Justice.
Final rule.
In this document, the Bureau of Prisons (Bureau) revises the Residential Drug Abuse Treatment Program (RDAP) regulations to allow greater inmate participation in the program and positively impact recidivism rates.
This rule is effective on May 26, 2016.
Sarah Qureshi, Office of General Counsel, Bureau of Prisons, phone (202) 353-8248.
In this document, the Bureau revises the Residential Drug Abuse Treatment Program (RDAP) regulations to allow greater inmate participation in the
The proposed rule was published on July 22, 2015, (80 FR 43367). The comment period ended on September 21, 2015. In the proposed rule, we described the following changes:
We also proposed to make a minor corresponding change in § 550.53(a)(1), which also refers inaccurately to the Drug Abuse Program Coordinator, when instead the course of activities referenced in that regulation is provided by the Psychology Services Department.
In 2010, the Bureau converted the Residential Drug Abuse Treatment Programs to the Modified Therapeutic Community Model of treatment (MTC). This evidenced-based model is designed to assess progress through treatment as determined by the participants' completion of treatment goals and activities on their individualized treatment plan, and demonstrated behavior change. Each participant jointly works with their treatment specialist to create the content of their treatment plan. Every three months, or more often if necessary, each participant meets with their clinical team (four or more treatment staff) to review their progress in treatment. Progress in treatment is determined through assessing the accomplishment of their treatment goals and activities, along with demonstrated behavior change, such as improved personal and social conduct, no disciplinary incidents, etc. Unsatisfactory progress is evident when the participant does not accomplish their treatment goals and does not demonstrate mastery of skill development.
There are several studies about the effectiveness of the MTC model of treatment. The most seminal study pertaining to this topic is titled “Outcome Evaluation of A Prison Therapeutic Community for Substance Abuse Treatment.”
This behavioral form of assessing progress is a much more powerful form of assessment than assessing the results of a written test. The written test assesses knowledge, but knowledge does not necessarily demonstrate whether the program has positively affected an individual's behavior or addictive lifestyle.
All of the treatment coordinators in the Bureau have a doctorate degree in psychology. They are well qualified to use their knowledge of treatment and the behavior of individuals suffering from substance abuse to objectively determine if a participant is ready to complete the program. There are three decades of evaluation research that support the efficacy of the therapeutic community model of treatment. The most comprehensive source of program description, theory, and summary of research associated with this model of treatment is found in the book entitled
Removing the language gives the Bureau more latitude and clinical discretion when determining which inmates should be expelled from the program. Inmates will then only be expelled from RDAP according to criteria in § 550.53(g)(1) which allows inmates to be removed from the program by the Drug Abuse Program Coordinator because of disruptive behavior related to the program or unsatisfactory progress in treatment, and requires at least one formal warning before removal, unless there is documented lack of compliance and the inmate's continued presence would present an immediate problem for staff and other inmates.
Removing paragraph (g)(3) removes the automatic expulsion of inmates committing the listed prohibited acts and allows for greater possibility of continuance of the program for inmates with discipline problems.
Title 18 U.S.C. 3621(e) provides the Director of the Bureau of Prisons the discretion to grant an early release of up to one year upon the successful completion of a residential drug abuse treatment program. In exercising the Director's statutory discretion, we considered the crimes of homicide, rape, robbery, aggravated assault, arson, and kidnaping. In the FBI's Uniform Crime Reporting (UCR) Program, violent crime is composed of four offenses: Murder and nonnegligent manslaughter, rape, robbery, and aggravated assault. Violent crimes are defined in the UCR Program as those offenses which involve force or threat of force. The Director exercised his discretion, therefore, to include these categories of violent crimes and also expanded the list to
The Director exercises discretion to deny early release eligibility to inmates who have a prior felony or misdemeanor conviction for theses offenses because commission of such offenses rationally reflects the view that such inmates displayed readiness to endanger the public. The UCR explained that “because of the variances in punishment for the same offenses in different state codes, no distinction between felony and misdemeanor crimes was possible.”
The application of national standards to the numerous local, state, tribal, and federal prior convictions promotes uniformity, but creates unique issues since each separate entity will have its own criminal statutory schemes in which offenses may be categorized as either misdemeanors or felonies. Limiting the Bureau to an analysis of how an offense is categorized in local, state, tribal, or federal criminal codes, rather than to an analysis of the nature of the prior offense, would effectively prevent the Director from exercising the discretion authorized by 18 U.S.C. 3621(e). Furthermore, eliminating the analysis of prior violent misdemeanor convictions would allow inmates to receive the benefit of early release merely because of the manner in which the prior convictions were categorized.
Additionally, 28 CFR 550.55(b)(6) provides that inmates who have been convicted of an attempt, conspiracy, or other offense which involved certain underlying offenses are also precluded from early release eligibility. Many state statutes provide that “attempt” convictions are to be categorized as one degree lower than the underlying offense (
Further, based on a random sampling of inmates who participated in RDAP but were precluded from RDAP early release eligibility, the Bureau estimates that of the 856 inmates precluded in the year 2014 based only on convictions for prior offense, at least half that number would have been eligible for early release if the Bureau had not considered prior offenses greater than 10 years old. The Fiscal Year 2015 estimated annual marginal rate to incarcerate an inmate in the Bureau of Prisons is $11,324 per inmate. Based on an estimate of 400 inmates released up to a year early if this proposed rule change is made, that could equate to a cost avoidance of over $4.5 million per year.
Also, in § 550.55(b), the Director exercises his discretion to disallow particular categories of inmates from eligibility for early release, including, in (6), those who were convicted of an attempt, conspiracy, or other offense which involved an underlying offense listed in paragraph (b)(4) and/or (b)(5) of § 550.55. We narrowed the language of § 550.55(b)(6) to preclude only those inmates whose prior conviction involved direct knowledge of the underlying criminal activity and who either participated in or directed the underlying criminal activity. This change tailors the regulation to the congressional intent to exclude from early release consideration only those inmates who have been convicted of a violent offense. Furthermore, the changed language expands early release benefits to more inmates.
Beginning in 1991, in coordination with the National Institute on Drug Abuse, the Bureau conducted a 3-year outcome study of the RDAP. Federal Bureau of Prisons (2000). TRIAD Drug Treatment Evaluation Project Final Report of Three-Year Outcomes: Part I. (“TRIAD Study”). The study evaluated the effect of treatment on both male and female inmates (1,842 men and 473 women). This study demonstrates that the Bureau's RDAP makes a positive difference in the lives of inmates and improves public safety.
The TRIAD study showed that the RDAP program is effective in reducing recidivism. Male participants were 16 percent less likely to recidivate and 15 percent less likely to relapse than similarly situated inmates who do not participate in residential drug abuse treatment for up to 3 years after release. The analysis also found that female inmates who participate in RDAP are 18 percent less likely to recidivate than similarly situated female inmates who do not participate in treatment.
The TRIAD study defined criminal recidivism was defined two ways: (1) An arrest for a new offense or (2) an arrest for a new offense
Offenders who completed the residential drug abuse treatment program and had been released to the community for three years were less likely to be re-arrested or to be detected for drug use than were similar inmates who did not participate in the drug abuse treatment program. Specifically, 44.3 percent of male inmates who completed the program were likely to be re-arrested or revoked within three years after release to supervision in the community, compared to 52.5 percent of those inmates who did not receive such treatment. For women, 24.5 percent of those who completed the residential drug abuse treatment program were arrested or revoked within three years after release, compared to 29.7 percent of the untreated women.
With respect to drug use, 49.4 percent of men who completed treatment were likely to use drugs within 3 years following release, compared to 58.5 percent of those who did not receive treatment. Among female inmates who completed treatment, 35.2 percent were likely to use drugs within the three-year postrelease period in the community, compared to 42.6 percent of those who did not receive such treatment.
Approximately 58 commenters felt that eligibility for early release should be offered for participation in RDAP to inmates with “non-violent” offenses and/or inmates with convictions for offenses in which firearm possession was present but perhaps no evidence of actual use was found.
We have addressed this issue in the final rule published on January 14, 2009 (74 FR 1892), in which we stated the following:
Under 18 U.S.C. 3621(e), the Bureau has the discretion to determine eligibility for early release consideration (
The Director of the Bureau, in his discretion, chooses to preclude from early release consideration inmates convicted of offenses involving carrying, possession or use of a firearm and offenses that present a serious risk of physical force against person or property, as described in § 550.55(b)(5)(ii) and (iii). Further, in the correctional experience of the Bureau, the offense conduct of both armed offenders and certain recidivists suggests that they pose a particular risk to the public. There is a significant potential for violence from criminals who carry, possess or use firearms.
As the Supreme Court noted in
It is important to note that these inmates are not precluded from participating in the drug abuse treatment program. However, these inmates are not eligible for early release consideration because the specified elements of these offenses pose a significant threat of dangerousness or violent behavior to the public. This threat presents a potential safety risk to the public if inmates who have demonstrated such behavior are released to the community prematurely. Also, early release would undermine the seriousness of these offenses as reflected by the length of the sentence which the court deemed appropriate to impose.
Approximately 12 commenters stated that all inmates participating in any type of drug treatment with the Bureau of Prisons should be eligible for early release, including non-U.S. citizens and all other currently non-eligible inmates.
18 U.S.C. 3621(e) only authorizes the Bureau to extend drug abuse treatment participation and eligibility for early release to inmates with “a substance abuse problem,” not to all inmates. Although, by statute, inmates without a substance abuse problem may not have the opportunity for early release consideration, § 550.52 allows all inmates to participate in non-residential drug abuse treatment services. The final rule seeks to make the program even more inclusive.
In the final rule, we modify the language of § 550.55(b)(4), which precludes inmates from consideration for early release if they have a prior felony or misdemeanor conviction for homicide, forcible rape, robbery, aggravated assault, arson, kidnaping, or an offense that involves sexual abuse of minors. The Bureau modifies this language to clarify that we intend to limit consideration of “prior felony or misdemeanor” convictions to those which were imposed within the ten years prior to the date of sentencing for the inmate's current commitment. By making this change, the Bureau clarifies that it will not preclude from early release eligibility those inmates whose prior felony or misdemeanor convictions were imposed longer than ten years before the date of sentencing for the inmate's current commitment.
18 U.S.C. 3621(e) provides the Director of the Bureau of Prisons the discretion to grant an early release of up to one year upon the successful completion of a residential drug abuse treatment program. In exercising the Director's statutory discretion, we considered the crimes of homicide, rape, robbery, aggravated assault, arson, and kidnaping. In the FBI's Uniform Crime Reporting (UCR) Program, violent crime is composed of four offenses: Murder and non-negligent manslaughter, rape, robbery, and aggravated assault. Violent crimes are defined in the UCR Program as those offenses which involve force or threat of force. The Director exercised his discretion, therefore, to include these categories of violent crimes and also expanded the list to include arson and kidnaping, as they also are crimes of an inherently violent nature and particular dangerousness to the public.
As mentioned, this change is being made to clarify that inmates will be eligible for early release eligibility if their prior felony or misdemeanor convictions are older than ten years before the date of sentencing for the inmate's current commitment. In other words, for example, if an inmate's prior felony or misdemeanor was imposed nine years before the date of sentencing for the inmate's current commitment, the inmate WILL NOT be considered for early release eligibility. The Director exercises discretion to
It is important to note that the Bureau does not deny drug abuse treatment to any inmates, including inmates who are not U.S. citizens. Instead, we offer several program options, such as a drug abuse education course or non-residential drug abuse treatment to inmates who have drug problems but who do not otherwise meet the admission criteria for the RDAP. These options are currently available for “non-U.S. citizen” inmates.
Several commenters stated that inmates whose records and/or offenses of conviction show no elements of drug abuse should also be permitted to participate in drug treatment.
As noted in response to the previous comment, the Bureau does not deny
With regard to eligibility for early release, however, as stated earlier, 18 U.S.C. 3621(e) only authorizes the Bureau to extend drug abuse treatment participation and eligibility for early release to inmates with “a substance abuse problem,” not to all inmates.
Because the early release is such a powerful incentive, as evidenced by over 5,000 inmates waiting to enter treatment, the Bureau must take appropriate measures to ensure that inmates requesting treatment actually have a substance abuse problem that can be verified with documentation. For those inmates who want treatment but do not have the requisite documentation to enter the RDAP, non-residential counseling services are available and encouraged.
Three commenters felt that if inmates earn early release eligibility, the time should be taken from “time served.” While it is unclear from the comments, the Bureau interprets this to mean that the commenters believe that up to a year of early release should be taken from the total amount of time that the inmate has already served, including any time in custody before the date of sentencing. However, the Bureau is bound by statute in this regard. 18 U.S.C. 3621(e)(2)(B) provides that “[t]he period a prisoner convicted of a nonviolent offense remains in custody after successfully completing a treatment program may be reduced by the Bureau of Prisons, but such reduction may not be more than one year from the term the prisoner must otherwise serve.” In other words, the early release time must be taken from the term of sentence imposed.
One commenter felt that inmates who escape should be removed from RDAP. The same commenter also felt that staff should retain discretion to remove inmates who commit 100 series prohibited acts.
In the proposed rule, we proposed to delete language in § 550.53(g)(3) which requires the Drug Abuse Treatment Program Coordinator to remove an inmate
As stated above, because the
One commenter felt that drug treatment specialists should be qualified in addiction treatment or education. As we stated in the preamble to the proposed rule, all of the treatment “specialists,” also known as “coordinators” in the Bureau have a doctorate degree in psychology. They are well qualified to use their knowledge of treatment and the behavior of individuals suffering from substance abuse to objectively determine if a participant is ready to complete the program.
Two commenters believed that the Bureau should increase the incentives that are available for inmates who participate in drug treatment but may not be eligible for early release. Currently, 28 CFR 550.54 describes possible incentives for RDAP participation, including limited financial awards, community-based treatment programs, preferred living quarters, special recognition privileges, achievement awards, and formal consideration for a nearer release transfer for medium and low security inmates. The Bureau believes the allowance of these incentives is adequate.
One commenter felt that inmate waiting lists for participation in RDAP treatment are too long. Currently, the Bureau has over 5,000 inmates waiting for residential treatment that is provided with limited Bureau resources. Inmates are selected for admission based on their proximity to release. Those nearest to release enter the program first. Using this method, we are able to ensure all inmates who qualify for the program, and volunteer to participate, are able to complete the program before their release from prison.
One commenter felt that the 9-month RDAP was “too long” and that the program should instead be no more than 6 months.
Research of prison drug treatment programs has shown a greater percentage of success in treatment if a unit-based component of the treatment lasts for nine to twelve months. One study found a strong relationship between time-in-program and treatment outcomes. Wexler, Falkin, & Lipton:
Also, the National Institute on Drug Abuse funded three large-scale National Treatment evaluations covering three decades, the 1970s, 1980s, and 1990s. Collectively, these studies—known as the Drug Abuse Reporting Program, the Treatment Outcome Prospective Study and the Drug Abuse Treatment Outcome Study, examined treatment performance and predictors of treatment outcomes for samples of 65,000 individuals admitted for drug abuse treatment. NIH Publication Number 02-4877, August 2002. This NIH Publication provides one of the most comprehensive overviews of the most salient research findings derived from the 250 publications. Findings from publications based on this research give broad support for the effectiveness of treatment, particularly for those with an adequate length of stay.
The Bureau's inmate population generally tends toward greater instances of addictive disorders, anti-social personality disorders, and other types of disorders, such as depression, anxiety, etc. These additional issues, which must be dealt with when treating an inmate's substance abuse problem, increase the difficulty of successfully treating an inmate within a six-month period. Although the Bureau makes specific treatment decisions for inmates on a case-by-case basis, based on the above research, and given the greater difficulty inherent in maintaining the success of drug treatment for inmates, we chose to require the unit-based component to be at least nine to twelve months to afford the greatest likelihood of success in treatment.
One commenter stated that “[b]ecause [lesbian, gay, bisexual and transgender] LGBTQ people face additional challenges while incarcerated, from physical safety to accessing health care, we recommend that all treatment specialists receive cultural competency training to best address the needs of LGBTQ prisoners in RDAP.”
The Bureau agrees with this important concern. All Bureau staff receive training both at the start of their employment and annually regarding the Bureau's anti-discrimination policy, including cultural competency training to best address the needs of LGBTQ prisoners in RDAP. It is the policy of the Bureau of Prisons to “eliminate any internal policy, practice, or procedure that results in discrimination on the basis of race, color, sex, religion, national origin, age, physical or mental disability, genetic information, equal pay, pregnancy, retaliation, sexual orientation, gender identity, or status as a parent” Bureau of Prisons Anti-Discrimination Policy, PS 3713.25, June 16, 2014.
This regulation has been drafted and reviewed in accordance with Executive Order 12866, “Regulatory Planning and Review,” section 1(b), Principles of Regulation, and Executive Order 13563, “Improving Regulation and Regulatory Review.” These executive orders direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility.
The Director, Bureau of Prisons has determined that this rule is a “significant regulatory action” under Executive Order 12866, section 3(f), and accordingly this rule has been reviewed by the Office of Management and Budget.
As context regarding the current impact of the RDAP (
For instance, with regard to § 550.55(b)(6), changing “other offense” to “solicitation to commit,” based on prior year data (from 2014), we estimate that approximately 45 inmates would be made eligible for early release as a result of the changes made by this rule.
Since 2013, the Bureau was able to expand RDAP capacity due to increased funding through annual congressional budgeting processes. The Bureau will therefore not require more resources in order to put more individuals through RDAP. RDAP is a nine-month program. The program has a treatment capacity large enough to accommodate about 8,400 participants at any given time. This number also reflects inmates who may drop out of the program and are replaced with other inmates on the wait list. Therefore, during a 12-month period, program capacity is filled twice (8,400 inmates will complete one nine-month term, and another 8,400 inmates will begin a new nine-month term), which means that at least 16,800 participants can be included in the program in a given year.
This regulation would not have substantial direct effects on the States, on the relationship between the national government and the States, or on distribution of power and responsibilities among the various levels of government. Under Executive Order 13132, this rulemaking does not have sufficient federalism implications for which we would prepare a Federalism Assessment.
The Director of the Bureau of Prisons, under the Regulatory Flexibility Act (5 U.S.C. 605(b)), reviewed this regulation. By approving it, the Director certifies that it will not have a significant economic impact upon a substantial number of small entities because: This rule is about the correctional management of offenders committed to the custody of the Attorney General or the Director of the Bureau of Prisons, and its economic impact is limited to the Bureau's appropriated funds.
This rule will not cause State, local and tribal governments, or the private sector, to spend $100,000,000 or more in any one year, and it will not significantly or uniquely affect small governments. We do not need to take action under the Unfunded Mandates Reform Act of 1995.
This rule is not a major rule as defined by section 804 of the Small Business Regulatory Enforcement Fairness Act of 1996. This rule would not result in an annual effect on the economy of $100,000,000 or more; a
Accordingly, for the reasons set forth in the preamble, part 550 of title 28 of the Code of Federal Regulations is amended as follows:
5 U.S.C. 301; 18 U.S.C. 3521-3528, 3621, 3622, 3624, 4001, 4042, 4046, 4081, 4082 (Repealed in part as to offenses committed on or after November 1, 1987), 5006-5024 (Repealed October 12, 1984 as to offenses committed after that date), 5039; 21 U.S.C. 848; 28 U.S.C. 509, 510; Title V, Pub. L. 91-452, 84 Stat. 933 (18 U.S.C. Chapter 223).
The purpose of this subpart is to describe the Bureau's drug abuse treatment programs for the inmate population, to include drug abuse education, non-residential drug abuse treatment services, and residential drug abuse treatment programs (RDAP). These services are provided by Psychology Services department.
(a) * * *
(1)
(3)
(f)
(b) * * *
(4) Inmates who have a prior felony or misdemeanor conviction within the ten years prior to the date of sentencing for their current commitment for:
(6) Inmates who have been convicted of an attempt, conspiracy, or solicitation to commit an underlying offense listed in paragraph (b)(4) and/or (b)(5) of this section; or
(a) For inmates to successfully complete all components of RDAP, they must participate in CTS. If inmates refuse or fail to complete CTS, they fail RDAP and are disqualified for any additional incentives.
(b) Inmates with a documented drug use problem who did not choose to participate in RDAP may be required to participate in CTS as a condition of participation in a community-based program, with the approval of the Supervisory Community Treatment Services Coordinator.
Coast Guard, DHS.
Notice of deviation from regulation.
The Coast Guard has issued a temporary deviation from the operating schedule that governs the upper deck of the Steel Bridge across the Willamette River, mile 12.1, at Portland, OR. The deviation is necessary to accommodate the route of the annual Starlight Parade event. This deviation allows the upper deck of the Steel Bridge to remain in the closed-to-navigation position to allow for the safe movement of event participants.
This deviation is effective from 7 p.m. to 11:30 p.m. on June 4, 2016.
The docket for this deviation, [USCG-2016-0338] is available at
If you have questions on this temporary deviation, call or email Mr. Steven Fischer, Bridge Administrator, Thirteenth Coast Guard District; telephone 206-220-7282, email
TriMet Public Transit requested the upper deck of the Steel Bridge remain closed-to-navigation to accommodate the annual Starlight Parade event. The Steel Bridge crosses the Willamette River at mile 12.1 and is a double-deck lift bridge with a lower lift deck and an upper lift deck which operate independent of each other. When both decks are in the down position the bridge provides 26 feet of vertical clearance above Columbia River Datum 0.0. When the lower deck is in the up position the bridge provides 71 feet of vertical clearance above Columbia River Datum 0.0. The normal operating schedule for the Steel Bridge is in accordance with 33 CFR 117.897(c)(3)(ii). This deviation period is from 7 p.m. to 11:30 p.m. on June 4, 2016. The deviation allows the upper deck of the Steel Bridge to remain in the closed-to-navigation position and need not open for maritime traffic from 7 p.m. to 11:30 p.m. on June 4, 2016.
Waterway usage on this part of the Willamette River includes vessels ranging from commercial tug and barge to small pleasure craft. Vessels able to pass through the bridge in the closed positions may do so at anytime. The bridge will be able to open for emergencies, and there is no immediate alternate route for vessels to pass. The Coast Guard will also inform the users of the waterways through our Local and Broadcast Notices to Mariners of the change in operating schedule for the bridge so that 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 designated time period. This deviation from the operating regulations is authorized under 33 CFR 117.35.
Coast Guard, DHS.
Notice of deviation from drawbridge regulation.
The Coast Guard has issued a temporary deviation from the operating schedule that governs the Norfolk Southern #7 Railroad Bridge across the Atlantic Intracoastal Waterway, South Branch of the Elizabeth River, mile 5.8, at Chesapeake, VA. The deviation is necessary to perform urgent bridge repairs. This deviation allows the bridge to remain in the closed-to-navigation position.
This deviation is effective without actual notice from April 26, 2016 through 1 p.m. on June 9, 2016. For the purposes of enforcement, actual notice will be used from 9 a.m. on April 25, 2016, until April 26, 2016.
The docket for this deviation, [USCG-2016-0285] is available at
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
Norfolk Southern, the bridge owner that operates the #7 Railroad Bridge, has requested a temporary deviation from the current operating regulation to perform urgent repairs by changing the flat tracks across the north and south girders in two phases. The bridge is a single bascule span and has a vertical clearance in the closed position of seven feet above mean high water.
Under this temporary deviation, the bridge will remain in the closed-to-navigation position from 9 a.m. to 1 p.m. Monday through Thursday, April 25 to May 26, 2016; and from 9 a.m. to 1 p.m. Monday through Thursday, June 6 to June 9, 2016. At all other times, the bridge will operate in accordance with the operating regulations set out in 33 CFR 117.997(d).
Vessels able to pass through the bridge in the closed position may do so at any time. The bridge will not 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.
Coast Guard, DHS.
Notice of deviation from drawbridge regulation.
The Coast Guard has issued a temporary deviation from the operating schedule that governs the Highway 160 drawbridge across Three Mile Slough, mile 0.1, at Rio Vista, CA. The deviation is necessary to allow the bridge owner to complete the necessary sand blasting and painting rehabilitation. This deviation allows the bridge to be secured in the closed-to-navigation position during the deviation period.
This deviation is effective without actual notice from April 26, 2016 through 11:59 p.m. on April 30, 2016. For the purposes of enforcement, actual notice will be used from 12:01 a.m. on April 18, 2016, until April 26, 2016.
The docket for this deviation, [USCG-2016-0307], is available at
If you have questions on this temporary deviation, call or email David H. Sulouff, Chief, Bridge Section, Eleventh Coast Guard District; telephone 510-437-3516, email
The California Department of Transportation has requested a temporary change to the operation of the Highway 160 drawbridge, mile 0.1, over Three Mile Slough, at Rio Vista, CA. The drawbridge navigation span provides 12 feet vertical clearance above Mean High Water in the closed-to-navigation position. In accordance with 33 CFR 117.5, the draw opens on signal. Navigation on the waterway is commercial, search and rescue, law enforcement, and recreational.
The drawbridge will be secured in the closed-to-navigation position from 12:01 a.m. on April 18, 2016 to 11:59 p.m. on April 30, 2016, to allow the bridge owner to complete the necessary sand blasting and painting rehabilitation after unforeseen events have caused project delays. A containment scaffolding system has been installed below low steel of the entire length of the bridge structure, reducing vertical clearance for navigation by not more than 4 feet, and is lighted at night with red lights. This temporary deviation has been coordinated with the waterway users. No objections to the proposed temporary deviation were raised.
Vessels able to pass through the bridge in the closed position may do so at anytime. The bridge will not be able to open for emergencies. The confluence of the San Joaquin and Sacramento rivers can be used as an alternate route for vessels unable to pass through the bridge in the closed position. The Coast Guard will also inform waterway users through our Local and Broadcast Notices to Mariners of the change in operating schedule for the bridge so that vessel operators can arrange their
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.
Environmental Protection Agency (EPA).
Direct final rule.
The Environmental Protection Agency (EPA) is taking direct final action to approve the 2011 base year inventories for the five Pennsylvania marginal nonattainment areas for the 2008 8-hour ozone national ambient air quality standard (NAAQS), the Allentown-Bethlehem-Easton, Lancaster, Pittsburgh-Beaver Valley, and Reading nonattainment areas and the Pennsylvania portion of the Philadelphia-Wilmington-Atlantic City nonattainment area. The Commonwealth of Pennsylvania submitted the emission inventories to meet the nonattainment requirements for marginal ozone nonattainment areas for the 2008 8-hour ozone NAAQS. EPA is approving the 2011 base year emissions inventories for the 2008 8-hour ozone NAAQS as a revision to the Pennsylvania State Implementation Plan (SIP), in accordance with the requirements of the Clean Air Act (CAA).
This rule is effective on June 27, 2016 without further notice, unless EPA receives adverse written comment by May 26, 2016. If EPA receives such comments, it will publish a timely withdrawal of the direct final rule in the
Submit your comments, identified by Docket ID No. EPA-R03-OAR-2016-0002 at
Maria A. Pino, (215) 814-2181, or by email at
Ground-level ozone is formed when nitrogen oxides (NO
On July 18, 1997, EPA promulgated a revised ozone NAAQS of 0.08 ppm, averaged over eight hours. 62 FR 38855. This standard was determined to be more protective of public health than the previous 1979 1-hour ozone standard. In 2008, EPA revised the 8-hour ozone NAAQS from 0.08 to 0.075 ppm.
The Allentown-Bethlehem-Easton nonattainment area is comprised of Carbon, Lehigh, and Northampton Counties, all in Pennsylvania. Lancaster and Reading are single-county nonattainment areas, comprised of Lancaster County, Pennsylvania and Berks County, Pennsylvania, respectively. The Pittsburgh-Beaver Valley nonattainment area is comprised of Allegheny, Armstrong, Beaver, Butler, Fayette, Washington, and Westmoreland Counties, all in Pennsylvania. The Philadelphia-Wilmington-Atlantic City nonattainment areas includes Bucks, Chester, Delaware, Montgomery, and Philadelphia Counties in Pennsylvania, plus counties in Delaware, Maryland, and New Jersey. Under section 172(c)(3) of the CAA, Pennsylvania is required to submit comprehensive, accurate, and current inventories of actual emissions from all sources of the relevant pollutants in its marginal nonattainment areas,
On October 1, 2015, EPA strengthened the ground-level ozone NAAQS to 0.070 ppm, based on extensive scientific evidence about ozone's effects on public health and welfare.
Under CAA section 172(c)(3), states are required to submit a comprehensive, accurate, current accounting of actual emissions from all sources (point, nonpoint, nonroad, and onroad) in the nonattainment area. CAA section 182(a)(1) requires that areas designated as nonattainment and classified as marginal are to submit an inventory of all sources of ozone precursors no later than 2 years after the effective date of designation. EPA's guidance for emissions inventory development calls for actual emissions to be used in the base year inventory. The state must report annual emissions as well as “summer day emissions.” As defined in 40 CFR 51.900(v), “summer day emissions” means, “an average day's emissions for a typical summer work weekday. The state will select the particular month(s) in summer and the day(s) in the work week to be represented.”
On September 30, 2015, the Pennsylvania Department of Environmental Protection (PADEP), submitted a SIP revision entitled, “2011 Base Year Inventory for the Pennsylvania Portion of Five 2008 Ozone Nonattainment Areas: Allentown-Bethlehem-Easton, Lancaster, Philadelphia-Wilmington-Atlantic City, Pittsburgh-Beaver Valley, Reading.” PADEP selected 2011 as its base year for SIP planning purposes, as recommended in EPA's final rule, “Implementation of the 2008 National Ambient Air Quality Standards for Ozone: State Implementation Plan Requirements.” 80 FR 12263 (March 6, 2015). PADEP's 2011 base year inventories include emissions estimates covering the general source categories of stationary point, stationary nonpoint, nonroad mobile, and onroad mobile. In its 2011 base year inventories, PADEP reported actual annual emissions and typical summer day emissions for the months of May through September for NO
Tables 1 through 5 summarize the 2011 VOC, NO
Point sources are large, stationary, identifiable sources of emissions that release pollutants into the atmosphere. Pennsylvania obtained its point source data from the Pennsylvania Air Information Management System (AIMS). PADEP regional offices identify and inventory stationary sources for AIMS through inspections, surveys, and permitting. Inventory data for point sources in Allegheny and Philadelphia Counties was developed by the Allegheny County Health Department (ACHD) and the Philadelphia Air Management Services (AMS), respectively. ACHD and AMS provided their point source data to PADEP and also submitted it to EPA for the National Emission Inventory (NEI).
Nonpoint sources, also known as area sources, are sources of pollution that are small and numerous, and that have not been inventoried as specific point or mobile sources. To inventory these sources, they are grouped so that emissions can be estimated collectively using one methodology. Examples are residential heating emissions and consumer solvents. PADEP calculated nonpoint emissions for each county by multiplying emissions factors specific for each source category with some known indicator of collective activity for each source category, such as population or employment data.
Nonroad sources are mobile sources other than onroad vehicles, including aircraft, locomotives, construction and agricultural equipment, and marine vessels. Emissions from different source categories are calculated using various methodologies. PADEP relied on EPA's nonroad emissions calculations, from the 2011 NEI, version 1. Onroad or highway sources are vehicles, such as cars, trucks, and buses, which are operated on public roadways. PADEP estimated highway emissions using EPA's Motor Vehicle Emission Simulator (MOVES) model, version 2010b.
EPA reviewed Pennsylvania's 2011 base year emission inventories' results, procedures, and methodologies for the Allentown-Bethlehem-Easton, Lancaster, Pittsburgh-Beaver Valley, and Reading nonattainment areas and the Pennsylvania portion of the Philadelphia-Wilmington-Atlantic City nonattainment area and found them to be acceptable and approvable. EPA's review is detailed in two Technical Support Documents (TSD) prepared for this rulemaking, the January 7, 2016 “Technical Support Document (TSD) for the 2011 Base Year Inventory for Areas of Marginal Nonattainment of the 2008 Ozone NAAQS in Pennsylvania” and the January 21, 2016, “Technical Support Document (TSD)—Review of the On-Road Portion of the 2011 Base Year Inventories for the Pennsylvania Portion of the Following Five 2008 8-Hour Ozone National Ambient Air Quality Standard (NAAQS) Nonattainment Areas: Allentown-Bethlehem-Easton, Lancaster, Philadelphia-Wilmington-Atlantic City, Pittsburgh-Beaver Valley, and Reading.” These TSDs are available on line at
EPA is approving the 2011 base year inventories for the 2008 8-hour ozone NAAQS for the Allentown-Bethlehem-Easton, Lancaster, Pittsburgh-Beaver Valley, and Reading nonattainment areas, and the Pennsylvania portion of the Philadelphia-Wilmington-Atlantic City nonattainment area because the inventories were prepared in accordance with requirements in sections 172(c)(3) and 182(a) of the CAA and its implementing regulations including 40 CFR 51.915. EPA is publishing this rule without prior proposal because EPA views this as a noncontroversial amendment and anticipates no adverse comment. However, in the “Proposed Rules” section of today's
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by June 27, 2016. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of today's
This action approving Pennsylvania's 2011 base year inventories for the 2008 8-hour ozone NAAQS for the Allentown-Bethlehem-Easton, Lancaster, Pittsburgh-Beaver Valley, and Reading nonattainment areas, and the Pennsylvania portion of the Philadelphia-Wilmington-Atlantic City nonattainment area may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2)).
Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.
40 CFR part 52 is amended as follows:
42 U.S.C. 7401
(e) * * *
(1) * * *
(bb) EPA approves, as a revision to the Pennsylvania State Implementation Plan, the 2011 base year emissions inventories for the Allentown-Bethlehem-Easton, Lancaster, Pittsburgh-Beaver Valley, and Reading nonattainment areas, and the Pennsylvania portion of the Philadelphia-Wilmington-Atlantic City nonattainment area for the 2008 8-hour ozone national ambient air quality standard submitted by the Pennsylvania Department of the Environmental on September 30, 2015. The 2011 base year emissions inventories includes emissions estimates that cover the general source categories of point sources, nonroad mobile sources, area sources, onroad mobile sources, and biogenic sources. The pollutants that comprise the inventory are nitrogen oxides (NO
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is taking final action to approve portions of the State Implementation Plan (SIP) submission, submitted by the State of North Carolina, through the Department of Environmental Quality, formerly the Department of Environment and Natural Resources, Division of Air Quality (DAQ), on March 18, 2014, for inclusion into the North Carolina SIP. This final action pertains to the infrastructure requirements of the Clean Air Act (CAA or Act) for the 2010 1-hour sulfur dioxide (SO
This rule will be effective May 26, 2016.
EPA has established a docket for this action under Docket Identification No. EPA-R04-OAR-2015-0150. All documents in the docket are listed on the
Michele Notarianni, Air Regulatory Management Section, Air Planning and Implementation Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303-8960. Ms. Notarianni can be reached via electronic mail at
On June 22, 2010 (75 FR 35520), EPA revised the primary SO
In a proposed rulemaking published on February 25, 2016, EPA proposed to approve North Carolina's 2010 1-hour SO
With the exception of the PSD permitting requirements for major sources of section 110(a)(2)(C) and (J), the interstate transport requirements of section 110(a)(2)(D)(i)(I) and (II) (prongs 1 through 4), and state boards requirements of section 110(a)(2)(E)(ii), EPA is taking final action to approve North Carolina's infrastructure submission submitted on March 18, 2014, for the 2010 1-hour SO
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable federal regulations.
• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
The SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by June 27, 2016. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements.
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Reporting and recordkeeping requirements, Sulfur dioxide.
40 CFR part 52 is amended as follows:
42 U.S.C. 7401
(e) * * *
Environmental Protection Agency (EPA).
Direct final rule.
The Environmental Protection Agency (EPA) is issuing a direct final rule to amend the EPA Acquisition Regulation (EPAAR) to include a new solicitation provision and contract clause to implement the United States Government Policy for Institutional Oversight of Life Sciences Dual Use Research of Concern (iDURC Policy). This direct final rule requires certain domestic institutions that receive contract funding from EPA to conduct or sponsor life sciences research and institutions outside of the United States that receive contract funding from EPA to conduct or sponsor research with the agents or toxins listed in the iDURC Policy, to review and communicate their research responsibly in accordance with the iDURC Policy.
This rule is effective on June 27, 2016 without further notice, unless EPA receives adverse comment by May 26, 2016. If EPA receives adverse comment, we will publish a timely withdrawal in the
Submit your comments, identified by Docket ID No. EPA-HQ-OARM-2016-0046; FRL 9941-86-OARM at
Holly Hubbell, Policy, Training, and Oversight Division (3802R), Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460; telephone number: 202-564-1091; email address:
EPA is publishing this rule without a prior proposed rule because we view this as a noncontroversial action and anticipate no adverse comment as this final rule amends the EPAAR to add a new solicitation provision and contract clause for iDURC Policy compliance. The iDURC policy was already published in the
The EPA is promulgating a solicitation provision and contract clause to implement the iDURC Policy. The solicitation provision and contract clause notify institutions of the need to comply, and to ensure that institutions subject to the iDURC Policy represent that they shall comply with the iDURC Policy prior to or upon contract award. Institutions within the United States that receive funding from EPA to conduct or sponsor life sciences research are subject to the iDURC Policy if they conduct or sponsor research involving any of the agents or toxins listed in the iDURC Policy, regardless of the funding source. Institutions outside of the United States are subject to the iDURC Policy if they receive funding from EPA to conduct or sponsor research with any agents or toxins listed in the iDURC Policy. Institutions that are subject to the iDURC Policy have a number of responsibilities—at a minimum, they are advised to train laboratory personnel involved in such projects and maintain records of that training, establish an institutional review process to assess the research for its potential to meet the definition of
A. Do not submit CBI to EPA through the Web site
B. Tips for Preparing Your Comments. When submitting comments, see the commenting tips at:
• Identify the rulemaking by docket number and other identifying information (subject heading,
• Follow directions—The Agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) Part or section number.
• Explain why you agree or disagree, suggest alternatives, and substitute language for your requested changes.
• Describe any assumptions and provide any technical information and/or data that you used.
• If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
• Provide specific examples to illustrate your concerns, and suggest alternatives.
• Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
C. Make sure to submit your comments by the comment period deadline identified.
This action is not a “significant regulatory action” under the terms of Executive Order (EO) 12866 (58 FR 51735, October 4, 1993) and is therefore not subject to review under the EO 12866 and 13563 (76 FR 3821, January 21, 2011).
The information collection activities in this rule have been submitted for approval to the Office of Management and Budget (OMB) under the PRA. The Information Collection Request (ICR) document that the EPA prepared has been assigned EPA ICR number 2530.01. You can find a copy of the ICR in the docket for this rule, and it is briefly summarized here. The information collection requirements are not enforceable until OMB approves them.
The iDURC Policy instructs institutions subject to the Policy train individuals within their institution that are conducting research involving any of the agents or toxins identified in the Policy. Additionally, institutions are to maintain records of that training. EPA is submitting an information collection request for these recordkeeping requirements. EPA may collect the training records to ensure EPA is in compliance with the Policy, and that institutions receiving EPA funding are appropriately complying as well. EPA does not expect any issues of confidentiality to be relevant to this information collection.
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 OMB control number.
This action is not subject to the RFA. The RFA applies only to rules subject to notice and comment rulemaking requirements under the Administrative Procedure Act (APA), 5 U.S.C. 553, or any other statute. This rule pertains to contracts, which the APA expressly exempts from notice and comment rulemaking requirements under 5 U.S.C. 553(a)(2).
This action does not contain any unfunded mandates as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. The action imposes no enforceable duty on any State, local or tribal governments or the private sector.
This action does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132.
This action does not have tribal implications, as specified in Executive Order 13175. No substantial compliance costs are expected. There will be no impact 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. Thus, Executive Order 13175 does not apply to this action.
The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because it does not concern an environmental health risk or safety risk.
This action is not subject to Executive Order 13211 (66 FR 28335 (May 22, 2001), because it is not a significant regulatory action under Executive Order 12866.
This action does not involve technical standards.
EPA has determined that this final rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it does not affect the level of protection provided to human health or the environment in the general public.
This action is subject to the CRA, and the EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. This action is not a “major rule” as defined by 5 U.S.C. 804(2).
Environmental protection, Dual use research, Institutional oversight, Life sciences, Research and development.
Environmental protection, Dual use research, Institutional oversight, Life sciences, Research and development.
For the reasons stated in the preamble, 48 CFR parts 1535 and 1552 are amended as set forth below:
Sec. 205(c), 63 Stat. 390, as amended, 40 U.S.C. 486(c).
(c) Contracting officers shall insert 48 CFR 1552.235-81—“Notice of Institutional Oversight of Life Sciences Dual Use Research of Concern-Representation” when notified in the Advance Procurement Plan (APP) or by an EPA funding/requesting office, in accordance with the Institutional Oversight of Life Sciences Dual Use Research of Concern (iDURC) EPA Order 1000.19—“Policy and Procedures for Managing Dual Use Research of Concern,” in solicitations that will result in a contract under which EPA funding will be used by the recipient to conduct or sponsor “life sciences research”.
(h) Contracting officers shall insert 48 CFR 1552.235-82—“Institutional
5 U.S.C. 301 as amended, 40 U.S.C. 486(c); and 41 U.S.C. 418b.
As prescribed in 1535.007(c), insert the following solicitation provision:
(a)
(b)
(1) An institution within the United States that conducts or sponsors life sciences research that involves one or more of the agents or toxins listed in section 6.2.1 of the “United States Government Policy for Institutional Oversight of Life Sciences Dual Use Research of Concern” (
(2) An institution outside of the United States that receives funds to conduct or sponsor research that involves one or more of the agents or toxins listed in section 6.2.1 of the
(c)
(End of Provision)
As prescribed in 1535.007-70(h), insert the following contract clause:
(a)
(b)
(1) Is an institution within the United States that conducts or sponsors, or begins to conduct or sponsor life sciences research that involves one or more of the agents or toxins listed in Section 6.2.1 of the
(2) Is an institution outside the United States that receives funds through this contract to conduct or sponsor research that involves one or more of the agents or toxins listed in Section 6.2.1 of the
(c)
(End of clause)
National Aeronautics and Space Administration.
Technical amendments.
NASA is making technical amendments to the NASA FAR Supplement (NFS) to provide needed editorial changes.
Manuel Quinones, NASA, Office of Procurement, Contract and Grant Policy Division, via email at
As part NASA's retrospective review of existing regulations, NASA is conducting periodic reviews of NASA FAR Supplement (NFS) to ensure the accuracy of information and guidance disseminated to the acquisition community This rule corrects typographical errors as well as inadvertent omissions from past rulemaking actions. A summary of changes follows:
• Section 1815.408-70(c) is revised to correct a typographical error.
• Subpart 1842.70 is revised to reinsert sections 1842.7002 and 1842.7003 inadvertently removed by amendatory instruction 2 of final rule 80 FR 52644 issued on September 1, 2015.
• Sections 1852.215-79, 1852.217-72, 1852.223-73 (ALTERNATE I), 1852.223-75, 1852.227-88, 1852.228-71, 1852.239-70, 1852.245-73, 1852.245-82, 1852.245-83, 1852.246-73 are revised to correct their prescription references.
Government procurement.
Accordingly, 48 CFR parts 1815, 1842, and 1852 are amended as follows:
51 U.S.C. 20113(a) and 48 CFR chapter 1.
The contracting officer shall insert the clause at 1852.242-71, Travel Outside of the United States, in cost-reimbursement solicitations and contracts where a contractor may travel outside of the United States and it is appropriate to require Government approval of the travel.
The contracting officer must insert the clause at 1852.242-78, Emergency Medical Services and Evacuation, in all solicitations and contracts when employees of the contractor are required to travel outside the United States or to remote locations in the United States.
14. Amend the introductory text of section 1852.246-73 by removing “1845.370(b)” and adding “1846.370” in its place.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final rule.
NMFS is issuing regulations under the Tuna Conventions Act to implement Recommendation C-12-11 of the Inter-American Tropical Tuna Commission (IATTC) by revising the management regime for the area of overlapping jurisdiction between the IATTC and the Commission for the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean (WCPFC). These regulations provide that the management measures of the IATTC no longer apply in the area of overlapping jurisdiction, with the exception of regulations governing the IATTC Regional Vessel Register. This rule is necessary for the United States to satisfy its obligations as a member of the IATTC.
This rule is effective May 26, 2016.
Copies of the Regulatory Impact Review and other supporting documents prepared for this final rule are available via the Federal eRulemaking Portal:
Rachael Wadsworth, NMFS, West Coast Region, 562-980-4036.
On December 28, 2015, NMFS published a proposed rule in the
Prior to this rule, both the U.S. regulations that implement the decisions of the IATTC (see 50 CFR part 300, subpart C) and the regulations that implement the decisions of the WCPFC (see 50 CFR part 300, subpart O) applied in the Area of Overlap. This rule implements Recommendation C-12-11 and establishes that, in the Area of Overlap, the regulations that implement the decisions of the IATTC at 50 CFR part 300, subpart C, do not apply; however, regulations pertaining to the IATTC Regional Vessel Register at 50 CFR 300.22(b) still apply.
The decisions of the WCPFC as implemented by NMFS regulations at 50 CFR part 300, subpart O would continue to apply in the Area of Overlap. Under this rule, the definition of the IATTC Convention Area is revised into two parts: (1) Include the Area of Overlap in the definition of the IATTC Convention Area for the purpose of IATTC Regional Vessel Register regulations at 50 CFR 300.22(b), and (2) exclude the Area of Overlap in the definition of the Convention Area for the purpose of regulations at 50 CFR part 300, subpart C.
The final rule is implemented under the authority of the Tuna Conventions Act (16 U.S.C. 951
NMFS notes that on January 29, 2016, after publication of the proposed rule, the United States deposited a formal notice of intent to withdraw from the Treaty on Fisheries between the Governments of Certain Pacific Island States and the Government of the United States of America (aka the South Pacific Tuna Treaty or SPTT). The SPTT entered into force in 1988, and provides for the establishment of terms and conditions for the U.S. tuna purse seine fleet to fish in certain areas of the Western and Central Pacific Ocean (WCPO), including waters under the jurisdiction of the Pacific Island Parties to the SPTT. A small part of the SPTT Convention Area is in the Overlap Zone; fishing vessels of the United States operating in the SPTT Convention Area are subject to 50 CFR part 300, subpart D. The SPTT will terminate 1 year from the receipt of the deposit of the formal notice of withdrawal unless the United States rescinds the notice. Due in part to uncertainty regarding fishing access pursuant to the SPTT in 2016, 15 large purse seine vessels (>362.8 metric ton well volume) that typically fish in the WCPO requested to be added to the IATTC Regional Vessel Register for fishing access in the EPO. Consequently, the combined well volume capacity of all U.S. purse seine vessels is 29,390 m
NMFS received one comment letter during the 30-day public comment period that closed on January 27, 2016. At the time the comment letter was received, no SPTT licenses had been issued to U.S. vessels for 2016. On February 29, 2016, the Pacific Island Parties to the SPTT and the United States finalized revised terms of access to waters under the jurisdiction of the Pacific Island parties for 2016. The comment letter included references to the situation with the SPTT, as described above, and the distribution of fishing effort of U.S. purse seine vessels between the WCPO and EPO. The concerns expressed in the comment letter were separated into three comments, which NMFS responds to below.
Due to the uncertainty in the future of the SPTT and the terms of fishing access to waters under the jurisdiction of Pacific Island parties for U.S. purse seine vessels in the future, NMFS intends to apply these regulations for 3 years, and may re-evaluate the location of fishing effort between the EPO and WCPO after that time to consider any substantial changes in the fisheries. In the event that the SPTT does terminate, owners of U.S. purse seine vessels may be able to obtain authorization from Pacific Island nations to fish in waters under their jurisdiction through alternative arrangements.
Although Comment 1 references that the fishing effort of 15 purse seine vessels recently changed from the WCPO to the EPO, NMFS evaluated the impacts of the rule by reviewing all U.S. fishing activity in the Area of Overlap, including other gear types outside of the purse seine fleet. As described in the Classification section of the proposed rule, U.S. vessels do not fish in the Area of Overlap often. The two gear types that have fished in the Area of Overlap since 2008 are troll vessels that target South Pacific albacore and purse seine vessels that target tropical tuna. The majority of the South Pacific albacore
Comment 3 also states that the rule “. . . applies a historical rather than forward looking rationale and therefore fails to account for changes clearly occurring and likely to occur in future fishing patterns. . . .” As described in the response to Comment 1, NMFS cannot speculate on the outcome of the SPTT negotiations or future fishing grounds of the purse seine fleet, and can only evaluate the information that is currently available. Furthermore, NMFS cannot predict other changes that may occur in future fishing patterns outside of the SPTT. For example, changes in regional fisheries management organization measures in the future could lead to more or less restrictive measures for fleets that would require more or less burden in the Area of Overlap. Given that the majority of the U.S. fleet that has utilized the Area of Overlap in the past eight years has fished predominantly in the WCPO, NMFS still considers the decisions of the WCPFC to be the more uniform set of regulations for the U.S. fleet to follow when in the Area of Overlap. Moreover, NMFS may re-evaluate the location of fishing effort between the EPO and WCPO three years from now to consider revising this rule in light of any substantial changes in the fisheries.
There are no changes in the regulatory text between the proposed and final rule.
The NMFS Assistant Administrator has determined that this rule is consistent with the Tuna Conventions Act and other applicable laws.
This rule has been determined to be not significant for purposes of Executive Order 12866.
Additionally, although there are no new collection-of-information requirements associated with this action that are subject to the Paperwork Reduction Act, existing collection-of-information requirements still apply under the following Control Numbers: (1) 0648-0596, Vessel Monitoring System (VMS) Requirements under the WCPFC; (2) 0648-0595, WCPFC Vessel Information Family of Forms; (3) 0648-0649, Transshipment Requirements under the WPCFC; and (4) 0648-0204, West Coast Region Family of Forms. Notwithstanding any other provision of the law, no person is required to respond to, and no person shall be subject to 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.
The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration during the proposed rule stage that this action would not have a significant economic impact on a substantial number of small entities. The factual basis for the certification was published in the proposed rule and is not repeated here. No comments were received regarding the certification. Therefore, the certification published with the proposed rule that states this rule is not expected to have a significant economic impact on a substantial number of small entities is still valid. As a result, a regulatory flexibility analysis was not required and none was prepared.
Fish, Fisheries, Fishing, Fishing vessels, International organizations,
For the reasons set out in the preamble, 50 CFR part 300 is amended as follows:
16 U.S.C. 951
(1) For the purpose of § 300.22(b), all waters of the Pacific Ocean within the area bounded by the west coast of the Americas and by 50° N. latitude from the coast of North America to its intersection with 150° W. longitude, then 150° W. longitude to its intersection with 50° S. latitude, and then 50° S. latitude to its intersection with the coast of South America; and
(2) For the purpose of all other sections and paragraphs of this subpart, all waters of the Pacific Ocean within the area bounded by the west coast of the Americas and by 50° N. latitude from the coast of North America to its intersection with 150° W. longitude, then 150° W. longitude to its intersection with 4° S. latitude, then 4° S. to its intersection with 130° W. longitude, then 130° W. longitude to its intersection with 50° S. latitude, and then 50° S. latitude to its intersection with the coast of South America.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final rule.
NMFS is implementing 2016-2018 specifications for Atlantic mackerel and the river herring and shad catch cap for Atlantic mackerel. This action also adjusts the butterfish mesh requirement, clarifies the use of net strengtheners in the butterfish fishery, and suspends indefinitely the pre-trip notification system requirement in the longfin squid fishery. These specifications set catch levels to prevent overfishing and allocate catch to commercial and recreational fisheries. Additionally, the adjustments to gear and reporting requirements in the squid and butterfish fisheries will make operation of the fisheries more efficient and less burdensome. These specifications and management measures are consistent with the Atlantic Mackerel, Squid, and Butterfish Fishery Management Plan and the recommendations of the Mid-Atlantic Fishery Management Council.
Effective May 26, 2016, except for the amendment to § 648.11(n)(1), which is effective April 26, 2016.
Copies of the specifications document, including the Environmental Assessment (EA) and Regulatory Impact Review (RIR)/Initial Regulatory Flexibility Analysis (IRFA), are available from: Dr. Christopher M. Moore, Executive Director, Mid-Atlantic Fishery Management Council, 800 North State Street, Suite 201, Dover, DE 19901, telephone (302) 674-2331. The framework document is also accessible via the Internet at:
Written comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this final rule may be submitted to NMFS, Greater Atlantic Regional Fisheries Office by email to
Carly Bari, Fishery Policy Analyst, (978) 281-9224.
Specifications, as referred to in this rule, are the combined suite of commercial and recreational catch levels established for one or more fishing years. The specifications process also allows for the modification of a select number of management measures, such as closure thresholds, gear restrictions, and possession limits. The Council's process for establishing specifications relies on provisions within the Atlantic Mackerel, Squid, and Butterfish Fishery Management Plan (FMP) and its implementing regulations, as well as requirements established by the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). Specifically, section 302(g)(1)(B) of the Magnuson-Stevens Act states that the Scientific and Statistical Committee (SSC) for each Regional Fishery Management Council shall provide its Council ongoing scientific advice for fishery management decisions, including recommendations for acceptable biological catch (ABC), preventing overfishing, maximum sustainable yield, and achieving rebuilding targets. The ABC is a level of catch that accounts for the scientific uncertainty in the estimate of the stock's defined overfishing level (OFL).
The Council's SSC met on May 13 and 14, 2015, to recommend an ABC for the 2016-2018 Atlantic mackerel specifications. On January 22, 2016, NMFS published a proposed rule for the 2016-2018 Atlantic mackerel, squid, and butterfish fishery specifications and management measures (81 FR 3768); the public comment period for the proposed rule ended February 22, 2016. NMFS previously set specifications for butterfish, longfin squid, and
The Atlantic Mackerel, Squid, and Butterfish FMP regulations require the specification of annual catch limits (ACL) and accountability measures (AM) for Atlantic mackerel and butterfish. (Both squid species are exempt from the ACL/AM requirements because they have life cycles of less than 1 year.) In addition, the regulations require the specification of domestic annual harvest (DAH), domestic annual processing (DAP), and total allowable level of foreign fishing (TALFF), along with joint venture processing (JVP) for
In addition to the specifications, this action adjusts the butterfish mesh requirement, clarifies the use of net strengtheners in the butterfish fishery, and suspends indefinitely the pre-trip notification system (PTNS) requirements in the longfin squid fishery.
The proposed rule for this action included the details of how the Council derived its recommended Atlantic mackerel specifications, and NMFS is not including these details in this final rule. This action establishes the Atlantic mackerel stock-wide ABC of 19,898 mt and the U.S. ABC of 11,009 mt, based on the formula U.S. ABC = Stock-wide ABC-C, where C is the estimated catch of Atlantic mackerel in Canadian waters (8,889 mt) for the upcoming fishing year. The ACL is set equal to the U.S. ABC at 11,009 mt, the commercial ACT is set at 9,294 mt, the DAH and DAP are both set at 9,177 mt, and the recreational ACT is set at 614 mt.
The recreational fishery allocation for Atlantic mackerel is 683 mt (6.2 percent of the U.S ABC). The recreational ACT of 614 mt (90 percent of 683 mt) accounts for uncertainty in recreational catch and discard estimates. The recreational ACT is equal to the Recreational Harvest Limit (RHL), which is the effective cap on recreational catch.
The commercial fishery allocation for Atlantic mackerel is 10,327 mt (93.8 percent of the U.S. ABC, the portion of the ACL that was not allocated to the recreational fishery). The commercial ACT of 9,294 mt (90 percent of 10,327 mt) compensates for management uncertainty in estimated Canadian landings, uncertainty in discard estimates, and possible misreporting of Atlantic mackerel catch. The commercial ACT is further reduced by a discard rate of 1.26 percent to arrive at the DAH of 9,177 mt. The DAH is the effective cap on commercial catch.
Additionally, this action maintains JVP at zero (the most recent allocation was 5,000 mt of JVP in 2004). In the past, JVP was set greater than zero because U.S. processors lacked the ability to process the total amount of Atlantic mackerel that U.S. harvesters could land. However, for the past 10 years, the Council has recommended zero JVP because U.S. shoreside processing capacity for Atlantic mackerel has expanded. The Council concluded that processing capacity was no longer a limiting factor relative to domestic production of Atlantic mackerel.
The Magnuson-Stevens Act provides that the specification of TALFF, if any, shall be the portion of the optimum yield (OY) of a fishery that will not be harvested by U.S. vessels. TALFF would allow foreign vessels to harvest U.S fish and sell their product on the world market, in direct competition with U.S. industry efforts to expand exports. While a surplus existed between ABC and the Atlantic mackerel fleet's harvesting capacity for many years, that surplus has disappeared due to downward adjustment of the specifications in recent years. Based on analysis of the global mackerel market and possible increases in U.S. production levels, the Council concluded that specifying a DAH/DAP that would result in zero TALFF would yield positive social and economic benefits to both U.S. harvesters and processors, and to the Nation. For these reasons, consistent with the Council's recommendation, the DAH is set at a level that can be fully harvested by the domestic fleet, thereby precluding the specification of a TALFF, in order to support the U.S. mackerel industry. NMFS concurs that it is reasonable to assume that in 2016 through 2018 the commercial fishery has the ability to harvest 9,177 mt of Atlantic mackerel.
In order to limit river herring and shad catch, Amendment 14 to the FMP (February 24, 2014; 79 FR 10029) allows the Council to set a river herring and shad cap through annual specifications. For 2015, we implemented a cap that was set at 89 mt initially, but if Atlantic mackerel landings surpassed 10,000 mt before closure of the directed fishery, then the cap would increase to 155 mt. The 89-mt cap represents the median annual river herring and shad catch by all vessels landing over 20,000 lb (9.08 mt) of Atlantic mackerel per trip from 2005-2012. These were the years when the fishery caught about 13,000 mt of Atlantic mackerel. The 155-mt cap was based on the median river herring and shad catch by all vessels landing over 20,000 lb (9.08 mt) of Atlantic mackerel per trip from 2005-2012, adjusted to the 2015 DAH (20,872 mt). This two-tier system was implemented to encourage the fishery to avoid river herring and shad regardless of the rate of Atlantic mackerel catches.
For 2016-2018, the cap is set at 82 mt. For 2016-2018, the Atlantic mackerel DAH is 9,177 mt, which is 8.23 percent less than the river herring and shad catch cap increase trigger set in 2015 (10,000 mt). The river herring and shad cap was reduced by the same proportion as the catch cap increase trigger, resulting in a cap of 82 mt (8.23 percent less than 89 mt). Once the Atlantic mackerel fishery catches 95 percent of the river herring and shad cap, we will close the directed Atlantic mackerel fishery and implement a 20,000-lb (9.08-mt) Atlantic mackerel incidental catch trip limit for the remainder of the year.
This action will increase the possession limit for vessels fishing with mesh smaller than 3 inches (7.62 cm) from 2,500 lb (1.13 mt) to 5,000 lb (2.27 mt). The 3-inch (7.62-cm) mesh requirement is designed to allow escapement of juvenile butterfish during directed butterfish fishing. Vessels holding a longfin squid and butterfish moratorium permit and fishing with nets that have a mesh size smaller than 3 inches (7.62 cm) will now be allowed to retain up to 5,000 lb (2.27 mt) of butterfish.
This action also amends the regulations to clearly state that 5-inch (12.7-cm) square or diamond, or greater, mesh net strengtheners may be used outside the 3-inch (7.62-cm) mesh to avoid breaking nets during large hauls.
This action will indefinitely suspend the longfin squid PTNS requirement for vessels with longfin squid and butterfish moratorium permits that want to retain more than 2,500 lb (1.13 mt) of longfin squid. This requirement was implemented via Amendment 10 to the FMP (75 FR 11441; March 11, 2010) to
NMFS received five comments in response to the proposed rule for this action. Two were from industry groups, the Garden State Seafood Association (GSSA), a New Jersey fishing industry advocacy group, and Seafreeze, a Rhode Island fishing company and seafood dealer. One comment was from the Herring Alliance, an environmental group. Two comments were from individuals.
This final rule contains a change that will clarify that only vessels intending to land more than 2,500 lb (1.13 mt) of longfin squid are required to declare into the fishery via VMS at 50 CFR§ 648.10. The fishery is already operating this way; this rule is simply clarifying the existing regulatory text.
This final rule also contains changes to the wording and format of the regulatory text of the proposed rule for the measures included in this action to reorganize paragraphs (3) through (6) in 50 CFR 648.23, and to make conforming and clarifying edits and format changes to 50 CFR 648.23. These changes are intended to clarify the purpose of these measures and promote compliance, and do not change the effect of the regulatory text as included in the proposed rule.
Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator (AA) has determined that this final rule is consistent with the Atlantic Mackerel, Squid, and Butterfish FMP, other provisions of the Magnuson-Stevens Act, and other applicable law.
The Council prepared an EA for the 2016-2018 specifications and management measures, and the AA concluded that there will be no significant impact on the human environment as a result of this rule. A copy of the EA is available upon request (see
This final rule is authorized by 50 CFR part 648 and has been determined to be not significant for purposes of Executive Order 12866.
The AA finds good cause under 5 U.S.C. 553(d)(3) to waive the 30-day delay of effectiveness period for part of this rule (revising 50 CFR 648.11(n)(1) on pre-trip notification for observer coverage), to alleviate unnecessary burden to the public. This aspect of the final rule indefinitely suspends the requirement that longfin squid and butterfish moratorium permit-holders must use the PTNS before making trips that can land more than 2,500 lb of longfin squid. New observer selection protocols through the SBRM have made the PTNS unnecessary and potentially counterproductive. If a 30-day delay in effectiveness is not waived in order to make the suspension of the PTNS requirement effective as soon as possible, the public will be further burdened by this unnecessary requirement. For these reasons, the AA is waiving the 30-day delay in effectiveness under 5 U.S.C. 553(d)(3).
This rule is being issued at the earliest possible date. Preparation of the proposed rule was dependent on the submission of the EA/IRFA in support of the specifications and management measures developed by the Council. NMFS received a complete document in December 2015. Documentation in support of the Council's recommended specifications and management measures are required for NMFS to provide the public with information from the environmental and economic analyses as required by the National Environmental Protection Act and the Regulatory Flexibility Act. The proposed rule was published on January 22, 2016, with a comment period ending on February 22, 2016.
This action contains collection-of-information requirements subject to the paperwork Reduction Act (PRA) and which has been approved by OMB under control number 0648-0679. This action indefinitely suspends the PTNS requirement for limited access longfin squid vessels. The removal of this information collection is intended to resolve logistical problems and conflicts with the SBRM observer selection protocols. The burden estimates for these new requirements apply to all limited access longfin squid vessels. Time and cost burdens that were previously approved through Amendment 10 and OMB Control Number 0648-0679, include an estimated total time burden of 256 hours, no additional cost to the public, and total cost to the government of $25,943. In a given fishing year, NMFS estimates that the removed reporting requirement included in this action will reduced time burden by 256 hours, negligibly reduce cost to the public, and reduce cost to the government by $25,943. Send comments regarding these burden estimates or any other aspect of this data collection, including suggestions for reducing the burden, to NMFS (see
Notwithstanding any other provisions of the law, no person is required 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. All currently approved NOAA collections of information may be viewed at:
Pursuant to section 604 of the Regulatory Flexibility Act, NMFS has prepared a Final Regulatory Flexibility Analysis (FRFA), summarized in the preamble of this final rule, in support of the management measures in this action. The FRFA describes the economic impact that this final rule will have on small entities, as well as the economic impacts that other, non-preferred alternatives could have on small entities.
The FRFA incorporates the economic impacts and analysis summaries from the Initial Regulatory Flexibility Analysis (IRFA), a summary of the significant issues raised by the public in response to the IRFA, and NMFS's responses to those comments. A copy of the RFA, RIR, and the EA are available upon request (see
None of the public comments raised issues related to the IRFA or the economic impact of the rule on affected entities.
Based on permit data for 2014, 370 separate vessels hold Atlantic mackerel, squid, and butterfish limited access permits, 271 entities own those vessels, and, based on current Small Business Administration (SBA) definitions, 259 of these are small entities. Of the 259 small entities, 25 had no revenue in 2014 and those entities with no revenue are considered small entities for the purpose of this analysis. All of the entities that had revenue fell into the finfish or shellfish categories, and the SBA definitions for those categories that applied in 2014 state that small entities engaged in finfish fishing have combined annual receipts not exceeding $20.5 million, and small entities engaged in shellfish fishing have combined annual receipts not exceeding $5.5 million.
The only action in this rule that involved increased restrictions applies to Atlantic mackerel limited access permits so those numbers are listed separately (they are a subset of the above entities). Based on permit data for 2014, 139 separate vessels hold Atlantic mackerel limited access permits, 105 entities own those vessels, and based on current SBA definitions, 97 were small entities. Of the 97 small entities, 3 had no revenue in 2014, and those entities with no revenue were considered small entities for the purpose of this analysis. Of the entities with revenues, their average revenues in 2014 were $1,212,230. Sixty entities had primary revenues from finfish fishing and 34 had their primary revenues from shellfish fishing.
This final rule contains collection-of-information requirements subject to the PRA that have been approved by the OMB under Control Number 0648-0679.
Under this action, all limited access longfin squid vessels intending to land more than 2,500 lb (1.13 mt) of longfin squid will no longer be required to call PTNS to request an observer. This would remove the information collection requirement, reduce logistical issues for the Northeast Fishery Observer Program, and reduce burden for industry participants. The reduction in burden estimates for these new requirements apply to all limited access longfin squid vessels. In a given fishing year, NMFS estimates that removal of this reporting requirement will reduce time burden by 256 hours, negligibly reduce cost to the public, and reduce cost to the government by $25,943 from that which was previously approved under OMB Control Number 0648-0679.
The Atlantic mackerel commercial DAH (9,177 mt) represents a reduction from status quo (2015 DAH = 20,872 mt). Despite the reduction, the proposed DAH is above recent U.S. landings; mackerel landings for 2012-2014 averaged 5,136 mt. Thus, the reduction should not have more than a minimal impact on the affected small entities compared to recent operation of the fishery (2012-2015). Even though the 2016-2018 quota is lower than 2015, it will still allow more catch compared to the catch in any year from 2012-2015.
The river herring and shad catch cap in the Atlantic mackerel fishery has the potential to prevent the fishery from achieving its full mackerel quota if the river herring and shad encounter rates are high, but it is very unlikely that this fishery would close before exceeding the levels of landings experienced since 2010, when annual landings have been less than 11,000 mt. Based on the operation of the cap in 2014 and 2015 (the first years of the cap), as long as the fishery can maintain relatively low river herring and shad catch rates, the lower cap should not negatively impact fishery participants. However, a few large river herring and shad bycatch events could potentially shut down the Atlantic mackerel fishery early. At 2014 prices ($491/mt), the Atlantic mackerel quota (9,177 mt) could potentially generate about $4.5 million. While the performance of the cap in 2014-2015 suggests that the fishery can operate with very low river herring and shad catch rates, if river herring and shad catch rates happen to be relatively high, then most of the Atlantic mackerel catch (and associated revenues) could be forgone.
The butterfish mesh requirement adjustment would allow more butterfish to be retained with small mesh gear; therefore, there should be no negative impacts on the relevant entities.
Fisheries, Fishing, Recordkeeping and reporting requirements.
For the reasons set out in the preamble, 50 CFR part 648 is amended as follows:
16 U.S.C. 1801
(o)
(n)
(ii) A vessel that has a representative provide notification to NMFS as described in paragraph (n)(1)(i) of this section may only embark on a mackerel trip without an observer if a vessel representative has been notified by NMFS that the vessel has received a waiver of the observer requirement for that trip. NMFS shall notify a vessel representative whether the vessel must carry an observer, or if a waiver has been granted, for the specific mackerel trip, within 24 hr of the vessel representative's notification of the prospective mackerel trip, as specified in paragraph (n)(1)(i) of this section. Any request to carry an observer may be waived by NMFS. A vessel that fishes with an observer waiver confirmation number that does not match the mackerel trip plan that was called in to NMFS is prohibited from fishing for, possessing, harvesting, or landing mackerel except as specified in paragraph (n)(1)(iii) of this section. Confirmation numbers for trip notification calls are only valid for 48 hr from the intended sail date.
(iii) Trip limits: A vessel issued a limited access mackerel permit, as specified in § 648.4(a)(5)(iii), that does not have a representative provide the trip notification required in paragraph (n)(1)(i) of this section is prohibited from fishing for, possessing, harvesting, or landing more than 20,000 lb (9.07 mt) of mackerel per trip at any time, and may only land mackerel once on any calendar day, which is defined as the 24-hr period beginning at 0001 hours and ending at 2400 hours.
(iv) If a vessel issued a limited access Atlantic mackerel permit, as specified in § 648.4(a)(5)(iii), intends to possess, harvest, or land more than 20,000 lb (9.07 mt) of mackerel per trip or per calendar day, and has a representative notify NMFS of an upcoming trip, is selected by NMFS to carry an observer, and then cancels that trip, the representative is required to provide notice to NMFS of the vessel name, vessel permit number, contact name for coordination of observer deployment, and telephone number or email address for contact, and the intended date, time, and port of departure for the cancelled trip prior to the planned departure time. In addition, if a trip selected for observer coverage is cancelled, then that vessel is required to carry an observer, provided an observer is available, on its next trip.
(g) * * *
(2) * * *
(ii) * * *
(E) Possess more than 5,000 lb (2.27 mt) of butterfish, unless the vessel meets the minimum mesh requirements specified in § 648.23(a).
(iii) * * *
(A) Fish with or possess nets or netting that do not meet the gear requirements for Atlantic mackerel, longfin squid,
(C) Enter or fish in the mackerel, squid, and butterfish bottom trawling restricted areas, as described in § 648.23(a)(6).
(iv)
(a)
(1)
(2)
(ii)
(3)
(i) Splitting straps, and/or bull ropes or wire around the entire circumference of the codend provided these materials
(ii) Net strengtheners (covers) that do not have a mesh opening of less than 5 inches (12.7 cm) diamond or square mesh, as measured by methods specified in § 648.80(f); and
(iii) A liner may be used to close the opening created by the rings in the aftermost portion of the net, provided the liner extends no more than 10 meshes forward of the aftermost portion of the net, the inside webbing of the codend shall be the same circumference or less than any strengthener and the liner is no more than 2 ft (61 cm) longer than any net strengthener.
(4)
(5)
(6)
(ii)
(b) * * *
(2) During a closure of the directed fishery for longfin squid for Trimester II, a vessel with a longfin squid/butterfish moratorium permit that is on a directed
(d) * * *
(2) A vessel issued longfin squid/butterfish moratorium permit fishing with mesh less than 3 inches (76 mm) may not fish for, possess, or land more than 5,000 lb (2.27 mt) of butterfish per trip at any time, and may only land butterfish once on any calendar day, provided that butterfish harvest has not reached the DAH limit and the reduced possession limit has not been implemented, as described in § 648.24(c)(1). When butterfish harvest is projected to reach the DAH limit (as described in § 648.24(c)(1)), these vessels may not fish for, possess, or land more than 600 lb (0.27 mt) of butterfish per trip at any time, and may only land butterfish once on any calendar day.
(a) * * *
(4) * * *
(iv) * * *
(B) * * *
(
(g) * * *
(5) * * *
(i)
(a) * * *
(5) * * *
(i) * * *
(D) * * *
(
(
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final rule.
NMFS issues a rule that modifies regulations governing the Crab Rationalization (CR) Program. This final rule is comprised of three actions. Under the first action, this final rule modifies regulations to create an exemption for participants in the Western Aleutian Islands golden king crab (WAG) fishery from the prohibition against resuming fishing before all CR Program crab have been fully offloaded from a vessel. The first action is intended to allow participants in the WAG fishery to offload live crab to remote ports near the fishing grounds to supply live crab markets. Under the second action, this final rule amends CR Program regulations to clarify current document submission requirements for persons applying to receive captain and crew crab quota share, called C shares, by transfer. Under the third action, this final rule amends License Limitation Program (LLP) regulations to remove the requirement for endorsements on crab LLP licenses for specific crab fisheries in the Bering Sea and Aleutian Islands (BSAI) that are no longer managed under the LLP. This final rule is intended to promote the goals and objectives of the Magnuson-Stevens Fishery Conservation and Management Act, the Fishery Management Plan for Bering Sea/Aleutian Islands King and Tanner Crabs (Crab FMP), and other applicable laws.
Effective April 26, 2016.
Electronic copies of the Regulatory Impact Review/Initial Regulatory Flexibility Analysis (RIR/IRFA), the final Regulatory Impact Review (RIR), and the Categorical Exclusion prepared for this action are available from
Written comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this rule may be submitted by mail to NMFS Alaska Region, P.O. Box 21668, Juneau, AK 99802-1668, Attn: Ellen Sebastian, Records Officer; in person at NMFS Alaska Region, 709 West 9th Street, Room 420A, Juneau, AK; by email to
Keeley Kent, 907-586-7228.
NMFS published a proposed rule to modify regulations governing the Crab Rationalization (CR) Program on February 23, 2016 (81 FR 8886). The comment period on the proposed rule ended on March 24, 2016. NMFS received four comment letters on the proposed rule that contained nine unique comments.
This section includes a brief description of the CR Program and the CR Program regulations that would be modified by this final rule. Additional background information and detail is provided in the proposed rule and in the final rule to implement the CR Program (70 FR 10174, March 2, 2005).
The CR Program is a catch share program for nine BSAI crab fisheries that allocates those resources among harvesters, processors, and coastal communities. Under the CR Program, NMFS originally issued QS to eligible harvesters as determined by eligibility criteria and participation in the CR Program fisheries during qualifying years. A harvester's allocation of QS for a fishery was based on the landings made by his or her vessel in that fishery. Specifically, each allocation was the harvester's average annual portion of the total qualified catch in a crab fishery during a specific qualifying period. NMFS issued four types of QS: Catcher vessel owner (CVO) QS was assigned to holders of LLP licenses who delivered their catch onshore or to stationary floating crab processors; catcher/processor vessel owner (CPO) QS was assigned to LLP holders that harvested and processed their catch at sea; captains and crew onboard catcher/processor vessels were issued catcher/processor crew (CPC) QS; and captains and crew onboard catcher vessels were issued catcher vessel crew (CVC) QS. CVC and CPC QS are also known as “crew shares” or “C shares.” Each year, a person who holds QS may receive individual fishing quota (IFQ), which is an exclusive harvest privilege for a portion of the annual total allowable catch (TAC). Under the CR Program, QS holders can form cooperatives to pool the harvest of the IFQ on fewer vessels to minimize operational costs and to provide additional flexibility in harvesting operations.
NMFS also issued processor quota share (PQS) under the CR Program. Each year, PQS yields an exclusive privilege to receive (for processing) a portion of the IFQ in each of the nine CR Program crab fisheries. This annual exclusive processing privilege is called individual processing quota (IPQ). A specified portion of IFQ derived from CVO QS must be matched and delivered to a processor with IPQ.
This final rule includes three actions: The first action creates an exemption for the WAG fishery from the CR Program prohibition against a vessel resuming fishing before the vessel has offloaded all CR Program crab from the vessel; the second action amends the CR Program regulations to clarify document submission requirements for individuals submitting an application to receive C shares by transfer; and the third action amends LLP regulations to remove BSAI crab species that are no longer managed under the LLP.
This section provides a brief description of the WAG fishery. For a more detailed description, please see Section 3.5 of the final RIR (see
The WAG fishery is a relatively small but lengthy fishery prosecuted in extremely remote waters in the western Aleutian Islands. Historically, the community of Adak, Alaska, has been an active processing port for the WAG fishery. The WAG fishery has a relatively small annual total allowable catch compared to other BSAI crab fisheries, such as the Bristol Bay red king crab or snow crab fisheries. The total allowable catch for the 2015/2016 crab fishing year in the WAG fishery is 2.98 million pounds. The average total tank capacity of the catcher vessels that participate in the WAG fishery is between 120,000 and 150,000 pounds (see Section 3.5.3 of the final RIR). The WAG quota share (QS) holders have formed a harvest cooperative to ensure the efficient harvest of this remote fishery. In recent years the fleet has included two to three catcher vessels and a single catcher/processor. Section 3.5.1 of the final RIR provides additional detail on historical and recent participation in the WAG fishery.
Prior to this final rule, the CR Program regulations prohibited a vessel from resuming fishing for CR Program crab or taking CR Program crab on board a vessel once a landing (offload) had commenced and until all CR Program crab were offloaded (see § 680.7(b)(3)). Under this regulation, a catcher vessel could offload portions of CR Program crab at multiple processors, but the vessel was prohibited from fishing for CR Program crab between these offloads.
NMFS implemented the prohibition against resuming fishing after a CR Program landing had commenced (hereafter called the full offload requirement) to facilitate enforcement of CR Program requirements for catch monitoring and full catch accounting. NMFS intended that this prohibition would prevent persons from, for example, discarding deadloss CR crab at sea prior to debiting this crab from the QS holder's IFQ account and subsequently high grading with CR crab harvested after the partial offload. The prohibition was intended to ensure that all fishery removals are monitored and reported in the CR Program catch accounting system. NMFS and ADF&G estimate total fishery removals through monitoring measures that include collection of data on landed catch weight and crab species composition, bycatch, and deadloss. See the final rule to implement the CR Program for a description of the monitoring and catch accounting provisions in the BSAI crab fisheries (70 FR 10174, March 2, 2005).
The proposed rule and Section 3.6.2 of the final RIR describe that under the Crab FMP, the Alaska Department of Fish and Game (ADF&G) has implemented specific monitoring requirements in the WAG fishery. ADF&G requires catcher/processors in the WAG fishery to carry an observer on board the vessel for 100 percent of the vessel's trips. Catcher vessels in the WAG fishery are required to carry an observer on board for the harvest of at least 50 percent of their total harvest weight for each 3-month period of the overall 9-month season. The portion of actual observed harvest for catcher vessels in the WAG fishery has ranged from 57 percent to 70 percent annually. Vessel operators in the BSAI crab fisheries must complete a daily fishing log, which is issued by NMFS. Data from the daily fishing log are used, along with observer data, to verify landings and to ensure accurate accounting for all fishery removals.
The proposed rule preamble provides a description of the need for this final rule, which is briefly summarized here. In 2014, the processing facility in Adak began taking deliveries of WAG from catcher vessels to supply the live crab market. The crab are offloaded from the vessel and held at the processing facility until packed for transport on a commercial airline flight from Adak for delivery to domestic and international markets. The amount of crab offloaded at Adak and delivered to the live market is limited by the amount of aircraft hold space that is available to ship crab on bi-weekly flights from Adak. Aircraft capacity is approximately 8,000 to 14,000 pounds of crab per flight, depending on the type of aircraft. Vessels operating in the WAG fishery make crab deliveries opportunistically to the processing facility when live markets are available. Harvesters receive a higher price per pound for the live market than for crab delivered and processed to supply the traditional market for cooked and frozen crab sections (see Sections 3.5.4 and 3.5.5.1 of the final RIR for more information about deliveries to the live crab market from Adak).
The processing facility in Adak is currently able to receive only limited amounts of deliveries of crab for the live market, approximately 400,000 pounds for the 2015/2016 crab fishing year. As described in the proposed rule and Section 3.5.5 of the final RIR, the processing facility in Adak has encountered a number of operational challenges since it was established in 1999 and is not currently able to receive and process a full offload of crab, which can be up to 150,000 pounds in the WAG fishery. To comply with the full offload requirement, catcher vessels delivering crab for the live market were required to make partial landings at the Adak processing facility and transit several hundred miles from the fishing grounds to Dutch Harbor or Akutan to deliver the remaining crab on board the vessel to a processor that can accept a larger vessel load of crab from the vessels.
In February 2015, the Council received requests from representatives for WAG fishery participants and representatives of the community of Adak to exempt the WAG fishery from the CR Program prohibition against a person resuming fishing before all crab have been offloaded from a vessel. The Council recommended a regulatory amendment to exempt participants in the WAG fishery from the prohibition at § 680.7(b)(3) against a person resuming fishing before all CR Program crab have been offloaded from the vessel. The Council recommended this regulatory amendment to reduce inefficiencies and costs associated with requiring crab harvesting vessels to travel significant distances to land a partial load of WAG. This rule allows vessels harvesting WAG to make partial landings for delivery to the live market and continue harvesting crab before fully offloading at a processor that can receive a larger vessel load of crab.
Action 1 creates an exemption for the WAG fishery from the prohibition at § 680.7(b)(3) that precludes a person from resuming fishing before all crab has been offloaded from a vessel. This rule will not alter current landing, reporting, and enforcement requirements in CR Program regulations.
This rule relieves a restriction on fishing activity in the WAG fishery and could increase operational efficiencies and revenues for participants in the WAG fishery. The Council determined that this rule is necessary for the WAG fishery due to the remote and economically challenging characteristics of the fishery as well as the benefits to harvesters, processors located in the western Aleutians, and any communities that develop a live market opportunity.
The proposed rule and Sections 3.7.1 and 3.7.2 of the final RIR describe how this rule will support the WAG fishery harvesters, processors, and communities that seek to diversify into the live crab market. The vessels currently participating in the WAG fishery could receive additional WAG fishery revenues due to the increased price they receive for crab in the live market. In addition, these WAG fishery harvesters could potentially reduce operating costs and increase efficiency by making small offloads of WAG crab to the western Aleutian Islands and resuming fishing to harvest a full vessel load of crab before transiting to offload the crab at a processor that can process all of the vessel's crab. This may result in reduced fuel costs and time spent returning to the fishing grounds.
The Council determined, and NMFS agrees, that this rule is not likely to have negative impacts on the management of the WAG fishery or on the catch monitoring and accounting requirements established by the CR Program. The Council considered the impacts of this rule on Federal management of the WAG fishery.
The proposed rule and Section 3.7.5 of the final RIR describe the impacts of this rule on the State of Alaska (State) management of the WAG fishery. The Crab FMP establishes a State/Federal cooperative management regime that defers crab management to the State with Federal oversight. State regulations are subject to the provisions of the Crab FMP, including its goals and objectives, the Magnuson-Stevens Act national standards, and other applicable Federal laws. NMFS expects that ADF&G will make minor modifications to its sampling and observer coverage protocols for WAG fishery vessels that deliver crab to Adak for supply to the live market. NMFS anticipates that ADF&G will continue to coordinate with vessels in the WAG fishery to ensure that accurate biological data and catch accounting needs are met with minimal impacts on State management of the WAG fishery consistent with requirements of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), the Crab FMP, and ADF&G regulations.
Action 2 corrects regulations governing the approval criteria for an application to receive C shares by transfer. Under the CR Program, individuals must meet specific eligibility requirements to receive C shares by transfer. Amendment 31 to the Crab FMP modified several regulations governing the acquisition, use, and retention of C shares under the CR Program (80 FR 15891, March 26, 2015).
The eligibility requirements to receive C shares by transfer are located at § 680.41(c)(1)(vii). An applicant must meet initial eligibility criteria, which include having U.S. citizenship, at least 150 days of sea time in a U.S. commercial fishery, and recent participation as crew in at least one delivery of crab in the past year. In addition, § 680.41(c)(1)(vii) specifies that until May 1, 2019, in lieu of participation as crew in one of the CR Program fisheries in the 365 days prior to application submission, an individual may meet the crew participation requirement to receive C shares by transfer if that person (1) received an initial allocation of C shares (CVC or CPC QS), or (2) participated as crew in at least one delivery of crab in a CR Program crab fishery in any 3 of the 5 crab fishing years starting on July 1, 2000, through June 30, 2005.
The approval criteria for NMFS to approve an application to receive C shares by transfer are located at § 680.41(i). The regulations state that NMFS will not approve a transfer application unless it has determined that the applicant has met all approval criteria.
The regulations implementing the CR Program in 2005 included approval criteria for an individual to demonstrate to NMFS that he or she meets the eligibility requirements at § 680.41(c)(1)(vii) at the time of transfer. These approval criteria were inadvertently removed by amendatory language in the final rule that implemented regulations to provide harvesting cooperatives, crab processing quota shareholders, and Western Alaska Community Development Quota groups with the option to make web-based transfers (74 FR 51515, October 7, 2009). These approval criteria clarify for applicants that they must meet the eligibility requirements at § 680.41(c)(1)(vii) at the time of transfer, specifically that they must meet the recent participation requirements within the prior 365 days for their application for transfer to be approved. This final rule adds these approval criteria at § 680.41(i)(11) to ensure that the regulations are consistent with the original intent of the CR Program.
This final rule also adds regulations specifying that acceptable evidence for demonstrating required participation criteria specified at § 680.41(c)(1)(vii) is limited to an ADF&G fish ticket signed by the applicant or an affidavit from the vessel owner attesting to the applicant's fishery participation.
Action 3 amends LLP regulations for consistency with the Crab FMP to avoid public confusion about the regulatory requirements that apply to certain crab stocks. This rule modifies the LLP regulations at § 679.4(k)(1)(ii) to remove the following five crab species: Aleutian Islands
The preamble to the proposed rule provided a description of the LLP for crab stocks and Amendment 24 to the Crab FMP. In summary, the LLP limits the number, size, and specific operation of vessels deployed in BSAI crab fisheries managed under the Crab FMP and established several area/species endorsements for crab LLP licenses.
The CR Program removed BSAI crab fisheries that are managed under the CR Program from the LLP. The fisheries not included in the CR Program remained under the Crab FMP and under the governance of the LLP. Fishermen participating in those fisheries are required to have a crab LLP license with the appropriate area/species endorsement on the vessel. Although the Crab FMP establishes a State/Federal cooperative management regime that delegates crab management to the State with Federal oversight, NMFS manages Crab FMP stocks subject to LLP requirements.
Amendment 24 to the Crab FMP was approved in 2008. Amendment 24 removed 12 BSAI crab stocks not in the CR Program from the Crab FMP and deferred management to the State for these fisheries (73 FR 33925, June 16, 2008). Upon removal of these species from the Crab FMP, NMFS no longer had authority to manage the following species under the LLP program: Aleutian Islands
Amendment 24 to the Crab FMP did not require implementing regulations. As a result, Aleutian Islands
As described in the preamble to the proposed rule, NMFS will modify and reissue some crab LLP licenses to implement this final rule. Prior to this final rule, the LLP regulations specified that crab LLP licenses may have up to four area/species endorsements:
• Aleutian Islands
• Eastern Aleutian Islands red king crab;
• Bering Sea Minor Species (includes Bering Sea golden king crab, scarlet or deep sea king crab, grooved Tanner crab, and triangle Tanner crab); and
• Norton Sound red and blue king crab.
To implement this final rule, NMFS will modify LLP licenses to remove the Aleutian Islands
To implement this final rule, NMFS will modify LLP licenses to remove the Eastern Aleutian Islands red king crab endorsement from LLP licenses. Current LLP license records indicate that there are 30 LLP licenses with this endorsement.
NMFS does not need to reissue LLP licenses with a Bering Sea Minor Species endorsement to implement this final rule. Even though scarlet or deep sea king crab, grooved Tanner crab, and triangle Tanner crab fisheries are no longer subject to Federal management, the Bering Sea golden king crab fishery is still included in the Crab FMP and is subject to Federal management under the LLP. Therefore an LLP license with a Bering Sea Minor Species endorsement is still required for participation in this fishery. Because of this, NMFS does not need to remove the endorsement as a whole. The LLP regulations determine the specific area/species endorsements to which the Bering Sea Minor Species endorsement applies, so NMFS has determined that it can implement this change by amending the LLP regulations, rather than reissuing the licenses carrying this endorsement. Current LLP license records indicate that there are 287 LLP licenses with this endorsement.
Many LLP license holders hold more than one area/species endorsement on their LLP license, therefore NMFS will only need to reissue 274 LLP licenses due to the overlap in LLP license holders with the Aleutian Islands
NMFS received four comment letters from the public that contained nine unique substantive comments during the public comment period for the proposed rule to implement these three actions. NMFS' responses to these comments are presented below.
This final rule includes one change to the proposed regulatory text. This final rule modifies the regulatory text at § 679.4(k)(1)(ii) to eliminate Aleutian Islands
NMFS has determined that this change to the final rule is necessary to remove the Aleutian Islands
Pursuant to section 305(d) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this rule is consistent with the Crab FMP, other provisions of the Magnuson-Stevens Act, and other applicable law.
This final rule has been determined to be not significant for the purposes of Executive Order 12866.
The NMFS Assistant Administrator finds good cause under 5 U.S.C. 553(d)(3) to waive the 30-day delay in effectiveness for the provisions in this final rule. A delay in the effective date of this rule would unnecessarily delay regulatory revisions that would provide an exemption from the prohibition against resuming fishing before all CR Program crab have been fully offloaded from a vessel. The revised regulations will allow participants in the WAG fishery to conduct partial offloads and resume fishing before all CR Program crab have been fully offloaded. A delay in effectiveness of the revised regulations would prevent participants from conducting partial offloads and resuming fishing before the close of the 2015/2016 WAG fishing season on April 30, 2016, thus undermining the purpose of the rule.
As described in the preamble to the proposed and final rule, NMFS implemented the prohibition against resuming fishing after a CR Program landing had commenced to facilitate enforcement of CR Program requirements for catch monitoring and full catch accounting. NMFS intended that this prohibition would prevent persons from discarding deadloss CR crab at sea prior to debiting this crab from the QS holder's IFQ account and subsequently high grading with CR crab harvested after the partial offload. The prohibition was intended to ensure that all fishery removals are monitored and reported in the CR Program catch accounting system.
The Assistant Administrator has determined that this prohibition is unnecessary for the WAG fishery because participants in this fishery are unlikely to discard and subsequently high grade Western Aleutian golden king crab. First, crew harvesting Western Aleutian golden king crab only retain healthy crab of legal size and discard all dead, damaged, or diseased crab during the sorting process at the harvesting grounds. Thus, there is little incentive to discard and high grade after landing has commenced. Second, at-sea discards of unreported crab as a result of quota overages are unlikely because the CR Program cooperative structure, online quota transfers, and post-delivery quota transfers gives CR Program participants several options to obtain additional Individual Fishing Quota. Finally, fifty to seventy percent of the WAG fishery is monitored by observers. The presence of observers on board vessels reduces the likelihood of illegal discards and high grading of crab.
This final rule will increase operational efficiencies and revenues for participants in the WAG fishery. Prior to this final rule, vessels could offload portions of CR Program crab at multiple processors but were prohibited from resuming fishing or taking CR Program crab on board the vessel once a landing had commenced and until all CR crab were landed. As noted in the proposed rule and final RIR, the prohibition against resuming fishing before all crab have been offloaded from a vessel created inefficiencies and costs associated with requiring crab harvesting vessels to travel significant distances to land a partial load of WAG. Allowing vessels harvesting WAG to make partial landings for delivery to the live market and continue harvesting crab before fully offloading at a processor that can receive a larger vessel load of crab is expected to increase operational efficiencies and revenues for participants in the WAG fishery.
Waiving the 30-day delay in this final rule's effectiveness will help improve economic opportunities for the WAG fishery, which is remote and economically challenging for participants, as well as create the possibility of mutual benefits to harvesters, processors located in the western Aleutians, and any communities that develop a live market opportunity. There is no administrative need for additional time beyond the publication of this final rule. This is a noncontroversial action that positively affects a small number of fishery participants by relieving a restriction. NMFS is unaware of any participants who would not be in favor of or would be potentially harmed by waiving the 30-day delay in effectiveness. Without waiving the 30-day delay in effectiveness, WAG participants affected by this final rule would not be able to benefit from the exemption before the end of the 2015/2016 fishing season, which would delay the associated economic opportunities being sought through this final rule.
For these reasons, the NMFS Assistant Administrator finds good cause to waive the 30-day delay in effectiveness and
Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that, for each rule or group of related rules for which an agency is required to prepare a final regulatory flexibility analysis, the agency shall publish one or more guides to assist small entities in complying with the rule, and shall designate such publications as “small entity compliance guides.” The agency shall explain the actions a small entity is required to take to comply with a rule or group of rules. The preamble to the proposed rule (81 FR 8886, February 23, 2016) and the preamble to this final rule serve as the small entity compliance guide. This rule does not require any additional compliance from small entities that is not described in the preamble to the proposed rule and this final rule. Copies of the proposed rule and this final rule are available from NMFS at the following Web site:
Section 604 of the Regulatory Flexibility Act requires an agency to prepare a FRFA after being required to publish a general notice of proposed rulemaking and when an agency promulgates a final rule under section 553 of Title 5 of the U.S. Code. The following paragraphs constitute the FRFA for this action.
Section 604 describes the required contents of a FRFA: (1) A statement of the need for, and objectives of, the rule; (2) a statement of the significant issues raised by the public comments in response to the initial regulatory flexibility analysis, a statement of the assessment of the agency of such issues, and a statement of any changes made in the proposed rule as a result of such comments; (3) the response of the agency to any comments filed by the Chief Counsel for Advocacy of the Small Business Administration in response to the proposed rule, and a detailed statement of any change made to the proposed rule in the final rule as a result of the comments; (4) 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; (5) 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; and (6) a description of the steps the agency has taken to minimize the significant economic impact on small entities consistent with the stated objectives of applicable statutes, including a statement of the factual, policy, and legal reasons for selecting the alternative adopted in the final rule and why each one of the other significant alternatives to the rule considered by the agency which affect the impact on small entities was rejected.
A description of the need for, and objectives of, the rule is contained in the preamble to the proposed rule and this final rule and is not repeated here. This FRFA incorporates the IRFA and the summary of the IRFA in the proposed rule (81 FR 8886, February 23, 2016).
NMFS published a rule that proposed to modify regulations governing the CR Program on February 23, 2016 (81 FR 8886). An IRFA was prepared and summarized in the Classification section of the preamble to the proposed rule. The comment period on the proposed rule ended on March 24, 2016. NMFS received 4 letters of public comment containing nine unique substantive comments on the proposed rule. These comment letters did not address the IRFA. The comments did generally address the economic impacts of the rule by requesting that the final rule be implemented as soon as possible to allow the participants in the WAG fishery to conduct partial offloads and resume fishing prior to the close of the WAG fishery season on April 30, 2016. As explained previously, the NMFS Assistant Administrator finds good cause under 5 U.S.C. 553(d)(3) to waive the 30-day delay in effectiveness for the provisions in this final rule. The Chief Counsel for Advocacy of the Small Business Administration did not file any comments on the proposed rule.
The Small Business Administration defines a small commercial shellfish fishing entity as one that has annual gross receipts, from all activities of all affiliates, of less than $5.5 million (79 FR 33647, June 12, 2014).
Action 1 creates an exemption for the WAG fishery from the prohibition at § 680.7(b)(3) that precludes a person from resuming fishing before all crab has been offloaded from a vessel. Under Action 1, the entities directly regulated by this rule are those entities that participate in the WAG fishery: Vessel operators, QS holders, and IFQ holders. This rule does not directly affect PQS holders, IPQ holders, or communities. Three vessels were active in the 2013/2014 WAG fishery. These vessels received the majority of their revenue from shellfish from 2012 through 2014. The entities directly regulated by this rule are members of a cooperative that exceeds the $5.5 million revenue threshold for a shellfish entity and are not considered small entities (see Section 4.3 of the final RIR). The number of WAG fishery QS holders is listed in Table 3-3 in Section 3.5.2 of the final RIR. Gross revenue information is not available for these QS holders. Of the QS holders listed, at least 3 of the entities holding catcher vessel owner (CVO) QS are known to be large entities as defined by the Small Business Administration. The remaining 11 CVO QS holders and 8 CVC QS holders are assumed to be small entities.
Action 2 adds regulatory text that was inadvertently removed. The effect of Action 2 on directly regulated small entities is described in the FRFA prepared for a final rule implementing regulations to provide harvesting cooperatives, crab PQS holders, and Western Alaska Community Development Quota groups with the option to make web-based transfers (74 FR 51515, October 7, 2009) and for regulations implementing Amendment 31 to the Crab FMP (80 FR 15891, March 26, 2015).
Action 3 removes regulatory requirements for LLP licenses that are no longer applicable under the Crab FMP as described in the analysis for Amendment 24 to the Crab FMP (73 FR 33925, June 16, 2008). Action 3 will not impact directly regulated entities because no entities (small or otherwise) are currently participating in these crab fisheries, and this rule will not preclude them from doing so under the appropriate State regulations.
Action 1 will not require any modifications to the current Federal recordkeeping and reporting requirements for the CR Program. Action 2 references the collection-of-information requirement for the Application for Transfer of Crab QS or PQS (Office of Management and Budget (OMB) Control Number 0648-0514), however, this rule does not require modifications to the application and will not increase the public reporting burden associated with it. Action 3 will not require LLP license holders to take any action relative to their LLP licenses
An FRFA also requires a description of any significant alternatives to this final rule that would accomplish the stated objectives, are consistent with applicable statutes, and that would minimize any significant economic impact of this rule on small entities. Under all actions, NMFS considered two alternatives—the no action alternative and the action alternative. During the Council's initial discussion of the need for Action 1, it also considered extending the exemption from the prohibition against resuming fishing before all CR Program crab have been landed to all CR Program fisheries. However, the Council rejected this approach because it was too broad for the stated objectives, which were specific to the WAG fishery. Because Actions 2 and 3 are administratively focused and had a narrow purpose and need, there were no alternatives except the action alternative and the no action alternative that were considered.
Under Action 1, the no action alternative is not expected to minimize adverse economic impacts for the small entities directly regulated by this rule. These entities are currently required to make partial landings at the Adak processing facility and transit several hundred miles from the fishing grounds to deliver the remaining crab on board the vessel to a processor that can accept a full offload of crab from the vessels. The no action alternative results in operating inefficiencies and additional costs from requiring vessels to travel significant distances to land a partial load of WAG. The action alternative is expected to provide positive economic impacts for small entities compared to the no action alternative because it lifts a restriction on WAG fishery participants. Therefore, no directly regulated small entities are expected to be adversely impacted by this rule. The action alternative could improve operating efficiencies and increase fishery revenues for WAG fishery participants by supporting the opportunity to supply crab to the live market for a premium price compared to crab delivered to traditional markets.
Under Action 2, the no action alternative would not correct the error in regulation. The action alternative reinstates the regulation that was incorrectly removed. This rule will not change the impacts on small entities from the impacts considered in the FRFA prepared for the final rule implementing regulations to provide harvesting cooperatives, crab processing quota share holders, and Western Alaska Community Development Quota groups with the option to make web-based transfers (74 FR 51515, October 7, 2009) and for Amendment 31 to the Crab FMP. The FRFA for the web-based transfers rule described the impacts of the rule as beneficial to small entities because the rule would simplify the process for completing transfers. The FRFA for Amendment 31 described that under Amendment 31, the submission of documentation demonstrating active participation for C share QS holders was necessary to implement the active participation requirements, but was not expected to have a significant impact on small entities due to the need to submit the information only upon the request to receive C share QS by transfer.
Under Action 3, the no action alternative would retain regulations for LLP license requirements that are no longer applicable under the Crab FMP. The action alternative makes LLP license requirements consistent with the Crab FMP and reduces potential confusion for small entities. Action 3 requires the reissuance of LLP licenses to the 274 license holders with the Aleutian Islands
This rule references collection-of-information requirements subject to the Paperwork Reduction Act (PRA), which have been approved by OMB and are listed below by OMB control number.
The crab LLP is mentioned in this rule, but there will be no change in burden or cost results. NMFS will modify LLP licenses to remove the Aleutian Islands
The Application for CR Program Eligibility to Receive QS/PQS or IFQ/IPQ by Transfer and the Application for Transfer of Crab QS/PQS are mentioned in this rule, but there will be no change in burden or cost results. The fishery participation approval criteria for an individual to receive C share QS by transfer were inadvertently deleted from the regulations with a final rule published on October 7, 2009 (74 FR 51515) and will be replaced by this action.
Send comments on these or any other aspects of the collection of information, to NMFS (see
Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to penalty for failure to comply with, a collection of information subject to the requirement of the PRA, unless that collection of information displays a currently valid OMB control number. All currently approved NOAA collections of information may be viewed at:
Alaska, Fisheries, Reporting and recordkeeping requirements.
Alaska, Fisheries, Reporting and recordkeeping requirements.
For the reasons set out in the preamble, NMFS amends 50 CFR part 679 and part 680 as follows:
16 U.S.C. 773
The revisions read as follows:
(k) * * *
(1) * * *
(ii) * * *
(A) Aleutian Islands Area
(C) Minor Species endorsement for Bering Sea golden king crab (
16 U.S.C. 1862; Pub. L. 109-241; Pub. L. 109-479.
(b) * * *
(3) Resume fishing for CR crab or take CR crab on board a vessel once a landing has commenced and until all CR crab are landed, unless fishing in the Western Aleutian Islands golden king crab fishery.
(i) * * *
(11) The person applying to receive the CVC QS or IFQ or CPC QS or IFQ by transfer has submitted proof of at least one delivery of a crab species in any CR crab fishery in the 365 days prior to submission to NMFS of the Application for transfer of crab QS/IFQ or PQS/IPQ, except if eligible under the eligibility requirements in paragraph (c)(1)(vii)(B) of this section. Proof of this landing is—
(i) Signature of the applicant on an ADF&G fish ticket; or
(ii) An affidavit from the vessel owner attesting to that person's participation as a member of a fish harvesting crew on board a vessel during a landing of a crab QS species within the 365 days prior to submission of an Application for transfer of crab QS/IFQ or PQS/IPQ.
Bureau of Consumer Financial Protection.
Reopening of comment period with request for public comment.
The Bureau of Consumer Financial Protection (Bureau) is reopening the comment period for a specific aspect of the proposed rule published by the Bureau in the
The comment period for the proposed rule published on December 15, 2014 (79 FR 74176) is reopened. Comments must be received on or before May 26, 2016.
You may submit comments, identified by Docket No. CFPB-2016-0016 or RIN 3170-AA49, by any of the following methods:
•
•
•
•
All comments, including attachments and other supporting materials, will become part of the public record and subject to public disclosure. Sensitive personal information, such as account numbers or Social Security numbers, should not be included. Comments will not be edited to remove any identifying or contact information.
Dania L. Ayoubi or David H. Hixson, Counsels, or Laura A. Johnson, Senior Counsel; Office of Regulations, at 202-435-7700.
In January 2013, the Bureau issued several final rules concerning mortgage markets in the United States (2013 Title XIV Final Rules), pursuant to the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act), Public Law 111-203, 124 Stat. 1376 (2010).
The Bureau clarified and revised those rules through notice and comment rulemaking during the summer and fall of 2013 in the (1) Amendments to the 2013 Mortgage Rules under the Real Estate Settlement Procedures Act (Regulation X) and the Truth in Lending Act (Regulation Z) (July 2013 Mortgage Final Rule)
On December 15, 2014, the Bureau published for notice and comment a proposed rule amending Regulation X and Regulation Z.
The comment period for the proposed rule closed on March 16, 2015. In response to the proposed rule, the Bureau received over 100 comment letters during the comment period from numerous commenters, including servicers, consumer groups, trade associations, other government entities, and individual consumers. In particular, the Bureau received a number of comments addressing the merits of the proposed provisions on the bankruptcy period statements. After the close of the comment period, interested parties submitted to the Bureau additional oral ex parte presentations and written ex parte comments on the proposed rule.
Following publication of the proposed rule, the Bureau engaged Fors Marsh Group (FMG), a research and consulting firm that specializes in designing disclosures and consumer testing, to conduct one-on-one cognitive interviews of consumers to test the Bureau's proposed sample periodic statement forms for consumers who have filed for bankruptcy, with content varying depending on whether the consumer is a debtor in a Chapter 7 or Chapter 11 bankruptcy case, or in a Chapter 12 or Chapter 13 bankruptcy case, respectively. As described in detail in the report summarizing the testing,
During the interviews, participants were shown sample modified periodic statements. In general, participants who had filed for Chapter 7 bankruptcy reviewed the statements tailored to borrowers who are debtors in a Chapter 7 or Chapter 11 bankruptcy case, while participants who had filed for Chapter 13 bankruptcy reviewed the statements tailored to borrowers who are debtors in a Chapter 12 or Chapter 13 bankruptcy case. Participants were asked specific questions to test their understanding of the information presented in the sample statements, how easily they could find various pieces of information presented in the sample statements, as well as to learn about how they would use the information presented in the sample statements. The Bureau and FMG worked closely to develop revisions to all of the forms between rounds to address any usability or comprehension issues that became apparent, as well as to respond further to public comments the Bureau received on the proposed rule.
As noted above, the Bureau indicated in its proposed rule that it would conduct consumer testing of sample periodic statement forms for consumers in bankruptcy and publish a report prior to finalizing any such sample forms. The Bureau conducted the consumer testing after the close of the original comment period and is now issuing this notice to reopen the comment period in order to publish and seek public comment specifically on the report summarizing the methods and results of the testing. The Bureau is not soliciting comment on other aspects of the proposed rule, including the merits of the proposal to require periodic statements for consumers in bankruptcy under certain circumstances. As noted above, the Bureau has already received a number of comments on the merits of the proposal, and any further such comments will be considered outside of the scope of this request for public comment. Therefore, the Bureau encourages commenters to limit their
Coast Guard, DHS.
Notice of proposed rulemaking.
The Coast Guard proposes to establish a temporary safety zone on the navigable waters of Shallowbag Bay, in Manteo, NC. This proposed safety zone would restrict vessel movement from a portion of Shallowbag Bay River during the Manteo July 4th Celebration Fireworks display. This action is necessary for the safety of life and property on the surrounding navigable waters during the fireworks display. The Coast Guard invites comments on this proposed rule.
Comments and related material must be received by the Coast Guard on or before May 11, 2016.
You may submit comments identified by docket number USCG-2016-0131 using the Federal eRulemaking Portal at
If you have questions about this proposed rulemaking, call or email LCDR Derek J. Burrill, Coast Guard Sector North Carolina, Coast Guard; telephone (910) 772-2230, email
On July 4, 2016 fireworks will be launched from a barge located in Shallowbag Bay in Manteo, North Carolina as part of the Manteo July 4th Celebration. The Captain of the Port North Carolina (COTP) proposes to establish a temporary safety zone on specified waters of Shallowbag Bay within a 200 yard radius of a barge anchor. This safety zone would be effective and enforced from 9:00 p.m. to 10:30 p.m. on July 4, 2016 with a rain date of July 5, 2016. Access to the safety zone would be restricted during the specified date and time.
The purpose of this temporary safety zone is to ensure the safety of vessels and spectators from hazards associated with the fireworks display, such as accidental discharge of fireworks, dangerous projectiles, and falling hot embers or other debris.
The legal basis for the rule is the Coast Guard's authority to establish safety zones: 33 U.S.C. 1231; 46 U.S.C. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, 160.5; Public Law 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.
The COTP proposes to establish a safety zone from 9:00 p.m. to 10:30 p.m. on July 4, 2016 with a rain date being July 5, 2016. The safety zone would cover all navigable waters within 200 yards of barge anchor. The duration of the zone is intended to ensure the safety of vessels and these navigable waters before, during, and after the scheduled 9:30 to 10:00 p.m. fireworks display. All persons and vessels would need to comply with the instructions of the COTP or his designated representative. Except for vessels authorized by the COTP or his designated representative, no person or vessel would be allowed to enter or remain in the safety zone. Notification of the temporary safety zone would be provided to the public via marine information broadcasts.
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.
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 Shallowbag Bay, Manteo, North Carolina for less than 1 hour. 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.
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
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
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).
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
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.
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 2 hours that would prohibit entry within 200 yards of a fireworks barge. 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.
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
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
We accept anonymous comments. All comments received will be posted without change to
Documents mentioned in this NPRM as being available in the docket, and all public comments, will be in our online docket at
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, and Waterways.
For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 165 as follows:
33 U.S.C. 1231; 46 U.S.C. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.
(a) Definitions. For the purposes of this section, “Captain of the Port” means the Commander, Sector North Carolina. “Representative” means any Coast Guard commissioned, warrant, or petty officer who has been authorized to act on the behalf of the Captain of the Port.
(b) Location. The following area is a safety zone: All waters on Shallowbag Bay within a 200 yard radius of a barge anchor in position 35°54′31″ N., longitude 075°39′46″ W. (NAD 1983).
(c) Regulations. (1) The general regulations contained in § 165.23 of this part apply to the area described in paragraph (b) of this section.
(2) Persons or vessels requesting entry into or passage through any portion of the safety zone must first request authorization from the Captain of the Port, or a designated representative. The Captain of the Port or his designated representative can be contacted at telephone number (910) 343-3882 or by radio on VHF Marine Band Radio, channels 13 and 16.
(d) Enforcement. The U.S. Coast Guard may be assisted in the patrol and enforcement of the zone by Federal, State, and local agencies.
(e) Enforcement period. This section will be enforced from 9:00 p.m. to 10:30 p.m. on July 4, 2016 or a rain date of July 5, 2016 unless cancelled earlier by the Captain of the Port.
Copyright Royalty Board, Library of Congress.
Proposed rule.
The Copyright Royalty Judges (Judges) publish for comment proposed regulations governing royalty rates and terms for the distant retransmission of over-the-air television and radio broadcast stations by cable television systems to their subscribers.
Comments are due no later than May 17, 2016.
Submit electronic comments via email to
Kimberly Whittle, Attorney Advisor, by telephone at (202) 707-7658, or by email at
On January 15, 2016, the Copyright Royalty Judges (Judges) received a motion from the National Cable & Telecommunications Association, the American Cable Association, and a group referring to itself as the “Phase I Parties” requesting that the Judges adopt a partial settlement of the movants' interests regarding royalty rates and terms for the statutory copyright license for eligible cable retransmissions for the period 2015-2019. The settlement proposes that the rates, terms, and gross receipts limitations remain the same as those currently in effect.
Section 111 of the Copyright Act grants a statutory copyright license to cable television systems for the distant retransmission of over-the-air television and radio broadcast stations to their subscribers. 17 U.S.C. 111(c). In exchange for the license, cable operators submit to the Copyright Office semiannually royalty payments and statements of account detailing their retransmissions. 17 U.S.C. 111(d)(1). The Copyright Office deposits the royalties into the United States Treasury for later distribution to copyright owners of the broadcast programming that the cable systems retransmit. 17 U.S.C. 111(d)(2).
A cable system calculates its royalty payments in accordance with the statutory formula described in 17 U.S.C. 111(d)(1). Royalty rates are based upon a cable system's gross receipts from subscribers who receive retransmitted broadcast signals. For rate calculation purposes, cable systems are divided into three tiers based on their gross receipts (small, medium, and large). 17 U.S.C. 111(d)(1)(B) through (F). Both the applicable rates and the tiers are subject to adjustment. 17 U.S.C. 801(b)(2).
Every five years persons with a significant interest in the royalty rates may file petitions to initiate a proceeding to adjust the rates. 17 U.S.C. 804(a) and (b). No person with a significant interest filed a petition to initiate a proceeding in 2015.
The Judges received two joint Petitions to Participate, one from the National Cable & Telecommunications Association and the American Cable Association and another from a group referring to itself as the “Phase I Parties”.
On December 15, 2015, at the conclusion of the VNP, all participants notified the Judges that they had settled and asked that cable retransmission rates remain unchanged for the rate period 2015 to 2019, inclusive. On November 23, 2015, however, one of the participants, the Joint Sports Claimants (JSC),
The settling participants have now asked that the Judges adopt the settlement and permit continuing proceedings to determine whether and to what degree to make a rate adjustment under section 801(b)(2)(C). Motion at 1, 6-7. Section 801(b)(2)(C) provides for adjustment proceedings
The Participating Parties state that they do not believe that the JSC Sports Rule Petition precludes adoption of their agreement as set forth in the Dec. 15 Settlement Notice. That agreement concerns only the Quinquennial Cable Rate Adjustments. It resolves all issues concerning those quinquennial adjustments by agreeing to retain without change the
Section 801(b)(7)(A) allows for the adoption of rates and terms negotiated by “some or all of the participants in a proceeding at any time during the proceeding” provided the parties submit the negotiated rates and terms to the Judges for approval. That provision directs the Judges to provide those who would be bound by the negotiated rates and terms an opportunity to comment on the agreement. Unless a participant in a proceeding objects and the Judges conclude that the agreement does not provide a reasonable basis for setting statutory rates or terms, the Judges adopt the negotiated rates and terms. 17 U.S.C. 801(b)(7)(A).
If the Judges adopt the proposed rates and terms pursuant to this provision for the 2015-2019 rate period, the adopted (and thus, existing) rates and terms and gross receipts limitations will continue to be binding on all cable systems that retransmit distantly over-the-air television and radio broadcast stations to their subscribers and on all copyright owners of the broadcast programming that the cable systems retransmit during the license period 2015-2019, except to the extent those rates and terms may be adjusted for sports programming in the portion of the proceeding focused on the effect, if any, of the FCC Sports Exclusivity Rule change.
If the Judges adopt the proposed rules that include the terms of the settlement, these rules shall take effect upon final adoption. The Judges have statutory authority to promulgate their own rules which, when adopted, shall render inapplicable the prior rules that pertained to the rates and terms as established by the now defunct CARP, in part 256 of the existing regulation (37 CFR, part 256).
The Judges will update the terms, eliminate surplus verbiage, make the rules easier to read, and codify them in Chapter 3 of Title 37 of the CFR. Chapter 3 is the chapter that governs Copyright Royalty Board proceedings. If adopted, the proposed rules shall be designated “part 387.”
Interested parties may comment and object to any or all of the proposed regulations contained in this notice. Such comments and objections must be submitted no later than May 17, 2016.
Interested members of the public must submit comments to only one of the following addresses. If not commenting by email or online, commenters must submit an original of their comments, five paper copies, and an electronic version on a CD.
Copyright, Cable Television, Royalties.
For the reasons set forth in the preamble, and under the authority of chapter 8, title 17, United States Code, the Copyright Royalty Judges propose to amend 37 CFR Chapter III as follows:
Add a new Part 387.
17 U.S.C. 801(b)(2), 803(b)(6).
This part establishes adjusted terms and rates for royalty payments in accordance with the provisions of 17 U.S.C. 111 and 801(b)(2)(A), (B), (C), and (D). Upon compliance with 17 U.S.C. 111 and the terms and rates of this part, a cable system entity may engage in the activities set forth in 17 U.S.C. 111.
(a) Royalty fee rates. Commencing with the first semiannual accounting period of 2015 and for each semiannual accounting period thereafter, the royalty fee rates for secondary transmission by cable systems are those established by 17 U.S.C. 111(d)(1)(B)(i)-(iv), as amended.
(b) Alternate tiered rates. Commencing with the first semiannual accounting period of 2015 and for each semiannual accounting period thereafter, the alternate tiered royalty fee rates for cable systems with certain levels of gross receipts as described in 17 U.S.C. 111(d)(1) (E) and (F), are those described therein.
(c) 3.75 percent rate. Commencing with the first semiannual accounting period of 2015, and for each semiannual accounting period thereafter, and notwithstanding paragraphs (a) and (d) of this section, for each distant signal equivalent or fraction thereof not represented by the carriage of:
(1) Any signal that was permitted (or, in the case of cable systems commencing operations after June 24, 1981, that would have been permitted) under the rules and regulations of the Federal Communications Commission in effect on June 24, 1981, or
(2) A signal of the same type (that is, independent, network, or non-commercial educational) substituted for such permitted signal, or
(3) A signal that was carried pursuant to an individual waiver of the rules and regulations of the Federal Communications Commissioning effect on June 24, 1981; in lieu of the royalty rates specified in paragraphs (a) and (d) of this section, the royalty rate shall be 3.75 percent of the gross receipts of the cable system for each distant signal equivalent. Any fraction of a distant signal equivalent shall be computed at its fractional value.
(d) Syndicated exclusivity surcharge. Commencing with the first semiannual accounting period of 2015 and for each semiannual accounting period thereafter, in the case of a cable system
(1) For cable systems located wholly or in part within a top 50 television market,
(i) 0.599 percent of such gross receipts for the first distant signal equivalent;
(ii) 0.377 percent of such gross receipts for each of the second, third, and fourth distant signal equivalents; and
(iii) 0.178 percent of such gross receipts for the fifth distant signal equivalent and each additional distant signal equivalent thereafter;
(2) For cable systems located wholly or in part within a second 50 television market,
(i) 0.300 percent of such gross receipts for the first distant signal equivalent;
(ii) 0.189 percent of such gross receipts for each of the second, third, and fourth distant signal equivalents; and
(iii) 0.089 percent of such gross receipts for the fifth distant signal equivalent and each additional distant signal equivalent thereafter;
(3) For purposes of this section “top 50 television markets” and “second 50 television markets” shall be defined as the comparable terms are defined or interpreted in accordance with 47 CFR 76.51, as effective June 24, 1981.
(e) Computation of rates. Computation of royalty fees shall be governed by 17 U.S.C. 111(d)(1)(C).
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve elements of State Implementation Plan (SIP) revisions from the State of Utah to demonstrate the State meets infrastructure requirements of the Clean Air Act (Act or CAA) for the National Ambient Air Quality Standards (NAAQS) promulgated for ozone on March 12, 2008, lead (Pb) on October 15, 2008, nitrogen dioxide (NO
Written comments must be received on or before May 26, 2016.
Submit your comments, identified by Docket ID No. EPA-R08-OAR-2013-0561 at
Abby Fulton, Air Program, U.S. Environmental Protection Agency (EPA), Region 8, Mail Code 8P-AR, 1595 Wynkoop Street, Denver, Colorado 80202-1129, (303) 312-6563,
1.
2.
• Identify the rulemaking by docket number and other identifying information (subject heading,
• Follow directions and organize your comments;
• Explain why you agree or disagree;
• Suggest alternatives and substitute language for your requested changes;
• Describe any assumptions and provide any technical information and/or data that you used;
• If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced;
• Provide specific examples to illustrate your concerns, and suggest alternatives;
• Explain your views as clearly as possible, avoiding the use of profanity or personal threats; and,
• Make sure to submit your comments by the comment period deadline identified.
On March 12, 2008, the EPA promulgated a new NAAQS for ozone,
Under sections 110(a)(1) and (2) of the CAA, states are required to submit infrastructure SIPs to ensure their SIPs provide for implementation, maintenance and enforcement of the NAAQS. These submissions must contain any revisions needed for meeting the applicable SIP requirements of section 110(a)(2), or certifications that their existing SIPs for PM
The EPA is acting upon the SIP submissions from Utah that address the infrastructure requirements of CAA sections 110(a)(1) and 110(a)(2) for the 2008 ozone, 2008 Pb, 2010 NO
The EPA has historically referred to these SIP submissions made for the purpose of satisfying the requirements of CAA sections 110(a)(1) and 110(a)(2) as “infrastructure SIP” submissions. Although the term “infrastructure SIP” does not appear in the CAA, the EPA uses the term to distinguish this particular type of SIP submission from submissions that are intended to satisfy other SIP requirements under the CAA, such as “nonattainment SIP” or “attainment plan SIP” submissions to address the nonattainment planning requirements of part D of title I of the CAA; “regional haze SIP” submissions required by the EPA rule to address the visibility protection requirements of CAA section 169A; and nonattainment new source review (NSR) permit program submissions to address the permit requirements of CAA, title I, part D.
Section 110(a)(1) addresses the timing and general requirements for infrastructure SIP submissions, and section 110(a)(2) provides more details concerning the required contents of these submissions. The list of required elements provided in section 110(a)(2) contains a wide variety of disparate provisions, some of which pertain to required legal authority, some of which pertain to required substantive program provisions, and some of which pertain to requirements for both authority and substantive program provisions.
Examples of some of these ambiguities and the context in which the EPA interprets the ambiguous portions of section 110(a)(1) and 110(a)(2) are discussed at length in our notice of proposed rulemaking: Promulgation of State Implementation Plan Revisions; Infrastructure Requirements for the 1997 and 2006 PM
With respect to certain other issues, the EPA does not believe that an action on a state's infrastructure SIP submission is necessarily the appropriate type of action in which to address possible deficiencies in a state's existing SIP. These issues include: (i) Existing provisions related to excess emissions from sources during periods of startup, shutdown, or malfunction (SSM) that may be contrary to the CAA and the EPA's policies addressing such excess emissions; (ii) existing provisions related to “director's variance” or “director's discretion” that may be contrary to the CAA because they purport to allow revisions to SIP-approved emissions limits while limiting public process or not requiring further approval by the EPA; and (iii) existing provisions for Prevention of Significant Deterioration (PSD) programs that may be inconsistent with current requirements of the EPA's “Final NSR Improvement Rule,” 67 FR 80186, Dec. 31, 2002, as amended by 72 FR 32526, June 13, 2007 (“NSR Reform”).
CAA section 110(a)(1) provides the procedural and timing requirements for
• 110(a)(2)(A): Emission limits and other control measures.
• 110(a)(2)(B): Ambient air quality monitoring/data system.
• 110(a)(2)(C): Program for enforcement of control measures.
• 110(a)(2)(D): Interstate transport.
• 110(a)(2)(E): Adequate resources and authority, conflict of interest, and oversight of local governments and regional agencies.
• 110(a)(2)(F): Stationary source monitoring and reporting.
• 110(a)(2)(G): Emergency powers.
• 110(a)(2)(H): Future SIP revisions.
• 110(a)(2)(J): Consultation with government officials; public notification; and PSD and visibility protection.
• 110(a)(2)(K): Air quality modeling/data.
• 110(a)(2)(L): Permitting fees.
• 110(a)(2)(M): Consultation/participation by affected local entities.
A detailed discussion of each of these elements is contained in the next section.
Two elements identified in section 110(a)(2) are not governed by the three year submission deadline of section 110(a)(1) and are therefore not addressed in this action. These elements relate to part D of Title I of the CAA, and submissions to satisfy them are not due within three years after promulgation of a new or revised NAAQS, but rather are due at the same time nonattainment area plan requirements are due under section 172. The two elements are: (1) Section 110(a)(2)(C) to the extent it refers to permit programs (known as “nonattainment NSR”) required under part D, and (2) section 110(a)(2)(I), pertaining to the nonattainment planning requirements of part D. As a result, this action does not address infrastructure elements related to the nonattainment NSR portion of section 110(a)(2)(C) or related to 110(a)(2)(I). Furthermore, the EPA interprets the CAA section 110(a)(2)(J) provision on visibility as not being triggered by a new NAAQS because the visibility requirements in part C, title 1 of the CAA are not changed by a new NAAQS.
The Utah Department of Environmental Quality (Department or UDEQ) submitted certification of Utah's infrastructure SIP for the 2008 Pb NAAQS on January 19, 2012; 2008 ozone NAAQS on January 31, 2013; 2010 NO
1. Emission limits and other control measures: Section 110(a)(2)(A) requires SIPs to include enforceable emission limitations and other control measures, means, or techniques (including economic incentives such as fees, marketable permits, and auctions of emissions rights), as well as schedules and timetables for compliance as may be necessary or appropriate to meet the applicable requirements of this Act.
The State's submissions for the 2008 Pb, 2008 ozone, 2010 NO
First, this infrastructure element does not require the submittal of regulations or emission limitations developed specifically for attaining the 2008 Pb, 2008 ozone
Second, as previously discussed, the EPA is not proposing to approve or disapprove any existing state rules with regard to director's discretion or variance provisions. A number of states, including Utah, have such provisions which are contrary to the CAA and existing EPA guidance (52 FR 45109, Nov. 24, 1987), and the agency plans to take action in the future to address such state regulations. In the meantime, the EPA encourages any state having a director's discretion or variance provision which is contrary to the CAA and EPA guidance to take steps to correct the deficiency as soon as possible.
Finally, in this action, the EPA is also not proposing to approve or disapprove any existing state provision with regard to excess emissions during SSM of operations at a facility. A number of states, including Utah, have SSM provisions which are contrary to the CAA and existing EPA guidance
Therefore, the EPA is proposing to approve Utah's infrastructure SIP for the 2008 Pb, 2008 ozone, 2010 NO
2. Ambient air quality monitoring/data system: Section 110(a)(2)(B) requires SIPs to “provide for establishment and operation of appropriate devices, methods, systems, and procedures necessary” to “(i) monitor, compile, and analyze data on ambient air quality, and (ii) upon request, make such data available to the Administrator.”
The State's submissions cite UAC rule R307-110-5, which incorporates by reference SIP Section IV (
In this action, the EPA is acting only on Utah's submittal for 2008 ozone NAAQS for CAA section 110(a)(2)(B). Utah's submittals for other pollutants will be addressed in a separate rulemaking action.
Utah's 2013 AMNP for ozone was approved through a letter dated December 24, 2013 (available within the docket). Additionally, the State of Utah submits ozone data to the EPA's Air Quality System database in accordance with 40 CFR 58.16.
We find that Utah's SIP and practices are adequate for the ambient air quality monitoring and data system requirements and therefore propose to approve the infrastructure SIP for the 2008 ozone NAAQS for this element.
3. Program for enforcement of control measures: Section 110(a)(2)(C) requires SIPs to “include a program to provide for the enforcement of the measures described in subparagraph (A), and regulation of the modification and construction of any stationary source within the areas covered by the plan as necessary to assure that [NAAQS] are achieved, including a permit program as required in parts C and D.”
To generally meet the requirements of section 110(a)(2)(C), the State is required to have SIP-approved PSD, nonattainment NSR, and minor NSR permitting programs that are adequate to implement the 2008 Pb, 2008 ozone, 2010 NO
The State's submissions for the 2008 Pb, 2008 ozone, 2010 NO
With respect to Elements (C) and (J), the EPA interprets the CAA to require each state to make an infrastructure SIP submission for a new or revised NAAQS demonstrating that the air agency has a complete PSD permitting program meeting the current requirements for all regulated NSR pollutants. The requirements of Element D(i)(II) may also be satisfied by demonstrating the air agency has a complete PSD permitting program that correctly addresses all regulated NSR pollutants. Utah has shown that it currently has a PSD program in place that covers all regulated NSR pollutants, including greenhouse gases (GHGs). SIP Section VIII (
Utah implements the PSD program by, for the most part, incorporating by reference the federal PSD program as it existed on a specific date. The State periodically updates the PSD program by revising the date of incorporation by reference and submitting the change as a SIP revision. On October 25, 2013 (78 FR 63883), we approved portions of a Utah SIP revision that revised the date of incorporation by reference of the federal PSD program to July 1, 2011. As a result, the SIP revisions generally reflect changes to PSD requirements that the EPA has promulgated prior to the revised date of incorporation by reference.
On July 15, 2011 (76 FR 41712), we approved portions of a Utah SIP revision that revised the date of incorporation by reference of the federal PSD program. That revision addressed the PSD requirements of the Phase 2 Ozone Implementation Rule promulgated in 2005 (70 FR 71612). As a result, the approved Utah PSD program meets current requirements for ozone.
On June 23, 2014, the United States Supreme Court addressed the application of PSD permitting requirements to GHG emissions.
In accordance with the Supreme Court decision, on April 10, 2015, the U.S. Court of Appeals for the District of Columbia Circuit (the DC Circuit) issued an amended judgment vacating the regulations that implemented Step 2 of the EPA's PSD and Title V Greenhouse Gas Tailoring Rule, but not the regulations that implement Step 1 of that rule. Step 1 of the Tailoring Rule covers sources that are required to obtain a PSD permit based on emissions of pollutants other than GHGs. Step 2 applied to sources that emitted only GHGs above the thresholds triggering the requirement to obtain a PSD permit. The amended judgment preserves, without the need for additional rulemaking by the EPA, the application of the BACT requirement to GHG emissions from Step 1 or “anyway” sources.
The EPA is planning to take additional steps to revise the federal PSD rules in light of the Supreme Court and subsequent DC Circuit opinions. Some states have begun to revise their existing SIP-approved PSD programs in light of these court decisions, and some states may prefer not to initiate this process until they have more information about the planned revisions to the EPA's PSD regulations. The EPA is not expecting states to have revised their PSD programs in anticipation of the EPA's planned actions to revise its
At present, the EPA has determined Utah's SIP is sufficient to satisfy Elements (C), (D)(i)(II) element 3, and (J) with respect to GHGs. This is because the PSD permitting program previously approved by the EPA into the SIP continues to require that PSD permits issued to “anyway sources” contain limitations on GHG emissions based on the application of BACT. The EPA most recently approved revisions to Utah's PSD program on February 6, 2014 (79 FR 7070). The approved Utah PSD permitting program still contains some provisions regarding Step 2 sources that are no longer necessary in light of the Supreme Court decision and DC Circuit amended judgment. Nevertheless, the presence of these provisions in the previously-approved plan does not render the infrastructure SIP submission inadequate to satisfy Elements (C), (D)(i)(II), and (J). The SIP contains the PSD requirements for applying the BACT requirement to greenhouse gas emissions from “anyway sources” that are necessary at this time. The application of those requirements is not impeded by the presence of other previously-approved provisions regarding the permitting of Step 2 sources. Accordingly, the Supreme Court decision and subsequent DC Circuit judgment do not prevent the EPA's approval of Utah's infrastructure SIP as to the requirements of Elements (C), (D)(i)(II) and (J).
Finally, we evaluate the PSD program with respect to current requirements for PM
On January 4, 2013, the U.S. Court of Appeals, in
The 2008 Implementation rule addressed by
The court's decision with respect to the nonattainment NSR requirements promulgated by the 2008 Implementation rule also does not affect the EPA's action on the present infrastructure action. The EPA interprets the Act to exclude nonattainment area requirements, including requirements associated with a nonattainment NSR program, from infrastructure SIP submissions due three years after adoption or revision of a NAAQS. Instead, these elements are typically referred to as nonattainment SIP or attainment plan elements, which would be due by the dates statutorily prescribed under subpart 2 through 5 under part D, extending as far as 10 years following designations for some elements.
The second PSD requirement for PM
On March 14, 2012, Utah submitted revisions to the PSD program that adopt by reference federal provisions of 40 CFR part 52, section 21, as they existed on July 1, 2011. As that date is after the effective date of the two rules, the submission incorporates those requirements. The EPA approved the necessary portions of Utah's March 14, 2012 submission on October 25, 2013 (78 FR 63883). Utah's SIP-approved PSD program meets current requirements for PM
The State has a SIP-approved minor NSR program, adopted under section 110(a)(2)(C) of the Act. The minor NSR program is found in section II of the Utah SIP, and was approved by the EPA as section 2 of the SIP (68 FR 37744, June 25, 2003). Since approval of the minor NSR program, the State and the EPA have relied on the program to assure that new and modified sources not captured by the major NSR permitting programs do not interfere with attainment and maintenance of the NAAQS. Utah's minor NSR program, as approved into the SIP, covers the construction and modification of stationary sources of regulated NSR pollutants, including PM
The EPA is proposing to approve Utah's infrastructure SIP for the 2008 Pb, 2008 ozone, 2010 NO
4. Interstate Transport: The interstate transport provisions in CAA section 110(a)(2)(D)(i) (also called “good neighbor” provisions) require each state to submit a SIP that prohibits emissions that will have certain adverse air quality effects in other states. CAA section 110(a)(2)(D)(i) identifies four distinct elements related to the impacts of air pollutants transported across state lines. The two elements under 110(a)(2)(D)(i)(I) require SIPs to contain adequate provisions to prohibit any source or other type of emissions activity within the state from emitting air pollutants that will (element 1) contribute significantly to nonattainment in any other state with respect to any such national primary or secondary NAAQS, and (element 2) interfere with maintenance by any other state with respect to the same NAAQS. The two elements under 110(a)(2)(D)(i)(II) require SIPs to contain adequate provisions to prohibit emissions that will interfere with
With regard to the PSD portion of CAA section 110(a)(2)(D)(i)(II), this requirement may be met by a state's confirmation in an infrastructure SIP submission that new major sources and major modifications in the state are subject to a comprehensive EPA-approved PSD permitting program in the SIP that applies to all regulated new source review (NSR) pollutants and that satisfies the requirements of the EPA's PSD implementation rules.
In-state sources not subject to PSD for a particular NAAQS because they are in a nonattainment area for that standard may also have the potential to interfere with PSD in an attainment or unclassifiable area of another state.
The EPA is proposing to approve the infrastructure SIP submission with regard to the requirements of element 3 of section 110(a)(2)(D)(i) for the 2006 PM
5. Interstate and International transport provisions: CAA section 110(a)(2)(D)(ii) requires SIPs to include provisions ensuring compliance with the applicable requirements of CAA sections 126 and 115 (relating to interstate and international pollution abatement). Specifically, CAA section 126(a) requires new or modified major sources to notify neighboring states of potential impacts from the source.
Section 126(a) of the CAA requires notification to affected, nearby states of major proposed new (or modified) sources. Sections 126(b) and (c) pertain to petitions affected states may seek from the Administrator of the EPA (Administrator) regarding sources violating the “interstate transport” provisions of section 110(a)(2)(D)(i). Section 115 of the CAA similarly pertains to international transport of air pollution.
As required by 40 CFR 51.166(q)(2)(iv), Utah's SIP-approved PSD program requires notice to states whose air quality may be impacted by the emissions of sources subject to PSD.
Utah has no pending obligations under sections 126(c) or 115(b) of the CAA; therefore, its SIP currently meets the requirements of those sections. In summary, the SIP meets the requirements of CAA section 110(a)(2)(D)(ii), and the EPA is therefore proposing approval of this element for the 2008 Pb, 2008 ozone, 2010 NO
6. Adequate resources: Section 110(a)(2)(E)(i) requires states to provide “necessary assurances that the State [. . .] will have adequate personnel, funding, and authority under State law to carry out [the SIP] (and is not prohibited by any provision of federal or state law from carrying out the SIP or portion thereof).” Section 110(a)(2)(E)(ii) also requires each state to “comply with the requirements respecting State boards” under CAA section 128. Section 110(a)(2)(E)(iii) requires states to provide “necessary assurances that, where the State has relied on a local or regional government, agency, or instrumentality for the implementation of any [SIP] provision, the State has responsibility for ensuring adequate implementation of such [SIP] provision.”
The provisions contained in Chapter 2 of Title 19 of the Utah Code and Utah SIP Section I,
With respect to section 110(a)(2)(E)(iii), the regulations cited by Utah in their certifications (Utah SIP Section VI,
Section 110(a)(2)(E)(ii) requires each state's SIP to contain provisions that comply with the requirements of section 128 of the CAA. Section 128 contains two explicit requirements: (i) That “any board or body which approves permits or enforcement orders under [the CAA] shall have at least a majority of members who represent the public interest and do not derive any significant portion of their income from persons subject to permits or enforcement orders” under the CAA; and (ii) that “any potential conflicts of interest by members of such board or body or the head of an executive agency with similar powers be adequately disclosed.”
In our November 25, 2013 (78 FR 63883) action, we disapproved Utah's April 17, 2008 and September 21, 2010 infrastructure SIP submissions for the 1997 and 2006 PM
On March 14, 2016, the EPA received a submission from the State of Utah to address the requirements of section 128, containing new rule language approved by the Utah AQB on March 2, 2016. A copy of the submission, including the new rules, Conflict of Interest R307-104-1 (
We are proposing to approve the State's March 14, 2016 SIP submission as meeting the requirements of section 128 because we believe that it complies with the statutory requirements and is consistent with the EPA's guidance recommendations concerning section 128. In 1978, the EPA issued a guidance memorandum recommending ways states could meet the requirements of section 128, including suggested interpretations of certain key terms in section 128.
In implementing section 128, the EPA has identified a number of key considerations relevant to evaluation of a SIP submission. The EPA has identified these considerations in the 1978 guidance and in subsequent rulemaking actions on SIP submissions relevant to section 128, whether as SIP revisions for this specific purpose or as an element of broader actions on infrastructure SIP submissions for one or more NAAQS.
Each state must meet the requirements of section 128 through provisions that the EPA approves into the state's SIP and are thus made federally enforceable. Section 128 explicitly mandates that each SIP “shall contain requirements” that satisfy subsections 128(a)(1) and 128(a)(2). A mere narrative description of state statutes or rules, or of a state's current or past practice in constituting a board or body and in disclosing potential conflicts of interest, is not a requirement contained in the SIP and does not satisfy the plain text of section 128.
Subsection 128(a)(1) applies only to states that have a board or body that is composed of multiple individuals and that, among its duties, approves permits or enforcement orders under the CAA. It does not apply in states that have no such multi-member board or body that performs these functions, and where instead a single head of an agency or other similar official approves permits or enforcement orders under the CAA. This flows from the text of section 128, for two reasons. First, as subsection 128(a)(1) refers to a majority of members of the board or body in the plural, we think it reasonable to read subsection 128(a)(1) as not creating any requirements for an individual with sole authority for approving permits or enforcement orders under the CAA. Second, subsection 128(a)(2) explicitly applies to the head of an executive agency with “similar powers” to a board or body that approves permits or enforcement orders under the CAA, while subsection 128(a)(1) omits any reference to heads of executive agencies. We infer that subsection 128(a)(1) should not apply to heads of executive agencies who approve permits or enforcement orders. States with no multi-member board or body that performs these functions, and instead have a single head of an agency or other similar official who approves CAA permits or enforcement orders, can satisfy the requirements of CAA 128(a)(1) with a negative declaration to that effect.
Subsection 128(a)(2) applies to all states, regardless of whether the state has a multi-member board or body that approves permits or enforcement orders under the CAA. Although the title of section 128 is “State boards,” the language of subsection 128(a)(2) explicitly applies where the head of an executive agency, rather than a board or body, approves permits or enforcement orders. In instances where the head of an executive agency delegates his or her power to approve permits or enforcement orders, or where statutory authority to approve permits or enforcement orders is nominally vested in another state official, the requirement to adequately disclose potential conflicts of interest still applies. In other words, the EPA interprets section 128(a)(2) to apply to all states, regardless of whether a state board or body approves permits or enforcement orders under the CAA or whether a head of a state agency (or his/her delegates) performs these duties. Thus, all state SIPs must contain provisions that require adequate disclosure of potential conflicts of interest in order to meet the requirements of subsection 128(a)(2). The question of which entities or parties must be subject to such disclosure requirements must be evaluated by states and the EPA in light of the specific facts and circumstances of each state's regulatory structure.
A state may satisfy the requirements of section 128 by submitting for adoption into the SIP a provision of state law that closely tracks or mirrors the language of the applicable provisions of section 128. A state may take this approach in two ways. First, the state may adopt the language of subsections 128(a)(1) and 128(a)(2) verbatim. Under this approach, the state will be able to meet the continuing requirements of section 128 without any additional, future SIP revisions, even if the state adds or removes authority, either at the state or local level, to individual or to boards or bodies to approve permits or enforcement orders under the CAA so long as the state continues to meet section 128 requirements.
Second, the state may modify the language of subsections 128(a)(1) (if applicable) and 128(a)(2) to name the particular board, body, or individual official with approval authority. In this case, if the state subsequently modifies that authority, the state may have to submit a corresponding SIP revision to meet the continuing requirements of section 128. If the state chooses to not mirror the language of section 128, the state may adopt state statutes and/or regulations that functionally impose the same requirements as those of section 128, including definitions for key terms such as those recommended in the EPA's 1978 guidance. While either of these approaches would meet the minimum requirements of section 128, the statute also explicitly authorizes states to adopt more stringent requirements, for example to impose additional requirements for recusal of board members from decisions, above and beyond the explicit board composition requirements. Although such recusal alone does not meet the requirements of section 128, states have the authority to require that over and above the explicit requirements of section 128. These approaches give states flexibility in implementing section 128, while still ensuring consistency with the statute.
As previously explained, the EPA interprets subsection 128(a)(1) to apply only to states that have a board or body with multiple members that, among its duties, approves permits or enforcement orders under the Act. In its 2012 PM
The EPA has evaluated Utah's submittal containing R307-104-1 (
Utah's provisions are also sufficient for adequate disclosure. Under R307-104-3(2), “[e]very individual listed in R307-104-3(1) who is an officer, director, agent, employee, or the owner of a substantial interest in any business entity which is subject to the regulation of the agency by which the individual listed in R307-104-3(1) is employed, shall disclose any position held and the precise nature and value of the interest upon first becoming a public officer or public employee listed in R307-104-3(1), and again whenever his or her position in the business entity changes significantly or if the value of his or her interest in the entity is significantly increased.” This language covers a sufficiently broad range of potential conflicts of interest with any business subject to regulation by Utah DAQ, including permittees and the subjects of enforcement orders. The form of disclosure is also adequate: It is made in a sworn statement to the attorney general and is made publicly available. We propose to find that these procedures provide adequate disclosure of potential conflicts of interest within the meaning of subsection 128(a)(2).
In summary, the EPA proposes to approve Utah's March 14, 2016 submittal into the SIP to meet the requirements of section 128 of the Act. We also propose to approve Utah's infrastructure SIP with respect to the requirements of Section 110(a)(2)(E)(ii) for 2008 Pb, 2008 ozone
7. Stationary source monitoring system: Section 110(a)(2)(F) requires: (i) “the installation, maintenance, and replacement of equipment, and the implementation of other necessary steps, by owners or operators of stationary sources to monitor emissions from such sources; (ii) periodic reports on the nature and amounts of emissions and emissions-related data from such sources; and (iii) correlation of such reports by the State agency with any emission limitations or standards established pursuant to [the Act], which reports shall be available at reasonable times for public inspection.”
The provisions cited by Utah in SIP Section III
Furthermore, Utah is required to submit emissions data to the EPA for purposes of the National Emissions Inventory (NEI). The NEI is the EPA's central repository for air emissions data. The EPA published the Air Emissions Reporting Rule (AERR) on December 5, 2008, which modified the requirements for collecting and reporting air emissions data (73 FR 76539). The AERR shortened the time states had to report emissions data from 17 to 12
Based on the analysis above, we propose to approve the Utah SIP as meeting the requirements of CAA section 110(a)(2)(F) for the 2008 Pb, 2008 ozone
8. Emergency powers: Section 110(a)(2)(G) of the CAA requires infrastructure SIPs to “provide for authority comparable to that in [CAA section 303] and adequate contingency plans to implement such authority[.]”
Under CAA section 303, the EPA Administrator has authority to bring suit to immediately restrain an air pollution source that presents an “imminent and substantial endangerment to public health or welfare, or the environment.”
Utah's SIP submittals with regard to the section 110(a)(2)(G) emergency order requirements cite the EPA approved provisions (State SIP Section I
In regard to imminent and substantial endangerment to the environment, Utah's Emergency Management Act allows the Governor to issue rules and regulations having the “full force and effect of law” during a state of emergency. Additionally, Utah Code 53-2a-209(1) allows the Governor to suspend rules and regulations of state agencies that would prevent the ability to adequately deal with such disasters.
While no single Utah statute mirrors the authorities of CAA section 303, we propose to find that the combination of Utah Code, UAC Rules, and Utah's Emergency Management Act provisions previously discussed provide for authority comparable to section 303. Section 303 authorizes the Administrator to immediately bring suit to restrain and issue emergency orders when necessary, to enable the Administrator to take prompt administrative action against any person causing or contributing to air pollution that presents an imminent and substantial endangerment to public health or welfare, or the environment. Therefore, we propose that Utah's SIP submittals sufficiently meet the requirements of CAA 110(a)(2)(G) because they demonstrate that Utah has authority comparable to CAA section 303.
States must also have adequate contingency plans adopted into their SIP to implement the air agency's emergency episode authority (as previously discussed). This can be done by submitting a plan that meets the applicable requirements of 40 CFR part 51, subpart H for the relevant NAAQS if the NAAQS is covered by those regulations. The EPA approved Utah's State SIP Section VII (
As noted in the 2011 Memo “based on [the] EPA's experience to date with the Pb NAAQS and designating Pb nonattainment areas, [the] EPA expects that an emergency episode associated with Pb emissions would be unlikely and, if it were to occur, would be the result of a malfunction or other emergency situation at a relatively large source of Pb” (page 14).
Based on the above analysis, we propose approval of Utah's SIP as meeting the requirements of CAA section 110(a)(2)(G) for the 2008 Pb, 2008 ozone, and 2010 NO
9. Future SIP revisions: Section 110(a)(2)(H) requires that SIPs provide for revision of such plan: (i) “[f]rom time to time as may be necessary to take account of revisions of such national primary or secondary ambient air
Utah SIP Section I cites 19-2-104 and 19-2-109 of the Utah Code. Sections 19-2-104 and 19-2-109 give the AQB sufficient authority to meet the requirements of CAA section 110(a)(2)(H). Therefore, we propose to approve Utah's SIP as meeting the requirements of CAA section 110(a)(2)(H).
10. Consultation with government officials, public notification, PSD and visibility protection: Section 110(a)(2)(J) requires that each SIP “meet the applicable requirements of section 121 of this title (relating to consultation), section 127 of this title (relating to public notification), and part C of this subchapter (relating to PSD of air quality and visibility protection).”
In its certifications, the State cites SIP Section I (
The State has a SIP-approved PSD program that incorporates by reference the federal program at 40 CFR 52.21; these provisions are located in R307-405-2 of the UAC. The EPA has further evaluated Utah's SIP-approved PSD program in this proposed action under VI.3 of this notice which analyzes whether the Utah SIP has met CAA section 110(a)(2)(C). There, we propose approval with respect to the PSD requirements of element (C); we likewise do so here with respect to the PSD requirements of element (J).
Finally, with regard to the applicable requirements for visibility protection, the EPA recognizes states are subject to visibility and regional haze program requirements under part C of the Act. In the event of the establishment of a new NAAQS, however, the visibility and regional haze program requirements under part C do not change. Thus, we find that there are no applicable visibility requirements under section 110(a)(2)(J) when a new NAAQS becomes effective.
Based on the above analysis, we propose to approve the Utah SIP as meeting the requirements of CAA section 110(a)(2)(J) for the 2008 Pb, 2008 ozone
11. Air quality and modeling/data: Section 110(a)(2)(K) requires each SIP provide for: (i) “the performance of such air quality modeling as the Administrator may prescribe for the purpose of predicting the effect on ambient air quality of any emissions of any air pollutant for which the Administrator has established a [NAAQS]; and (ii) the submission, upon request, of data related to such air quality modeling to the Administrator.”
UAC rule R307-405-13 incorporates by reference the air quality model provisions of 40 CFR 52.21(l), which includes the air quality model requirements of appendix W of 40 CFR part 51, pertaining to the Guideline on Air Quality Models. Additionally, Utah Code 19-104(1)(a)-(b) provide the AQB with the authority to propose and finalize rules that require air quality modeling for the purpose of predicting the effect on ambient air quality relating to NAAQS. As a result, the SIP provides for such air quality modeling as the Administrator has prescribed.
Therefore, we propose to approve the Utah SIP as meeting the CAA section 110(a)(2)(K) for the 2008 Pb, 2008 ozone
12. Permitting fees: Section 110(a)(2)(L) requires “the owner or operator of each major stationary source to pay to the permitting authority, as a condition of any permit required under this [Act], a fee sufficient to cover[:] (i) The reasonable costs of reviewing and acting upon any application for such a permit[;] and (ii) if the owner or operator receives a permit for such source, the reasonable costs of implementing and enforcing the terms and conditions of any such permit (not including any court costs or other costs associated with any enforcement action), until such fee requirement is superseded with respect to such sources by the Administrator's approval of a fee program under [title] V.”
UAC rule R307-414,
We also note that all the State's certifications cite R307-415 which is the regulation that provides for collection of permitting fees under Utah's approved title V permit program (60 FR 30192, June 8, 1995). As discussed in that approval, the State demonstrated that the fees collected were sufficient to administer the program.
Therefore we propose to approve the submissions as supplemented by the State for the 2008 Pb, 2008 ozone
13. Consultation/participation by affected local entities: Section 110(a)(2)(M) requires states to “provide for consultation and participation [in SIP development] by local political subdivisions affected by [the SIP].”
The provisions cited in Utah's SIP submittals (SIP Section VI (
In this action, the EPA is proposing to approve infrastructure elements for the 2008 Pb, 2008 ozone
A comprehensive summary of infrastructure elements, and revisions and additions to the UAC organized by
In this rule, the EPA is proposing to include in a final the EPA rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by reference the Utah Administrative Code Rules pertaining to state board requirements VI.6. b.
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable federal regulations (42 U.S.C. 7410(k), 40 CFR 52.02(a)). Thus, in reviewing SIP submissions, the EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this proposed action merely approves some state law as meeting federal requirements and disapproves other state law because it does not meet federal requirements; this proposed action does not impose additional requirements beyond those imposed by state law. For that reason, this proposed action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, Oct. 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, Aug. 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and,
• Does not provide the EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, Feb. 16, 1994).
The SIP is not approved to apply on any Indian reservation land or in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Greenhouse gases, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
42 U.S.C. 7401
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) proposes to approve the 2011 base year inventories for the 2008 8-hour ozone national ambient air quality standard (NAAQS) for the Allentown-Bethlehem-Easton, Lancaster, Pittsburgh-Beaver Valley, and Reading nonattainment areas, and the Pennsylvania portion of the Philadelphia-Wilmington-Atlantic City nonattainment area, submitted by the Commonwealth of Pennsylvania as a revision to the Pennsylvania State Implementation Plan (SIP). In the Rules and Regulations section of this issue of the
Comments must be received in writing by May 26, 2016.
Submit your comments, identified by Docket ID No. EPA-R03-OAR-2016-0002 at
Maria A. Pino, (215) 814-2181, or by email at
For further information regarding Pennsylvania's 2011 base year inventories for the 2008 8-hour ozone NAAQS for the Allentown-Bethlehem-Easton, Lancaster, Pittsburgh-Beaver Valley, and Reading areas, and the Pennsylvania portion of the Philadelphia-Wilmington-Atlantic City area, please see the information provided in the direct final action, with the same title, that is located in the Rules and Regulations section of this issue of the
Environmental Protection Agency (EPA).
Proposed rule.
On July 15, 2015, the State of Tennessee, through the Tennessee Department of Environment and Conservation (TDEC), submitted a request for the Environmental Protection Agency (EPA) to redesignate the Bristol, Tennessee 2008 lead nonattainment area (hereafter referred to as the “Bristol Area” or the “Area”) to attainment for the 2008 lead National Ambient Air Quality Standards (NAAQS) and an associated State Implementation Plan (SIP) revision containing a maintenance plan and a reasonably available control measures (RACM) determination for the Area. EPA is proposing to determine that the Bristol Area is continuing to attain the 2008 lead NAAQS; to approve the SIP revision containing the State's maintenance plan for maintaining attainment of the 2008 lead standard and the State's RACM determination; and to redesignate the Bristol Area to attainment for the 2008 lead NAAQS.
Comments must be received on or before May 26, 2016.
Submit your comments, identified by Docket ID No. EPA-R04-OAR-2012-0323 at
Sean Lakeman of the Air Regulatory Management Section, Air Planning and Implementation Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303-8960. Mr. Lakeman may be reached by phone at (404) 562-9043 or via electronic mail at
EPA is proposing to take the following four separate but related actions: (1) To approve Tennessee's RACM determination for the Bristol Area pursuant to Clean Air Act (CAA) section 172(c)(1) into the SIP; (2) to determine that the Area is continuing to attain the 2008 lead NAAQS; (3) to approve Tennessee's maintenance plan for maintaining the 2008 lead NAAQS in the Area into the SIP; and (4) to redesignate the Area. The Bristol Area is comprised of the portion of Sullivan County, Tennessee, bounded by a 1.25 kilometer radius surrounding the Universal Transverse Mercator (UTM) coordinates 4042923 meters E., 386267 meters N., Zone 17, which surrounds the lead acid-battery manufacturing and lead oxide production facility owned by Exide Technologies (Exide Facility).
EPA's 2008 lead nonattainment designation for the Area triggered an obligation for Tennessee to develop a nonattainment SIP revision addressing certain CAA requirements under title I, part D, subpart 1 (hereinafter “Subpart 1”) and to submit that SIP revision in accordance with the deadlines in title I, part D, subpart 5. Subpart 1 contains the general requirements for nonattainment areas for criteria pollutants, including requirements to develop a SIP that provides for the implementation of RACM, requires reasonable further progress (RFP), includes base-year and attainment-year emissions inventories, and provides for the implementation of contingency measures. On August 29, 2012, EPA published a final determination that the Area had attained the 2008 lead NAAQS by the attainment date based on quality-assured and certified ambient air monitoring data for the 2007-2009 time period.
EPA is also making the preliminarily determination that the Bristol Area is continuing to attain the 2008 lead NAAQS based on recent air quality data, and proposing to approve Tennessee's maintenance plan for the Bristol Area as meeting the requirements of section 175A (such approval being one of the CAA criteria for redesignation to attainment status). The maintenance plan is designed to keep the Bristol Area in attainment of the 2008 lead NAAQS through 2025. As explained in Section V.B, below, EPA is also proposing to determine that attainment can be maintained through 2026.
EPA is also proposing to determine that the Bristol Area has met the requirements for redesignation under section 107(d)(3)(E) of the CAA. Accordingly, in this action, EPA is proposing to approve a request to change the legal designation of the Bristol Area from nonattainment to attainment for the 2008 lead NAAQS.
In summary, today's notice of proposed rulemaking is in response to Tennessee's July 15, 2015, redesignation request and associated SIP submission that address the specific issues summarized above and the necessary elements described in section 107(d)(3)(E) of the CAA for redesignation of the Bristol Area to attainment for the 2008 lead NAAQS.
On November 12, 2008, EPA promulgated a revised primary and secondary lead NAAQS of 0.15 micrograms per cubic meter (µg/m
EPA designated the Bristol Area as a nonattainment area for the 2008 lead NAAQS on November 22, 2010 (effective December 31, 2010), using 2007-2009 ambient air quality data.
As discussed above, EPA determined that Tennessee had attained the 2008 lead NAAQS prior to the attainment date and issued a Clean Data Determination on August 29, 2012.
The CAA provides the requirements for redesignating a nonattainment area to attainment. Specifically, section 107(d)(3)(E) of the CAA allows for redesignation providing that: (1) The Administrator determines that the area has attained the applicable NAAQS; (2) the Administrator has fully approved the applicable implementation plan for
On April 16, 1992, EPA provided guidance on redesignation in the General Preamble for the Implementation of title I of the CAA Amendments of 1990 (57 FR 13498), and supplemented this guidance on April 28, 1992 (57 FR 18070). EPA has provided further guidance on processing redesignation requests in the following documents:
1. “Procedures for Processing Requests to Redesignate Areas to Attainment,” Memorandum from John Calcagni, Director, Air Quality Management Division, September 4, 1992 (hereafter referred to as the “Calcagni Memorandum”);
2. “State Implementation Plan (SIP) Actions Submitted in Response to Clean Air Act (CAA) Deadlines,” Memorandum from John Calcagni, Director, Air Quality Management Division, October 28, 1992; and
3. “Part D New Source Review (Part D NSR) Requirements for Areas Requesting Redesignation to Attainment,” Memorandum from Mary D. Nichols, Assistant Administrator for Air and Radiation, October 14, 1994.
On July 15, 2015, Tennessee requested that EPA redesignate the Bristol Area to attainment for the 2008 lead NAAQS and submitted an associated SIP revision containing a maintenance plan and a Subpart 1 RACM determination. EPA's evaluation indicates that the RACM determination meets the requirements of CAA section 172(c)(1), the Bristol Area continues to attain the 2008 lead NAAQS, and the Bristol Area meets the requirements for redesignation as set forth in section 107(d)(3)(E)(i), including the maintenance plan requirements under section 175A of the CAA. As a result, EPA is proposing to take the four related actions summarized in section I of this notice.
As stated above, in accordance with the CAA, EPA proposes in this action to: (1) Approve Tennessee's Subpart 1 RACM determination for the Bristol Area into the Tennessee SIP; (2) determine that the Area is continuing to attain the 2008 lead NAAQS; (3) approve the 2008 lead NAAQS maintenance plan for the Area into the SIP; and (4) redesignate the Area to attainment for the 2008 lead NAAQS.
EPA does not believe that Subpart 1 nonattainment planning requirements, including RACM, are “applicable” for purposes of CAA section 107(d)(3)(E)(ii) once an area is attaining the NAAQS and, therefore, does not believe that these planning requirements must be approved into the SIP before EPA can redesignate an area to attainment.
EPA is bound by the Sixth Circuit's decision in
Subpart 1 requires that each attainment plan “provide for the implementation of all reasonably available control measures as expeditiously as practicable (including such reductions in emissions from the existing sources in the area as may be obtained through the adoption, at a minimum, of reasonably available control technology), and shall provide for attainment of the national primary ambient air quality standards.”
In its July 15, 2015, SIP revision, the State determined that no additional control measures are necessary in the Area to satisfy the section 172(c)(1) RACM requirement. EPA is proposing to approve this determination on the basis that the Area has attained the 2008 lead NAAQS and, therefore, no emission reduction measures are necessary to satisfy Subpart 1 RACM. As noted above, EPA has determined that the Area has attaining data for the 2008 lead NAAQS and met the standard by the December 31, 2015, attainment date.
Additionally, Tennessee's Subpart 1 RACM determination is approvable on the basis that the SIP revision demonstrates that no additional reasonably available controls would have advanced the attainment date. In Tennessee's RACM analysis, the State notes that the only source of lead emissions in the Area—the Exide Facility—permanently shut down in 2014. In a letter to TDEC dated October 30, 2014, Exide Technologies surrendered its major source air operating permit and stated that the lead oxide and lead acid-battery production process equipment, constituting the potential sources of air emissions covered by the air permit, had been decommissioned and largely removed from the site. The State also notes that, by July 16, 2008, the Exide Facility was operating fabric filters and wet scrubbers to comply with EPA's maximum achievable control technology (MACT) standards in 40 CFR part 63, subpart PPPPPP for lead-acid battery manufacturing facilities and that these MACT standards satisfied RACM requirements for controlling lead emissions. EPA has reviewed the RACM portion of Tennessee's July 15, 2015, SIP revision and agrees with the State's determination that it was not necessary to adopt or implement additional lead control measures in the Area.
The five redesignation criteria provided under CAA section 107(d)(3)(E) are discussed in greater detail for the Area in the following paragraphs of this section.
For redesignating a nonattainment area to attainment, the CAA requires EPA to determine that the area has attained the applicable NAAQS.
On August 29, 2012, EPA determined that the Bristol Area was attaining the 2008 lead NAAQS based on certified 2009-2011 data.
The 3-year design value for 2012-2014 for the Bristol Area is 0.07 µg/m
For redesignating a nonattainment area to attainment, the CAA requires EPA to determine that the state has met all applicable requirements under section 110 and part D of title I of the CAA (CAA section 107(d)(3)(E)(v)) and that the state has a fully approved SIP under section 110(k) for the area (CAA section 107(d)(3)(E)(ii)). EPA proposes to find that Tennessee has met all applicable SIP requirements for the Bristol Area under section 110 of the CAA (general SIP requirements) for purposes of redesignation. Additionally, EPA proposes to find that Tennessee has met all applicable SIP requirements for purposes of redesignation under part D of title I of the CAA in accordance with section 107(d)(3)(E)(v) and that the SIP is fully approved with respect to all requirements applicable for purposes of redesignation in accordance with section 107(d)(3)(E)(ii) contingent upon
Section 110(a)(2)(D) requires that SIPs contain certain measures to prevent sources in a state from significantly contributing to air quality problems in another state. To implement this provision, EPA has required certain states to establish programs to address the interstate transport of air pollutants. The section 110(a)(2)(D) requirements for a state are not linked with a particular nonattainment area's designation and classification in that state. EPA believes that the requirements linked with a particular nonattainment area's designation and classifications are the relevant measures to evaluate in reviewing a redesignation request. The transport SIP submittal requirements, where applicable, continue to apply to a state regardless of the designation of any one particular area in the state. Thus, EPA does not believe that the CAA's interstate transport requirements should be construed to be applicable requirements for purposes of redesignation.
In addition, EPA believes that other section 110 elements that are neither connected with nonattainment plan submissions nor linked with an area's attainment status are not applicable requirements for purposes of redesignation. The area will still be subject to these requirements after the area is redesignated. The section 110 and part D requirements which are linked with a particular area's designation and classification are the relevant measures to evaluate in reviewing a redesignation request. This approach is consistent with EPA's existing policy on applicability (
EPA's longstanding interpretation of the nonattainment planning requirements of section 172 is that once an area is attaining the NAAQS, those requirements are not “applicable” for purposes of CAA section 107(d)(3)(E)(ii) and therefore need not be approved into the SIP before EPA can redesignate the area. In the 1992 General Preamble for Implementation of Title I, EPA set forth its interpretation of applicable requirements for purposes of evaluating redesignation requests when an area is attaining a standard.
Because attainment has been reached in the Area, no additional measures are needed to provide for attainment. Therefore, the section 172(c)(2) requirement that nonattainment plans contain provisions promoting reasonable further progress toward attainment is not relevant for purposes of redesignation because EPA has determined that the Area has monitored attainment of the NAAQS. In addition, because the Area has attained the standard and is no longer subject to a RFP requirement, the requirement to submit the section 172(c)(9) contingency measures is not applicable for purposes of redesignation. Section 172(c)(6) requires the SIP to contain control measures necessary to provide for attainment of the NAAQS. Because attainment has been reached, no additional measures are needed to provide for attainment.
Section 172(c)(3) requires submission for approval a comprehensive, accurate, and current inventory of actual emissions. On January 9, 2014, EPA approved Tennessee's 2010 base-year emissions inventory for the Area.
Section 172(c)(4) requires the identification and quantification of allowable emissions for major new and modified stationary sources to be allowed in an area, and section 172(c)(5) requires source permits for the construction and operation of new and modified major stationary sources anywhere in the nonattainment area. Tennessee currently has a fully-approved part D NSR program in place. However, EPA has determined that, since PSD requirements will apply after redesignation, areas being redesignated need not comply with the requirement that a NSR program be approved prior to redesignation, provided that the area demonstrates maintenance of the NAAQS without part D NSR. A more detailed rationale for this view is described in a memorandum from Mary Nichols, Assistant Administrator for Air and Radiation, dated October 14, 1994, entitled “Part D New Source Review Requirements for Areas Requesting Redesignation to Attainment.” Tennessee has demonstrated that the Area will be able to maintain the NAAQS without part D NSR in effect, and therefore Tennessee need not have fully approved part D NSR programs prior to approval of the redesignation request. Tennessee's PSD program will become effective in the Area upon redesignation to attainment.
Section 172(c)(7) requires the SIP to meet the applicable provisions of section 110(a)(2). As noted above, EPA believes that the Tennessee SIP meets the requirements of section 110(a)(2) applicable for purposes of redesignation.
Section 172(c)(8) allows a state to use equivalent modeling, emission inventory, and planning procedures if such use is requested by the state and approved by EPA. Tennessee has not requested the use of equivalent techniques under section 172(c)(8).
EPA has fully approved the applicable Tennessee SIP for the Bristol Area under section 110(k) of the CAA for all requirements applicable for purposes of redesignation with the exception of the Subpart 1 RACM requirements. EPA may rely on prior SIP approvals in approving a redesignation request (
As indicated above, EPA believes that the section 110 elements that are neither connected with nonattainment plan submissions nor linked to an area's nonattainment status are not applicable requirements for purposes of redesignation. If EPA finalizes approval of the State's Subpart 1 RACM determination, EPA will have approved all part D requirements applicable for purposes of this redesignation pursuant to the Sixth Circuit's decision.
For redesignating a nonattainment area to attainment, the CAA requires EPA to determine that the air quality improvement in the area is due to permanent and enforceable reductions in emissions resulting from implementation of the SIP, applicable Federal air pollution control regulations, and other permanent and enforceable reductions (CAA section 107(d)(3)(E)(iii)). EPA has preliminarily determined that Tennessee has demonstrated that the observed air quality improvement in the Bristol Area is due to permanent and enforceable reductions in emissions.
When EPA designated the Bristol Area as a nonattainment for the lead NAAQS, EPA determined that operations at the Exide Facility were the primary cause of the 2008 lead NAAQS violation in the Area. The Facility installed fabric filters and wet scrubbing systems to meet federal MACT standards for lead-acid battery manufacturing facilities by July 16, 2008. In an October 30, 2014, letter to TDEC, Exide Technologies surrendered its air permits for the Facility and noted that the lead oxide and lead acid-battery production process equipment had been decommissioned and largely removed from the site.
For redesignating a nonattainment area to attainment, the CAA requires EPA to determine that the area has a fully approved maintenance plan pursuant to section 175A of the CAA.
Section 175A of the CAA sets forth the elements of a maintenance plan for areas seeking redesignation from nonattainment to attainment. Under section 175A, the plan must demonstrate continued attainment of the applicable NAAQS for at least 10 years after the Administrator approves a redesignation to attainment. Eight years after the redesignation, the state must submit a revised maintenance plan demonstrating that attainment will continue to be maintained for the 10 years following the initial 10-year period. To address the possibility of future NAAQS violations, the maintenance plan must contain such
As noted earlier, EPA previously determined that the Bristol Area attained the 2008 lead NAAQS based on monitoring data for the 3-year period from 2009-2011. Today, EPA is proposing to determine that the Bristol Area continues to attain the 2008 lead NAAQS. In its maintenance plan, the State selected 2010 as the base year and 2012 as the attainment emission inventory year. The attainment inventory identifies a level of emissions in the Area that is sufficient to attain the 2008 lead NAAQS. Tennessee began development of the attainment inventory by first generating a baseline emissions inventory for the Bristol Area. As noted above, the year 2010 was chosen as the base year for developing a comprehensive emissions inventory for lead. To evaluate maintenance through 2025, Tennessee prepared emissions projections for the years 2015 and 2025.
Descriptions of how Tennessee developed the emissions inventory are located in the Appendix D of the July 15, 2015, submittal, which can be found in the docket for this action. The Exide Facility is the only point source of lead emissions within the Area. The State calculated lead emissions from Exide Facility operations using data collected through stack tests and the application of emissions factors. Tennessee obtained the area source category inventory from EPA's 2011 NEI ver.2 database. To estimate lead emissions from area sources in the Bristol Area, Tennessee apportioned the county-level lead emissions from area sources based on population and determined that lead emissions from area sources total approximately 0.0001 tpy in the Area. The State assumed that these area source emissions remain constant throughout the maintenance period (
The maintenance plan associated with the redesignation request includes a maintenance demonstration that:
(i) Shows compliance with and maintenance of the 2008 lead NAAQS by providing information to support the demonstration that current and future emissions of lead remain at or below 2012 emissions levels.
(ii) Uses 2012 as the attainment year and includes future emissions inventory projections for 2015 and 2025.
(iii) Identifies an “out year” at least 10 years after the time necessary for EPA to review and approve the maintenance plan.
(iv) Provides actual (2010 and 2012) and projected emissions inventories, in tons per year (tpy), for the Bristol Area, as shown in Table 2, below
In situations where local emissions are the primary contributor to nonattainment, such as the Bristol Area, if the future projected emissions in the nonattainment area remain at or below the baseline emissions in the nonattainment area, then the related ambient air quality standards should not be exceeded in the future. Tennessee has projected emissions as described previously and determined that emissions in the Tennessee portion of the Bristol Area will remain below those in the attainment year inventory for the duration of the maintenance plan.
While the maintenance plan projects maintenance of the 2008 lead NAAQS through 2025, EPA believes that the Bristol Area will continue to maintain the standard at least through the year 2026 because the only point source of lead emissions in the Area has permanently shut down; the design values for the Area beginning in 2008-2010 have been well below the NAAQS standard of 0.15 µg/m
There are currently four monitors measuring ambient air lead concentrations in the Bristol Area. However, as noted above, only the monitor operated by TDEC meets the requirements of 40 CFR part 58. Therefore, only data from this monitor can be used to evaluate compliance with the NAAQS. TDEC has committed to continue operation of its lead monitor in the Bristol Area in compliance with 40 CFR part 58 and has thus addressed the requirement for monitoring. EPA approved Tennessee's monitoring plan on October 26, 2015.
Tennessee has the legal authority to enforce and implement the maintenance plan for the Area. This includes the authority to adopt, implement, and enforce any subsequent emissions control contingency measures determined to be necessary to correct future lead attainment problems.
Large stationary sources are required to submit an emissions inventory annually to TDEC. TDEC prepares a new periodic inventory for all lead sources every three years. This lead inventory will be prepared for future years as necessary to comply with the inventory reporting requirements established in the CFR. Emissions information will be compared to the 2010 base year and the 2025 projected maintenance year inventory to assess emission trends, as necessary, and to assure continued compliance with the lead standard. Additionally, under the Air Emissions Reporting Requirements (AERR), TDEC
Section 175A of the CAA requires that a maintenance plan include such contingency measures as EPA deems necessary to assure that the state will promptly correct a violation of the NAAQS that occurs after redesignation. The maintenance plan should identify the contingency measures to be adopted, a schedule and procedure for adoption and implementation, and a time limit for action by the state. A state should also identify specific indicators to be used to determine when the contingency measures need to be implemented. The maintenance plan must include a requirement that a state will implement all measures with respect to control of the pollutant that were contained in the SIP before redesignation of the area to attainment in accordance with section 175A(d).
In the July 15, 2015, submittal, Tennessee affirms that all programs instituted by the State and EPA will remain enforceable. The contingency plan included in the submittal includes a triggering mechanism to determine when contingency measures are needed and a process of developing and implementing appropriate control measures. A warning level response is triggered when a 3-month rolling average lead concentration of 0.135 μg/m
An action level response is triggered whenever the 3-month rolling average concentration of 0.143 μg/m
At least one of the following contingency measures will be adopted and implemented upon a triggering event:
• Improvements in applicable permitted control devices;
• Addition of secondary control devices or improvements in housekeeping and maintenance; and
• Other measures based on the cause of the elevated lead concentrations.
Any contingency measure implemented for an operating permitted source will require a compliance plan and expeditious compliance from the entity(ies) involved.
Based on the shutdown of the Exide Facility and the surrender of its operating permit, TDEC believes that the 2008 lead NAAQS can be achieved on a consistent basis in the Area. Because the Exide Facility has shut down, any possible exceedances of the lead NAAQS during any three month period after December 31, 2015 (the attainment date), are likely to be a result of fugitive emissions. The contingency measures discussed below will immediately take effect to offset any increase in air quality concentrations that are expected to result from emission increases due to the likelihood of fugitive soil dust disturbance and/or entrainment from the Exide Facility.
In the event of an exceedance, Exide will be required to conduct a twelve minute EPA Method 9 visible emissions reading on each lead source outlet by a certified reader every day, as well as a dye check on every filtration system that was controlling a lead source. These control measures will help to determine and detect the source of fugitive emissions so that the exceedances can be addressed immediately. Other contingency measures include restricting traffic to and from the facility and the daily application of wet suppression using a sprinkler frequency of 5 minutes every 30 minutes during daylight hours and 5 minutes every 60 minutes during nighttime hours twenty-four hours a day everyday which will serve to reduce fugitive dust emissions. Each of the contingency measures will continue for at least 90 days and remain in place until such time as TDEC has determined that they are no longer needed. In addition to the identified contingency measures, if an exceedance of the NAAQS occurs during any three month period after December 31, 2015 (the attainment date), within 120 days, the facility will submit an investigative study identifying the source(s) contributing to the exceedance. Exide will also develop and prepare a strategy to eliminate the likelihood of another exceedance. The 120-day review period will consist of a 30-day evaluation period immediately following a violation and then up to 90-day consultation period with the facility to determine the best course of action.
EPA has preliminarily concluded that the maintenance plan adequately addresses the five basic components of a maintenance plan: The attainment emissions inventory, maintenance demonstration, monitoring, verification of continued attainment, and a contingency plan. Therefore, EPA proposes to determine that the maintenance plan for the Area meets the requirements of section 175A of the CAA and proposes to incorporate the maintenance plan into the Tennessee SIP.
EPA is taking four separate but related actions regarding the redesignation request and associated SIP revision for the Bristol Area.
First, EPA is proposing to determine that the State's Subpart 1 RACM determination for the Area meets the requirements of CAA section 172(c)(1) and to incorporate this RACM determination into the SIP.
Second, EPA is proposing to determine, based upon review of quality-assured and certified ambient monitoring data for the 2012-2014 period and upon review of preliminary
Third, EPA proposing to approve the maintenance plan for the Area and to incorporate it into the SIP. As described above, the maintenance plan demonstrates that the Area will continue to maintain the 2008 lead NAAQS through 2026.
Fourth, EPA is proposing to approve Tennessee's request for redesignation of the Area from nonattainment to attainment for the 2008 lead NAAQS contingent upon final action approving the State's Subpart 1 RACM determination into the SIP. If finalized, approval of the redesignation request for the Bristol Area would change the official designation the portion of Sullivan County bounded by a 1.25 kilometer radius surrounding the UTM coordinates 4042923 meters E, 386267 meters N, Zone 17, which surrounds the Exide Facility, as found at 40 CFR part 81, from nonattainment to attainment for the 2008 lead NAAQS.
Under the CAA, redesignation of an area to attainment and the accompanying approval of a maintenance plan under section 107(d)(3)(E) are actions that affect the status of a geographical area and do not impose any additional regulatory requirements on sources beyond those imposed by state law. A redesignation to attainment does not in and of itself create any new requirements, but rather results in the applicability of requirements contained in the CAA for areas that have been redesignated to attainment. Moreover, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations.
• Are not significant regulatory actions subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• do not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• are certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• do not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• do not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• are not economically significant regulatory actions based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• are not significant regulatory actions subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• are not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• will not have disproportionate human health or environmental effects under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Lead, Reporting and recordkeeping requirements.
Environmental protection, Air pollution control.
42 U.S.C. 7401
Legal Services Corporation.
Further notice of proposed rulemaking.
The Legal Services Corporation (LSC or Corporation) proposes to revise its regulations governing subgrants to third parties. LSC published a Notice of Proposed Rulemaking (NPRM) on April 20, 2015, 80 FR 21692. In response to the NPRM, LSC received comments from five organizations. The commenters requested that LSC reconsider some of the proposed changes to the regulations. LSC has considered the comments and now proposes additional revisions to the rules. In this Further Notice of Proposed Rulemaking (FNPRM), LSC seeks comments on five proposed revisions to the NPRM.
Comments must be submitted by June 10, 2016.
You may submit comments by any of the following methods:
Stefanie K. Davis, Assistant General Counsel, Legal Services Corporation, 3333 K Street NW., Washington, DC 20007, (202) 295-1563 (phone), (202) 337-6519 (fax),
LSC provided a more complete history of this rulemaking in the April 20, 2015 NPRM. 80 FR 21692, Apr. 20, 2015. In brief, LSC initiated this rulemaking to address an issue identified by LSC's Office of Inspector General (OIG) through an audit of the Corporation's Technology Initiative
LSC initiated this rulemaking in 2012 to resolve the conflict of opinions. In 2015, Management proposed expanding this rulemaking to update these rules more comprehensively. On April 12, 2015, the Operations and Regulations Committee (Committee) of the Board voted to recommend that the Board approve publication of an NPRM in the
LSC received five comments during the comment period. One LSC-funding recipient, Northwest Justice Project (NJP), and one non-LSC recipient, Metro Volunteer Lawyers (MVL), each submitted comments. The other three comments came from OIG, the National Legal Aid and Defender Association, through its Civil Policy Group and its Regulations and Policy Committee (NLADA), and the American Bar Association's Standing Committee on Legal Aid and Indigent Defense (SCLAID). In response to the comments received, LSC is considering several revisions to the proposed rule, including the ones described in this FNPRM.
On April 18, 2016, the Committee authorized publication of this FNPRM in the
The main purpose of this rulemaking is to clarify that part 1627 applies only to third-party awards made by a recipient for the provision of legal assistance.
NLADA and NJP both objected to the proposed definition. NLADA called the definition:
Both commenters recommended that LSC replace the phrase “activities or functions carried out to provide legal assistance” with “the delivery of legal assistance to eligible clients.” They both also recommended excluding “activities conducted by entities not directly involved in the delivery of legal assistance to eligible clients” from the definition. Finally, NLADA suggested that LSC expand the definition of
LSC agrees that its proposed definition of the term
Additionally, both NLADA and NJP would exclude “activities conducted by entities not directly involved in the delivery of legal assistance to eligible clients.” It is unclear whether they meant entities not directly involved in the recipient's delivery of legal assistance to eligible clients or not directly involved in the delivery of legal assistance at all. LSC did not intend to limit the types of organizations with which recipients may contract. Rather, the changes to the rule focus on the nature of the work that is the subject of the third-party agreement.
NLADA's proposal to include “provision of services under a special LSC grant project” in the definition of
Finally, NJP's inclusion of payments to experts “in support of recipients' delivery of legal assistance” suggests that the changes to the scope of the rule may not have been clear. LSC intended to limit the application of the subgrant rule to only those situations in which recipients provide funds to third parties to carry out legal assistance activities that recipients would otherwise be expected to provide. This limitation necessarily excludes contracts with experts who provide a service to recipients, whether the service is preparing the organization's taxes, developing software for an online intake system, or providing a recipient with technical expertise on a case.
LSC has found it difficult to redefine
In this FNPRM, LSC proposes to remove the proposed definition of
In the NPRM, LSC proposed to require that recipients support subgrant activities only with funds, rather than allowing for in-kind provision of property and services. 80 FR 21692, 21696, Apr. 20, 2015. With the exception of OIG, all commenters opposed the proposal. NLADA, NJP, MVL, and SCLAID all expressed concern that adopting this change would jeopardize longstanding private attorney involvement (PAI) arrangements between LSC recipients and bar associations or other legal aid providers because it would impose additional and unnecessary administrative burdens on both parties. They also opined that the proposal conflicts with the PAI rule, which explicitly allows recipients to support private attorneys by providing them with training, technical assistance, access to recipient facilities, and use of recipient libraries and other resources. 45 CFR 1614.4(b)(3). Their observations differed in some respects, but they all contended that the proposal had significant flaws.
NLADA “urge[d] LSC to carefully consider the possible adverse consequences the framework set out in [proposed § 1627.3(c)] may have on the ability of LSC funded programs to effectively carry out their mission to promote equal access to justice and provide high-quality civil legal assistance to low-income Americans.” They viewed the proposed rule as placing a “blanket prohibition on the provision of goods and services by recipients, that are in part or fully funded by LSC, to support an agreement with a third party to provide programmatic services.” If this is LSC's intent, they continued,
MVL quoted NLADA's response at length in its letter objecting to this proposal. MVL provided a detailed description of their relationship with Colorado Legal Services (CLS):
Colorado Legal Services provides support to MVL's mission through office space and intake personnel. CLS provides an in-kind donation of office space to house MVL's Executive Director, Family Law Court Program Coordinator, Legal Services Coordinator, Rovira Scholar (a fellowship position funded by a private benefactor), and the Program Assistant. Additionally, nearly all the cases that MVL handles are filtered first through CLS's intake team. CLS's intake team gathers essential information on the legal issues of prospective clients and passes that information to MVL to refer out to volunteer attorneys.
SCLAID expressed its opinion that the proposal is inconsistent with the PAI rule. More specifically, SCLAID was concerned that “collaborative relationships that have been established with bar associations whose pro bono programs have been housed at a recipient's office for years could be greatly harmed by requiring that the pro bono program now enter into a subgrant arrangement.” SCLAID stated that requiring bar-sponsored pro bono programs to enter into a subgrant and return some of the subgrant funds to the recipient for rent would be “overly burdensome and unnecessary.”
NJP criticized LSC's proposal as “seem[ing] to confuse cost allocation to PAI with the notion of a subgrant” and as creating “gross ambiguity” about
Upon consideration of the comments received, LSC agrees that requiring recipients to support subgrant activities only with funds is burdensome and inefficient. LSC understands that many recipients' most valuable assets may be property and did not intend to disrupt longstanding relationships with bar associations and other organizations that rely on exchanges of property for services to carry out their legal services programs. LSC remains concerned, however, about accountability for LSC-funded resources and ensuring that recipients are not using LSC-funded property or services to support organizations that engage in restricted activities. LSC proposes several revisions to part 1627 designed to allow recipients to continue providing other organizations LSC-funded office space and other property and services to carry out legal assistance activities consistent with the requirements of the LSC Act, LSC appropriations statutes, LSC's other governing statutes, and LSC's regulations.
First, LSC proposes to add a definition for the term property, which will encompass both real and personal property. Second, LSC proposes to remove proposed § 1627.3(c), which required recipients to support all subgrants with funds, rather than goods or services. Third, LSC proposes to redesignate the definition of the term
While considering whether to allow recipients to use goods and services purchased in whole or in part with LSC funds as the basis for subgrants, LSC also considered whether recipients should be required to seek prior approval of all such subgrants or only when the value of the goods or services supporting the subgrant exceeded a certain threshold. LSC understands that recipients have a wide range of arrangements with other organizations that assist in the recipients' delivery of legal assistance to eligible clients. Arrangements on one end of the spectrum could be quite limited and informal—for example, giving office space on a one-time basis to another legal aid provider to hold a legal information session on applying for public benefits. An example of an arrangement involving a greater investment of recipient resources would be one in which the recipient provides office space and administrative support to a bar association conducting a debt collection clinic for four hours every other Saturday. An arrangement representing a significantly greater investment of recipient resources would be housing another non-profit organization that takes referrals from the recipient and places the referrals with the organization's own roster of volunteers. While LSC must ensure accountability for the use of property or services acquired in whole or in part with LSC funds in all of these arrangements, the oversight tools that LSC uses may vary based on the amount of LSC-funded resources involved.
Under existing part 1627, all subgrants are subject to the prior approval requirement, regardless of cost. In calendar year 2015, recipients entered into 77 subgrants. Fifteen of the subgrants were for less than $10,000, with the smallest being for $2,000. Ten of the 77 subgrants originating in calendar year 2015 exceeded $100,000. LSC understands that recipients spend significant amounts of time and resources preparing subgrant applications for LSC's approval. LSC estimates that LSC itself spends between 10 and 20 work hours reviewing each subgrant application, with the time spent on the application varying based on the quality and complexity of the application and the necessity of involving several LSC offices in the review. LSC determined that, on balance, the burdens of prior approval on both sides do not outweigh the benefits of the increased oversight for subgrants costing $15,000 or more. Consequently, LSC proposes to redesignate paragraph (a) from the NPRM as paragraph (b) and introduce a new paragraph (a) establishing the thresholds for prior approval of subgrants.
LSC wishes to emphasize two points about the proposed prior approval threshold. The first is that all awards qualifying as subgrants under § 1627.3 are subject to 45 CFR part 1630 and the restrictions set forth at proposed § 1627.5. Although subgrants for less than $15,000 will no longer be subject to the prior approval requirement, they continue to be governed by part 1630 and § 1627.5. The second point is that judicare arrangements and contracts with private attorneys to provide legal assistance to recipients' clients are not subject to the proposed prior approval threshold in § 1627.4(a). LSC's longstanding policy, reflected in the NPRM, has been to consider such awards subgrants only when the cost of such awards exceeds $25,000. 80 FR 21692, 21695, Apr. 20, 2015. Although LSC sought comment in the NPRM about whether the threshold should be changed, LSC did not intend to change its policy toward these awards. Consequently, LSC will continue to consider judicare arrangements and contracts with private attorneys to provide legal assistance to a recipient's clients as subgrants only when such arrangements exceed the threshold stated in § 1627.2(e)(2) for such awards, which LSC proposed in the NPRM to set at $60,000. All subgrants defined in § 1627.2(e)(2) will require prior approval, consistent with LSC's longstanding policy.
In paragraph (a), LSC proposes to set the prior approval threshold at $15,000 for both cash and in-kind subgrants. LSC believes this amount represents a significant enough investment of LSC funding or LSC-funded property or services that LSC should have increased oversight over the award. In paragraph
LSC proposes a technical changes to § 1627.4(b) to reflect its decision to allow in-kind subgrants. In paragraph (b), LSC proposes to insert language stating that for all subgrants exceeding the $15,000 threshold, recipients must submit applications to LSC for prior written approval.
In the NPRM, LSC proposed to revise the rules governing the subgrant approval process. In paragraph (a), LSC proposed to link the subgrant approval process for Basic Field Grants more closely to the annual grant competition process. LSC also proposed to formalize the procedures for recipients seeking to make subgrants under LSC's special grant programs and those who need to make subgrants in the middle of a funding year. LSC also proposed to eliminate the provision deeming subgrants approved if LSC does not respond within the 45-day period
NLADA objected to LSC's proposal. NLADA stated that the proposal “leaves programs in a state of fiscal uncertainty as to subgrant agreements,” and recommended leaving the provision in the rule to “preserve[] an important backstop for recipients and subrecipients who depend on LSC-funding and who, without hearing in a timely fashion from LSC, may plan a budget as if the funding has been approved.” NLADA further argued that “it is important in keeping with LSC's focus on uniformity and consistent application of rules and regulations that all parties bear equitable burdens with regard to meeting LSC statutory and regulatory requirements.”
LSC disagrees with NLADA's recommendation to leave the existing rule in place. NLADA's comments do not reflect the greater assurance of a timely response provided by the consolidation of the Basic Field Grant competition and subgrant approval processes. Nor do they acknowledge that responsible grants management practices do not permit expending or allowing the expenditure of funds without the approval of the funding agency.
Although it is not binding on LSC, we look to the prior approval provisions of 2 CFR part 200 for guidance. The Uniform Guidance describes certain types of costs for which agencies may require prior written approval. 2 CFR 200.308. Grantees must obtain prior approval before incurring any of the listed costs, unless the awarding agency waives the requirement.
LSC considered four options for responding to NLADA's comments. The first was to retain the language proposed in the NPRM. The second was to reinstate the existing rule in its entirety. The third was to reinstate the 45-day limit, but include a provision stating that if LSC does not respond, the subgrant is deemed denied. The last option was to include either a waiver provision or a notice provision similar to the ones provided in the Uniform Guidance.
LSC determined that waiving approval for subgrants was not an appropriate solution. LSC must exercise appropriate oversight over recipients' use of its funds, particularly when the recipient proposes to give a significant amount of funds to a third party to carry out legal assistance activities. LSC did not believe that it would be acting as a responsible steward of appropriated funds if it allowed recipients to make subgrants above the proposed $15,000 threshold amount without LSC's having approved the proposal. Nor did LSC believe that retaining the current rule demonstrates appropriate grants management policy because it would allow a recipient to devote a significant amount of LSC-funded resources to a subgrant absent LSC's explicit approval. LSC also did not think that restoring the 45-day time frame for approving subgrants with a provision deeming the subgrant denied, rather than approved, was a proper solution. This solution seemed unnecessarily negative and uninformative because it would leave a recipient wondering if its proposal was flawed and LSC simply had not told the recipient what it needed to do to fix the proposal or if LSC had reviewed the proposal at all.
LSC proposes to respond to NLADA's comments by adopting a notice provision similar to the one used by OMB in the Uniform Guidance. LSC proposes to include in the notice described in paragraph (b) a statement that if LSC has not responded to a recipient's request for approval of a subgrant under paragraph (b)(2) or (b)(3) within the number of days specified in the notice, LSC will inform the recipient in writing of the date when the recipient may expect the decision. The notice will be given only for subgrant approvals requested as part of a special grant or during the mid-year grant process. LSC does not propose to include a similar provision for subgrant approvals requested during the Basic Field Grant competition process because the regulation already includes notification deadlines. According to proposed § 1627.4(a)(1)(ii), LSC will inform a recipient whether LSC has approved, denied, or is suggesting modifications to the subgrant at or about the same time as LSC informs the recipient of its decision on the recipient's application for Basic Field Grant funding. 80 FR 21692, 21699, Apr. 20, 2015.
In the NPRM, LSC proposed to transfer existing 45 CFR 1610.7, which contains the requirements applicable to transfers of LSC funds, to part 1627 and redesignate it as § 1627.5. LSC also proposed to revise the existing timekeeping requirement in § 1610.7(c)
NJP opposed the proposal for two reasons. First, NJP argued that “private attorney subrecipients must sufficiently document their time spent on recipient client activities to justify billings and payment under a fee-for-service contract.” NJP opined that because private attorney subrecipients have their own timekeeping systems, there is no need for them to develop a timekeeping system that complies with part 1635. Second, NJP argued that private attorneys would likely be both unwilling to allocate time to LSC-defined categories of cases, matters, and supporting activities and unwilling to agree to make their personal time records and timekeeping systems subject to examination by auditors and LSC representatives. NJP asserted that requiring private attorneys to make their private records available to LSC auditors and reviewers would “create a significant disincentive” for private attorneys to participate in judicare or other fee-for-service arrangements.
NLADA objected to the proposal as a burdensome, one-size-fits-all approach contrary to LSC's interests in maximizing grantees' efficiency and effectiveness and encouraging collaborations with other organizations. NLADA asserted that “[i]mposing one standard time keeping requirement for all subrecipients, who maintain accountability with their own timekeeping system, is counter-productive and will harm recipient's [sic] ability to maintain relationships with subrecipients who are unable or unwilling to conform their own timekeeping system to LSC requirements.” NLADA urged LSC to adopt a “flexible option” that would ensure accountability for the use of LSC funds without imposing burdensome requirements on subrecipients of LSC funds.
LSC understands NLADA's and NJP's concerns about the impact of the proposed rule on subrecipients that have their own timekeeping systems in place. LSC agrees that requiring such subrecipients to comply with LSC's particular timekeeping requirements may not be necessary to ensure that time subrecipients spend providing legal assistance and legal information is accounted for appropriately. Regardless of whether a subrecipient already has a timekeeping system in place, LSC believes that some level of timekeeping by either the subrecipient or the recipient is needed.
LSC considered three options for responding to the comments. The first was to keep the proposed language without change. The second was to draft a rule providing minimum standards for timekeeping that LSC believes would provide it with the information it needs to ensure that subgrant funds are properly accounted for, but that does not prescribe how the recipient or subrecipient keeps time. The third option was to adopt part 1635-compliant timekeeping as the default, but to allow recipients to seek approval from LSC for an alternate timekeeping method that will ensure accountability for the use of subgrant funds. This option was similar to language LSC proposed deleting from existing § 1627.3(c) that authorized recipients and subrecipients to propose alternative auditing methods. LSC proposed deleting that language simply because it had never been used, rather than because it was ineffective.
LSC proposes adopting the second option. In paragraph (c), LSC proposes requiring that recipients be able to show how much time subrecipient attorneys and paralegals spent on cases and matters and aggregate information on pending and closed cases by legal problem type. LSC does not propose to require, however, that the subrecipient collect the information or otherwise dictate how the recipient and subrecipient collect and maintain the information. LSC proposes to leave those decisions to the recipient and subrecipient to negotiate as part of the subgrant agreement.
LSC proposes one technical change to § 1627.5(d) as proposed in the NPRM. To reflect LSC's decision to allow in-kind subgrants, LSC proposes to include language stating that the prohibitions and requirements of part 1610 apply only to the subgranted funds, goods, or services when the subgrant is for the sole purpose of funding private attorney involvement activities.
Grant programs, Legal services.
For the reasons stated in the preamble, the Legal Services Corporation proposes to amend 45 CFR part 1627, as proposed to be amended at 80 FR 21692, April 20, 2015, as follows:
42 U.S.C. 2996g(e).
The revisions and additions read as follows:
(b)
(c)
(d)
(e)(1)
(2)
(a) In determining whether an agreement between a recipient and another entity should be considered a subgrant or a procurement contract, the substance of the relationship is more important than the form of the agreement. All of the characteristics listed in paragraph (b) of this section
(b) Characteristics that support the classification of the agreement as a subgrant include when the other entity:
(2) Has its performance measured in relation to whether objectives of the LSC grant were met;
(3) Has responsibility for programmatic decision-making regarding the delivery of legal assistance under the recipient's LSC grant;
(5) In accordance with its agreement, uses LSC funds or property or services acquired in whole or in part with LSC funds, to carry out a program for a public purpose specified in LSC's governing statutes and regulations, as opposed to providing goods or services for the benefit of the recipient.
The revisions and additions read as follows:
(a)
(2)
(ii) The valuation of the subgrant, either by fair market value or actual cost to the recipient of property or services, must be documented and to the extent feasible supported by the same methods used internally by the grantee.
(b)
(5)
(ii) If a subgrant did not require prior approval, and the recipient proposes a change that will cause the total value of the subgrant to exceed the threshold for prior approval, the recipient must obtain LSC's prior written approval before making the change.
(d) * * *
(2) The recipient must ensure that the subrecipient properly spends, accounts for, and audits funds or property or services acquired in whole or in part with LSC funds received through the subgrant.
(g)
(2) If accounting for in-kind subgrants is not practicable, a recipient may convert the subgrant to a cash payment and follow the accounting procedures in paragraph (d) of this section.
(c)
(1) Time spent on each case or matter by date and in increments not greater than one-quarter of an hour;
(2) The unique case name or identifier for each case;
(3) The category of action on which time was spent for each matter; and
(4) The legal problem type for each case or matter with a timekeeping system able to aggregate time record information on both closed and pending cases by legal problem type.
(d)
(2) Any funds or property or services acquired in whole or in part with LSC funds and used by a recipient as payment for a PAI subgrant are deemed LSC funds for purposes of this paragraph.
(b) The subrecipient must audit any funds or property or services acquired in whole or in part with LSC funds provided by the recipient under a subgrant in its annual audit and supply a copy of this audit to the recipient. The recipient must either submit the relevant part of this audit with its next annual audit or, if an audit has been recently submitted, submit it as an addendum to that recently submitted audit.
Department of Energy.
Notice of proposed rulemaking and opportunity for comment.
The Department of Energy (DOE) is proposing to amend the Department of Energy Acquisition Regulation (DEAR) to address the applicability of Executive Order 13495 as implemented by Federal Acquisition Regulation (FAR) subpart 22.12 to its management and operating contracts and subcontracts under such contracts. DOE is also proposing to increase dollar thresholds in its contractor purchasing system clause for management and operating contracts to conform to FAR subpart 28.1. Finally, DOE is revising the DEAR in accordance with a class deviation addressing Buy American Act non-availability determinations.
Written comments on the proposed rulemaking must be received on or before close of business May 26, 2016.
You may submit comments, identified by DEAR: Nondisplacement of Qualified Workers and RIN 1991-AC03, by any of the following methods:
•
•
•
Lawrence Butler at (202) 287-1945 or by email
The Department of Energy Acquisition Regulation (DEAR) does not presently address the applicability of the new FAR subpart 22.12, Nondisplacement of Qualified Workers Under Service Contracts, and the associated Department of Labor regulations at title 29 of the Code of Federal Regulations, to subcontracts under DOE's management and operating contracts. This proposed rule clarifies that FAR subpart 22.12 applies to subcontracts under the Department's management and operating contracts. A management and operating contract requires a contractor to operate, maintain, and support a Government-owned or -controlled research, development, special production, or testing establishment which is devoted to a major program(s) of the contracting agency. Service subcontracts awarded by management and operating contractors,
Additionally, DEAR section 970.5244-1, Contractor purchasing system, paragraphs (f)(1) through (f)(3) do not presently reflect the applicable dollar threshold in FAR 28.102-2(b) and (c), so this proposed rule replaces the dollar amount in these paragraphs with reference to title 48 of the Code of Federal Regulations, sections 28.102-2(b) and (c), as appropriate.
Section 970.5244-1, paragraph (g) requires contractor purchasing systems on management and operating contracts to comply with the Buy American Act. Pursuant to a DEAR class deviation dated August 29, 2011, the proposed rule increases the dollar threshold in this paragraph from $100,000 to $500,000 for: (1) Determinations of individual item non-availability requiring the prior concurrence of the Head of Contracting Activity (HCA); and (2) HCA authorization of management and operating contractors with approved purchasing systems to make determinations of non-availability for individual items.
DOE proposes to amend the DEAR as follows:
1. Section 970.2212 is added to clarify that FAR subpart 22.12 is applicable to subcontracts of management and operation contractors.
2. Section 970.5244-1, paragraph (f) is revised to replace all dollar amounts with references to title 48 of the Code of Federal Regulations, sections 28.102-2(b) and (c), as appropriate.
3. Section 970.5244-1, paragraph (g) is revised to increase the dollar threshold from $100,000 to $500,000.
4. Section 970.5244-1, paragraph (x) is revised to add the clause prescribed in FAR 22.1207 as item (7).
Today's regulatory action has been determined to be a “significant regulatory action” under Executive Order 12866, “Regulatory Planning and Review,” (58 FR 51735, October 4, 1993). Accordingly, this proposed rule was reviewed under that Executive Order by the Office of Information and Regulatory Affairs (OIRA) of the Office of Management and Budget (OMB).
DOE has also reviewed this regulation pursuant to Executive Order 13563, issued on January 18, 2011 (76 FR 3281, January 21, 2011). Executive Order 13563 is supplemental to and explicitly reaffirms the principles, structures, and definitions governing regulatory review established in Executive Order 12866. To the extent permitted by law, agencies are required by Executive Order 13563 to: (1) Propose or adopt a regulation only upon a reasoned determination that its benefits justify its costs (recognizing that some benefits and costs are difficult to quantify); (2) tailor regulations to impose the least burden on society, consistent with obtaining regulatory objectives, taking into account, among other things, and to the extent practicable, the costs of cumulative regulations; (3) select, in choosing among alternative regulatory approaches, those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity); (4) to the extent feasible, specify performance objectives, rather than specifying the behavior or manner of compliance that regulated entities must adopt; and (5) identify and assess available alternatives to direct regulation, including providing economic incentives to encourage the desired behavior, such as user fees or marketable permits, or providing information upon which choices can be made by the public.
DOE emphasizes as well that Executive Order 13563 requires agencies to use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible. In its guidance, the Office of Information and Regulatory Affairs has emphasized that such techniques may include identifying changing future compliance costs that might result from technological innovation or anticipated behavioral changes. DOE believes that today's proposed rule is consistent with these principles, including the requirement that, to the extent permitted by law, agencies adopt a
With respect to the review of existing regulations and the promulgation of new regulations, section 3(a) of Executive Order 12988, “Civil Justice Reform,” (61 FR 4729, February 7, 1996), imposes on Executive agencies the general duty to adhere to the following requirements: (1) Eliminate drafting errors and ambiguity; (2) write regulations to minimize litigation; and (3) provide a clear legal standard for affected conduct, rather than a general standard, and promote simplification and burden reduction. With regard to the review required by section 3(a), section 3(b) of Executive Order 12988 specifically requires that Executive agencies make every reasonable effort to ensure that the regulation: (1) Clearly specifies the preemptive effect, if any; (2) clearly specifies any effect on existing Federal law or regulation; (3) provides a clear legal standard for affected conduct while promoting simplification and burden reduction; (4) specifies the retroactive effect, if any; (5) adequately defines key terms; and (6) addresses other important issues affecting clarity and general draftsmanship under any guidelines issued by the United States Attorney General. Section 3(c) of Executive Order 12988 requires Executive agencies to review regulations in light of applicable standards in section 3(a) and section 3(b) to determine whether they are met or if it is unreasonable to meet one or more of them. DOE has completed the required review and determined that this proposed rule meets the relevant standards of Executive Order 12988.
This proposed rule has been reviewed under the Regulatory Flexibility Act, 5 U.S.C. 601
This proposed rule would not have a significant economic impact on small entities because it imposes no significant burdens. The proposed rule clarifies that FAR subpart 22.12 applies to subcontracts under the Department's management and operating (M&O) contracts. M&O subcontractors, including any small entities, who perform service contracts are currently required to follow the policies and procedures of FAR subpart 22.12. The proposed rule merely clarifies that M&O subcontractors are not exempt from the pre-existing policy. The other changes contained in the proposed rule update dollar thresholds to conform to the FAR or a DEAR class deviation. Those changes will result in fewer burdens to small entities because they raise the thresholds at which certain Buy American, bonds, and other financial protection requirements become applicable.
Accordingly, DOE certifies that this proposed rule would not have a significant economic impact on a substantial number of small entities, and, therefore, no regulatory flexibility analysis is required and none has been prepared.
This proposed rule does not impose a collection of information requirement subject to the Paperwork Reduction Act, 44 U.S.C. 3501
DOE has concluded that promulgation of this proposed rule falls into a class of actions which would not individually or cumulatively have significant impact on the human environment, as determined by DOE's regulations (10 CFR part 1021, subpart D) implementing the National Environmental Policy Act (NEPA) of 1969 (42 U.S.C. 4321
Executive Order 13132, 64 FR 43255 (August 4, 1999), imposes certain requirements on agencies formulating and implementing policies or regulations that preempt State law or that have federalism implications. Agencies are required to examine the constitutional and statutory authority supporting any action that would limit the policymaking discretion of the States and carefully assess the necessity for such actions. The Executive Order requires agencies to have an accountability process to ensure meaningful and timely input by state and local officials in the development of regulatory policies that have federalism implications. On March 14, 2000, DOE published a statement of policy describing the intergovernmental consultation process it will follow in the development of such regulations (65 FR 13735). DOE has examined the proposed rule and has determined that it does not preempt State law and does 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. No further action is required by Executive Order 13132.
The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) generally requires a Federal agency to perform a written assessment of costs and benefits of any rule imposing a Federal mandate with costs to State, local or tribal governments, or to the private sector, of $100 million or more. This rulemaking proposes changes that do not alter any substantive rights or obligations. This proposed rule does not impose any mandates.
Section 654 of the Treasury and General Government Appropriations Act, 1999 (Pub. L. 105-277), requires Federal agencies to issue a Family Policymaking Assessment for any rulemaking or policy that may affect family well-being. This proposed rulemaking will have no impact on the autonomy or integrity of the family as an institution. Accordingly, DOE has concluded that it is not necessary to prepare a Family Policymaking Assessment.
Executive Order 13211, Actions Concerning Regulations That
The Treasury and General Government Appropriations Act, 2001 (44 U.S.C. 3516, note) provides for agencies to review most disseminations of information to the public under guidelines established by each agency pursuant to general guidelines issued by OMB. OMB's guidelines were published at 67 FR 8452 (February 22, 2002), and DOE's guidelines were published at 67 FR 62446 (October 7, 2002). DOE has reviewed this proposed rule under the OMB and DOE guidelines and has concluded that it is consistent with applicable policies in those guidelines.
Issuance of this proposed rule has been approved by the Office of the Secretary of Energy.
Government procurement.
For the reasons set out in the preamble, the Department of Energy is proposing to amend chapter 9 of title 48 of the Code of Federal Regulations as set forth below.
42 U.S.C. 2201; 2282a; 2282b; 2282c; 42 U.S.C. 7101
48 CFR subpart 22.12 is applicable to subcontracts under the Department's management and operating contracts (see 970.5244-1(x)).
The revisions and additions read as follows:
(f) * * * (1) The Contractor shall require performance bonds in penal amounts as set forth in 48 CFR 28.102-2(b)(1) for all fixed-price and unit-priced construction subcontracts in excess of the amount set forth in 48 CFR 28.102-2(b). * * *
(2) For fixed-price, unit-priced and cost-reimbursement construction subcontracts in excess of the amount set forth in 48 CFR 28.102-2(b), a payment bond shall be obtained on Standard Form 25A modified to name the Contractor as well as the United States of America as obligees. The penal amounts shall be determined in accordance with 48 CFR 28.102-2(b)(2).
(3) For fixed-price, unit-priced and cost-reimbursement construction subcontracts in an amount falling within the range in 48 CFR 28.102-2(c), the Contractor shall select two or more of the payment protections in 48 CFR 28.102-1(b), giving particular consideration to the inclusion of an irrevocable letter of credit as one of the selected alternatives.
(g)
(x) * * *
(7) Nondisplacement of Qualified Workers clause prescribed in 48 CFR 22.1207.
Agricultural Marketing Service, USDA.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), this notice announces the Agricultural Marketing Service's (AMS) intention to request approval, from the Office of Management and Budget (OMB), for an extension and revision to the currently approved information collection of the Federal Seed Act Labeling and Enforcement.
Comments must be received by June 27, 2016.
Comments should either be submitted electronically at
Ernest L. Allen, SRTD, Livestock, Poultry, and Seed Program, AMS, USDA; Telephone: (704) 810-8871, or Email:
The FSA, Title II, is a truth-in-labeling law that regulates agricultural and vegetable planting seed in interstate commerce. Seed subject to the FSA must be labeled with certain quality information and Title II requires that information to be truthful. The FSA prohibits the interstate shipment of falsely advertised seed and seed containing noxious-weed seeds that are prohibited from sale in the State into which the seed is being shipped.
No unique forms are required for this information collection. The FSA requires seed in interstate commerce to be tested and labeled. Once seed enters a State, it must comply with the testing and labeling requirements of that State's seed law. The testing and labeling required by FSA nearly always satisfies the State's testing and labeling requirements. The receiving, sales, cleaning, testing, and labeling records required by FSA are also records that the shipper would normally keep in good business practice.
The information in this collection is the minimum information necessary to effectively carry out the enforcement of FSA. With the exception of the requirements for entering a new variety into a State seed certification program (set forth separately below), the information collection is entirely recordkeeping rather than reporting.
Comments are invited on: (1) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) the accuracy of the agency's estimate of the burden of the proposed collection of information including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
All responses to this notice will be summarized and included in the request for OMB approval. All comments will become a matter of public record.
Agricultural Marketing Service, USDA.
Notice of renewal and merge request.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), this notice announces the Agricultural Marketing Service's (AMS) intention to request approval from the Office of Management and Budget (OMB) for an extension and revision to the currently approved information collection of 0581-0125 Regulations Governing Inspection Certification of Fresh & Processed Fruits, Vegetables, & Other Products 7 CFR part 51 and 52, and request approval to merge the previously approved, 0581-0292 Specialty Crops Inspection Division Order Forms into 0581-0125 Regulations Governing Inspection Certification of Fresh & Processed Fruits, Vegetables, & Other Products 7 CFR part 51 and 52. By this action, all services and related forms used to collect information will be in one collection with no duplicative burden.
Comments on this notice must be received by June 27, 2016 to be considered.
Interested persons are invited to submit comments concerning this notice. Comments should be submitted online at
Contact ToiAyna Thompson, Management Support Staff, Specialty Crops Inspection Division, Specialty Crops Program, U.S. Department of Agriculture, STOP 0247, 1400 Independence Avenue SW., Washington, DC 20250-0250; telephone: (202) 720-0867; FAX: (202) 690-3824; email
With this request for an Extension and Revision of a Currently Approved Information Collection and a Merge Request, we are combining the totals for both collections in this renewal collection.
This is a request for renewal of OMB 0581-0125 and subsequent merger of 0581-0292 Specialty Crops Inspection Division Order Forms into 0581-0125 Regulations Governing Inspection Certification of Fresh & Processed Fruits, Vegetables, & Other Products 7 CFR part 51 and 52.
All comments received will be available for public inspection during regular business hours at the same address.
All responses to this notice will be summarized and included in the request for OMB approval. All comments will become a matter of public record.
Agricultural Marketing Service, USDA.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-20), this notice announces the Agricultural Marketing Service's (AMS) intention to request Office of Management and Budget approval of a revised information collection that combined four previously approved collections into a single information collection. AMS recently consolidated its grant programs into one Grants Division. Due to this consolidation, AMS intends to combine the following collections, 0581-0235 “Farmers Market Promotion Program,” 0581-0240 “Federal-State Market Improvement Program,” 0581-0248 “Specialty Crop Block Grant Program-Farm Bill,” “Specialty Crop Multi-State Program,” and 0581-0287 “Local Food Promotion Program.” This revised collection will be retitled 0581-0240 “AMS Grant Programs,” and increase efficiency among programs and reduce the burden on the public.
Comments on this notice must be received by June 27, 2016 to be assured of consideration.
AMS Transportation and Marketing Program, 1400 Independence Avenue SW., Stop 0264, Washington, DC 20250-0264.
Trista Etzig, Grants Division Director; Telephone: (202) 720-8356; Email:
The Farmers' Market Promotion Program (FMPP) and Local Food Promotion Program (LFPP) are components of the “Farmers' Market and Local Food Promotion Program (FMLFPP).” FMPP was created through an amendment of the Farmer-to-Consumer Direct Marketing Act of 1976 (7 U.S.C. 3001-3006). The Agriculture Act of 2014 (Pub. L. 113-79) (2014 Farm Bill) further amended the Farmer-to-Consumer Direct Marketing Act of 1976 (7 U.S.C. 3005) by expanding and renaming the FMPP to FMLFPP. For fiscal years 2014-2018, the 2014 Farm Bill provides $30 million in funding for the FMLFPP. On an annual basis, approximately $15 million will be made available for farmer-to-consumer direct marketing projects under the FMPP component of FMLFPP, and approximately $15 million will be made available for local and regional food business enterprise projects under the LFPP component of FMLFPP. The grants authorized by the FMPP are targeted to help improve and expand domestic farmers' markets, roadside stands, community-supported agriculture programs, agritourism activities, and other direct producer-to-consumer marketing opportunities. The grants authorized under the LFPP support the development and expansion of local and regional food business enterprises to increase domestic consumption of, and access to, locally and regionally produced agricultural products, and to develop new market opportunities for farm and ranch operations serving local markets.
The Specialty Crop Block Grant Program (SCBGP) operates pursuant to the authority of Section 101 of the Specialty Crops Competitiveness Act of 2004 (7 U.S.C. 1621 note); amended by Section 10010 of the Agriculture Act of 2014 (2014 Farm Bill). Pursuant to 7 U.S.C. 1621 note, the Secretary of Agriculture has the authority to “make grants to States for each of the fiscal years 2014 through 2018 to be used by State departments of agriculture solely to enhance the competitiveness of specialty crops.” The SCBGP works to increase the competitiveness of specialty crops. The 2014 Farm Bill made mandatory outlays for fiscal years 2014 through 2017 in the amount of $72.5 million, and $85 million in 2018. The Specialty Crop Multi-State Program (SCMP) also operates pursuant to the authority of Section 101 of the Specialty Crops Competitiveness Act of 2004 (7 U.S.C. 1621 note); amended by Section 10010 of the Agriculture Act of 2014 (2014 Farm Bill). The Specialty Crop Competitiveness Act provides the Secretary authority to make available funds for “making grants to multistate projects.” The 2014 Farm Bill made outlays available for fiscal years 2014 through 2018 in the amount of $1 million for the first year, and increasing by $1 million for each subsequent year so that $5 million will be available in 2018.
The Federal-State Marketing Improvement Program (FSMIP) operates pursuant to the authority of the AMA. Section 204(b) of the AMA (7 U.S.C. 1623(b)) authorizes the Secretary of Agriculture to make available funds to State Departments of Agriculture, State bureaus and departments of markets, State agricultural experiment stations, and other appropriate State agencies for cooperative projects in marketing services and in marketing research to
Because these are all voluntary programs, respondents request or apply for the specific grant program they select, and in doing so, they provide information. The Agency is the primary user of the information. The information collected is needed to certify that grant participants are complying with applicable program regulations, and the data collected is the minimum information necessary to effectively carry out the requirements of the program. The information collection requirements in this request are essential to carry out the intent of the AMA, to provide the respondents the type of service they request, and to administer the programs. The burden of the AMS Grant Programs is as follows:
Comments are invited on: (1) Whether the new collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) the accuracy of the agency's estimate of the burden of the new collection of information including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
All responses to this notice will be summarized and included in the request for OMB approval. All comments will become a matter of public record.
Agricultural Marketing Service, USDA.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), this notice announces the Agricultural Marketing Service's (AMS) intention to request approval from the Office of Management and Budget (OMB) for an extension and revision of the currently approved information collection for the Seed Service Testing Program.
Comments received by June 27, 2016.
Comments should be submitted electronically at
Ernest L. Allen, SRTD, Livestock, Poultry, and Seed Program, AMS, USDA; Telephone: (704) 810-8871, or Email:
The purpose of the voluntary program is to promote efficient, orderly marketing of seeds, and assist in the development of new and expanding markets. Under the program, samples of agricultural and vegetable seeds submitted to AMS are tested for factors such as purity and germination at the request of the applicant for the service. In addition, grain samples, submitted at the applicant's request, are examined for the presence of certain weed and crop seed by the Grain Inspection, Packers, and Stockyards Administration. A Federal Seed Analysis Certificate or an ISTA Orange International Seed Lot Certificate is issued giving the test results. Most of the seeds tested under this program are scheduled for export. Many importing countries require a Federal Seed Analysis Certificate on U.S. seed.
The only information collected is information needed to provide the service requested by the applicant. This includes information to identify the seed being tested, the seed treatment (if treated with a pesticide), the tests to be performed, and any other appropriate information required by the applicant to be on the Federal Seed Analysis Certificate or the ISTA Orange International Seed Lot Certificate.
The number of seed companies applying for the seed testing service has decreased from 76 to 55 during the past 3 years due to a decrease in the number of companies exporting seed. The total number of samples received for testing has also decreased. Therefore, the average burden for information collection has decreased for seed companies applying for the service.
The information in this collection is used only by authorized AMS employees to track, test, and report results to the applicant.
All responses to this notice will be summarized and included in the request for OMB approval. All comments will become a matter of public record.
The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments are requested regarding (1) whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
Comments regarding this information collection received by May 26, 2016 will be considered. Written comments should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), New Executive Office Building, 725 17th Street NW., Washington, DC 20502. Commenters are encouraged to submit their comments to OMB via email to:
An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
The information collected is used to manage the travel and stipend payments to panel reviewers and provide well-organized feedback to ARS's researchers about their projects. If information were not collected, ARS would not meet the administrative or legislative requirements of the Peer Review Process as mandated by Public Law 105-185; Section 103(d).
The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments are requested regarding (1) whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
Comments regarding this information collection received by May 26, 2016 will be considered. Written comments should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), New Executive Office Building, 725 17th Street NW., Washington, DC 20502. Commenters are encouraged to submit their comments to OMB via email to:
An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments are requested regarding (1) whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
Comments regarding this information collection received by May 26, 2016 will be considered. Written comments should be addressed to: Desk Officer for
An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
Forest Service, USDA.
Notice of meeting.
The Forest Resource Coordinating Committee (Committee) will meet via teleconference. The Committee is established consistent with the Federal Advisory Committee Act of 1972 (FACA) (5 U.S.C. App. II), and the Food, Conservation, and Energy Act of 2008 (the Act) (Pub. L. 110-246). Committee information can be found at the following Web site at
The teleconference will be held on June 15, 2016, from 12:00 p.m. to 1:30 p.m., Eastern Daylight Time (EDT).
All meetings are subject to cancellation. For status of the meeting prior to attendance, please contact the person listed under
The meeting will be held via teleconference. For anyone who would like to attend the teleconference, please visit the Web site listed under
Written comments may be submitted as described under
Andrea Bedell-Loucks, Designated Federal Officer, at 202-205-1190 or via email at
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.
The purpose of the meeting is to:
1. Review action items and timetable from the May meeting; and
2. Review outreach opportunities from presentations at the May meeting.
The teleconference is open to the public. However, the public is strongly encouraged to RSVP prior to the teleconference to ensure all related documents are shared with public meeting participants. The agenda will include time for people to make oral statements of three minutes or less. Individuals wishing to make an oral statement should submit a request in writing 10 days before the planned meeting 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 time requests for oral comments must be sent to Lori McKean, 1400 Independence Avenue SW., Mailstop 1123, Washington, DC 20250; or by email to
Forest Service, USDA.
Notice; request for comment.
In accordance with the Paperwork Reduction Act of 1995, the Forest Service is seeking comments from all interested individuals and organizations on the extension of the information collection, Secure Rural Schools Act.
Comments must be received in writing on or before June 27, 2016 to be assured of consideration. Comments received after that date will be considered to the extent practicable.
Comments concerning this notice should be addressed to David Bergendorf, National Secure Rural Schools Program Coordinator, USDA Forest Service, Washington Office—Yates Building, 1400 Independence Avenue, Mailstop #1158, Washington, DC 20250; all comments should identify OMB 0596-0220.
The public may inspect comments received at Web site:
David Bergendorf, National Secure Rural Schools Program Coordinator, by phone at 505-563-7117 or via email at
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.
The appropriate official of each participating county will be requested to report the amount of Title III funds expended in the applicable year in these categories as specified in the Act:
(1) To carry out authorized activities under the Firewise Communities Program;
(2) To reimburse the participating county for emergency services performed on Federal land and paid for by the participating county; and
(3) To develop community wildfire protection plans in coordination with the appropriate Secretary.
The information collection will identify the participating county, the year in which the expenditures were made, the name, title, and signature of the certifying official; and the date of the certification. The certification will include a statement that all expenditures were for uses authorized under section 302(a) of the Act and that the proposed uses were published and had a 45-day comment period and were submitted to the appropriate Secure Rural Schools Act resource advisory committee(s), if any, as described in Section 302(b) of the Act.
Beginning with the certification due on February 1, 2013, the information collection also will request the county to certify the amount of Title III funds received since October of 2008 that has not been obligated as of September 30th of the previous year. This collection is necessary in the certification due on February 1, 2014, to determine the amount of Title III funds that must be returned to the United States Treasury under section 304(b) of the Act. Collection of this information in 2013 is consistent with a recent audit of county uses of Title III funds by the Government Accountability Office
In summary, the February 1, 2013, information collection will certify Title III funds expended in calendar year 2012, and the amount of Title III funds not obligated as of September 30, 2012. The February 1, 2014, information collection will certify Title III funds expended in calendar year 2013 and the amount of Title III funds not obligated as of September 30, 2013.
The determination of who is the appropriate certifying official is at the discretion of the county and borough and will vary depending on county or borough organization. For unorganized boroughs in Alaska and for participating counties in Vermont, a state official may provide the information.
The information will be collected in the form of conventional correspondence such as a letter and, at the respondent's option, attached tables or similar graphic display. The Forest Service provides an optional form for the convenience of respondents. At the respondent's discretion, the information may be submitted by hard copy and/or electronically scanned and included as an attachment to electronic mail.
Under the Act, the first response was required by February 1, 2010 for funds expended in 2009. Responses are required by February 1st of the following year each year Title III funds are expended. The Act requires Title III funds to be obligated by September 30, 2018, or be returned to the U.S. Treasury; therefore, the funds are likely to be expended or returned in 2014 and the final certification of expenditures could be made by February 1, 2019.
The Department of the Interior and the Bureau of Land Management are also authorized to participate in this
Comment is invited on: (1) Whether this collection of information is necessary for the stated purposes and the proper performance of the functions of the agency, including whether the information will have practical or scientific utility; (2) the accuracy of the agency's estimate of the burden of the collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including the use of automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
All comments received in response to this notice, including names and addresses when provided, will be a matter of public record. Comments will be summarized and included in the request for Office of Management and Budget approval.
Rural Housing Service, USDA.
Notice.
This Notice announces a series of teleconference and/or web conference meetings regarding the U.S. Department of Agriculture (USDA) Section 538 Guaranteed Rural Rental Housing (GRRH) program, which are scheduled to occur during 2016 and 2017. This Notice also outlines suggested discussion topics for the meetings and is intended to notify the general public of their opportunity to participate in the teleconference and/or web conference meetings.
See
Monica Cole, Financial and Loan Analyst, at (202) 720-1251, fax: (844) 875-8075, or email:
The objectives of this series of teleconferences are as follows:
• Enhance the effectiveness of the Section 538 the GRRH program.
• Update industry participants and Rural Housing Service (RHS) staff on developments involving the Section 538 GRRH program.
• Enhance RHS' awareness of the market and other forces that impact the Section 538 GRRH program.
Topics to be discussed could include, but will not be limited to, the following:
• Updates on USDA's Section 538 GRRH program activities.
• Perspectives on the current state of debt financing and its impact on the Section 538 GRRH program.
• Enhancing the use of Section 538 GRRH program financing with the transfer and/or preservation of Section 515 developments.
• The impact of the Low Income Housing Tax Credits program changes on Section 538 GRRH program financing.
The dates and times for the teleconference and/or web conference meetings will be announced via email to parties registered as described below.
The Agency expects to accommodate each participant's preferred form of participation by telephone or via web link. However, if it appears that existing capabilities may prevent the Agency from accommodating all requests for one form of participation, each participant will be notified and encouraged to consider an alternative form of participation. Individuals who plan to participate and need reasonable accommodations or language translation assistance should inform Monica Cole within 10 business days in advance of the meeting date.
The U.S. Department of Agriculture prohibits discrimination in all of its programs and activities on the basis of race, color, national origin, age, disability, and where applicable, sex, marital status, familial status, parental status, religion, sexual orientation, political beliefs, genetic information, reprisal, or because all or part of an individual's income is derived from any public assistance program. (Not all prohibited bases apply to all programs.) Persons with disabilities who require alternative means for communication of program information (Braille, large print, audiotape, etc.) should contact USDA's TARGET Center at (202) 720-2600 (voice and TDD).
To file a complaint of discrimination, write to USDA, Assistant Secretary for Civil Rights, Office of the Assistant Secretary for Civil Rights, 1400 Independence Avenue SW., STOP 9410, Washington, DC 20250-9410, or call toll free at (866) 632-9992 (English) or (800) 877-8339 (TDD) or (866) 377-8642 (English Federal—Relay) or (800) 845-6136 (Spanish Federal—Relay). “USDA is an equal opportunity provider, employer, and lender.”
Givaudan Flavors Corporation (Givaudan) submitted a notification of proposed production activity to the FTZ Board for its facility in Cincinnati, Ohio within Subzone 46G. The notification conforming to the requirements of the regulations of the FTZ Board (15 CFR 400.22) was received on April 1, 2016.
The Givaudan facility is used for the production of flavor compounds. Pursuant to 15 CFR 400.14(b), FTZ activity would be limited to the specific foreign-status materials and components and specific finished products described in the submitted notification (as described below) and subsequently authorized by the FTZ Board.
Production under FTZ procedures could exempt Givaudan from customs duty payments on the foreign status components used in export production. On its domestic sales, Givaudan would be able to choose the duty rates during customs entry procedures that apply to cocoa food preparations, dairy food preparations, coffee food preparations, seasonings, sauces, alcoholic preparations for beverages, other food preparations with dairy, confectionary preparations without sugar, concentrated orange oil, concentrated lemon oil, flavor preparations for food or drinks without alcohol, flavor preparations for food or drinks with alcohol, perfume bases, and odiferous substances other than food or drink with perfume bases (duty rate ranges from free to 70.4c/kg + 8.5%) for the foreign status inputs noted below. Customs duties also could possibly be deferred or reduced on foreign status production equipment.
The materials sourced from abroad include: Benzaldehyde, vanillin, orange oil, concentrated orange oil, lemon oil, and concentrated lemon oil (duty rate ranges from 2.7% to 5.5%).
Public comment is invited from interested parties. Submissions shall be addressed to the FTZ Board's Executive Secretary at the address below. The closing period for their receipt is June 6, 2016.
A copy of the notification will be available for public inspection at the Office of the Executive Secretary, Foreign-Trade Zones Board, Room 21013, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230-0002, and in the “Reading Room” section of the FTZ Board's Web site, which is accessible via
For further information, contact Kathleen Boyce at
An application has been submitted to the Foreign-Trade Zones Board (the Board) by the Puerto Rico Trade & Export Company, grantee of FTZ 61, requesting subzone status for the facility of Rooms to Go (PR), Inc., located in Toa Baja, Puerto Rico. The application was submitted pursuant to the provisions of the Foreign-Trade Zones Act, as amended (19 U.S.C. 81a-81u), and the regulations of the Board (15 CFR part 400). It was formally docketed on April 20, 2016.
The proposed subzone (16.9 acres) is located at Road #2, 19.1 km, Candelaria Neighborhood, City of Toa Baja. The proposed subzone would be subject to the existing activation limit of FTZ 61. No authorization for production activity has been requested at this time.
In accordance with the Board's regulations, Camille Evans of the FTZ Staff is designated examiner to review the application and make recommendations to the Executive Secretary.
Public comment is invited from interested parties. Submissions shall be addressed to the Board's Executive Secretary at the address below. The closing period for their receipt is June 6, 2016. Rebuttal comments in response to material submitted during the foregoing period may be submitted during the subsequent 15-day period to June 20, 2016.
A copy of the application will be available for public inspection at the Office of the Executive Secretary, Foreign-Trade Zones Board, Room 21013, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230-0002, and in the “Reading Room” section of the Board's Web site, which is accessible via
An application has been submitted to the Foreign-Trade Zones (FTZ) Board by the West Cameron Port Commission, grantee of FTZ 291, requesting subzone status for the facility of G2 LNG LLC located in Cameron, Louisiana. The application was submitted pursuant to the provisions of the Foreign-Trade Zones Act, as amended (19 U.S.C. 81a-81u), and the regulations of the FTZ Board (15 CFR part 400). It was formally docketed on April 20, 2016.
The proposed subzone (766 acres) is located at 110 Gulf Beach Highway in Cameron, Louisiana. No authorization for production activity has been requested at this time.
In accordance with the FTZ Board's regulations, Camille Evans of the FTZ Staff is designated examiner to review the application and make recommendations to the FTZ Board.
Public comment is invited from interested parties. Submissions shall be addressed to the FTZ Board's Executive Secretary at the address below. The closing period for their receipt is June 6, 2016. Rebuttal comments in response to material submitted during the foregoing period may be submitted during the subsequent 15-day period to June 20, 2016.
A copy of the application will be available for public inspection at the Office of the Executive Secretary, Foreign-Trade Zones Board, Room 21013, U.S. Department of Commerce, 1401 Constitution Avenue NW.,
For further information, contact Camille Evans at
Notice of Issuance of an Amended Export Trade Certificate of Review to the Northwest Fruit Exporters of Washington (“NFE”), Application No. (84-26A12).
The Secretary of Commerce, through the Office of Trade and Economic Analysis (“OTEA”), issued an amended Export Trade Certificate of Review to NFE of California on March 21, 2016.
Joseph E. Flynn, Director, Office of Trade and Economic Analysis, International Trade Administration, by telephone at (202) 482-5131 (this is not a toll-free number) or email at
Title III of the Export Trading Company Act of 1982 (15 U.S.C. Sections 4001-21) authorizes the Secretary of Commerce to issue Export Trade Certificates of Review. An Export Trade Certificate of Review protects the holder and the members identified in the Certificate from State and Federal government antitrust actions and from private treble damage antitrust actions for the export conduct specified in the Certificate and carried out in compliance with its terms and conditions. The regulations implementing Title III are found at 15 CFR part 325 (2016).
OTEA is issuing this notice pursuant to 15 CFR 325.6(b), which requires the Secretary of Commerce to publish a summary of the certification in the
Description of Amendments to the Certificate:
1. Under the heading Products, add “fresh pears.”
2. Under the heading Export Trade Activities and Methods of Operation, add “fresh pears” to the subtitles of sections 1 and 3.
3. Add coverage for Export Trade Activities and Methods of Operation relating to “fresh pears” for the following existing Members of the Certificate (within the meaning of section 325.2(l) of the regulations (15 CFR 325.2(l)):
4. Add the following new Members of the Certificate (within the meaning of section 325.2(l) of the regulations (15 CFR 325.2(l)), for Export Trade Activities and Methods of Operation relating to “fresh pears”:
5. Add the following new Members of the Certificate for Export Trade Activities and Methods of Operation relating to apples:
6. Remove the following companies as Members of the Certificate: Blue Mountain Growers, Inc. (Milton-Freewater, OR), and Obert Cold Storage (Zillah, WA); and
7. Change the name of the following existing Members: The Apple House, Inc. (Brewster, WA) is now Apple House Warehouse & Storage, Inc. (Brewster, WA); C&M Fruit Packers (Yakima, WA) is now Columbia Fruit Packers/Airport Division (Yakima, WA); Domex Marketing (Yakima, WA) is now Domex Superfresh Growers LLC (Yakima, WA); and Stemilt Growers Inc. is now Stemilt Growers, LLC.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; public meeting.
The New England Fishery Management Council (Council) is scheduling a public meeting of its Risk Policy Working Group 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.
This meeting will be held on Thursday, May 12, 2016 beginning at 9:30 a.m.
The meeting will be held at the DoubleTree by Hilton, 50 Ferncroft Road, Danvers, MA 01923; phone: (978) 777-2500.
Thomas A. Nies, Executive Director, New England Fishery Management Council; telephone: (978) 465-0492.
The Risk Policy Working Group will: continue the development of the Implementation Plan contained in the Risk Policy “Road Map”, which will address the implementation of the Council's Risk Policy across all Council-managed species and address other business 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.
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.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meetings and hearings.
The Western Pacific Fishery Management Council (Council) will hold a joint meeting of its Hawaii Regional Ecosystem Advisory Committee (REAC), Hawaii Advisory Panel (AP), and Hawaii members of its Noncommercial Fishing Advisory Committee (NCFAC) and a Hawaii AP meeting to discuss and make recommendations on issues in Hawaii and the Western Pacific region.
The joint Hawaii REAC, AP and NCFAC meeting will be held on Wednesday, May 11, 2016, between 9 a.m. and 12:00 p.m. The Hawaii AP meeting will be held on Wednesday, May 11, 2016, between 1 p.m. and 4
The joint Hawaii REAC, AP and NCFAC meeting and the Hawaii AP meeting will be held at the Council office, 1164 Bishop St. Honolulu, HI 96813; phone: (808) 522-8220.
Kitty M. Simonds, Executive Director, phone: (808) 522-8220.
Public comment periods will be provided throughout the agendas. The order in which agenda items are addressed may change. The meetings will run as late as necessary to complete scheduled business.
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.
These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Kitty M. Simonds, (808) 522-8220 (voice) or (808) 522-8226 (fax), at least 5 days prior to the meeting date.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meeting.
The North Pacific Fishery Management Council (Council) Observer Advisory Committee (OAC) will meet May 12 through May 13, 2016.
The meeting will be held on May 12, 2016, from 9 a.m. to 5:30 p.m. and on May 13, 2016, from 8:30 a.m. to 1 p.m.
The meeting will be in the Traynor Room, Building 4 at the Alaska Fisheries Science Center, 7700 Sand Point Way NE., Seattle, WA 98115. Please call (907) 271-2896.
Diana Evans, Council staff; telephone: (907) 271-2809.
The agenda will include a review and discussion of observer program review documents, efficiencies in the partial coverage contract, and regulatory amendment analyses. The Agenda is subject to change, and the latest version will be posted at
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.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of telephonic meeting.
The North Pacific Fishery Management Council (Council) Electronic Monitoring Workgroup (EMWG) will hold a telephonic meeting on May 11, 2016.
The meeting will be held on Wednesday, May 11, 2016, from 8 a.m. to 5 p.m. (Alaska Time).
The meeting will be held in the Traynor Room, Building 4 at the Alaska Fishery Science Center, 7600 Sand Point Way NE., Seattle, WA 98115. Teleconference number is (907) 271-2896.
Diana Evans, Council staff; telephone: (907) 271-2809.
The agenda will include an update on the 2016 pre-implementation program, review of the budget and funding, the 2017 pre-implementation planning, enforcement elements of the EM planning, EM analysis, and the scope of
The meeting is 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.
Bureau of Consumer Financial Protection.
Notice and request for comment.
In accordance with the Paperwork Reduction Act of 1995 (PRA), the Consumer Financial Protection Bureau (Bureau) is requesting to renew the Office of Management and Budget (OMB) approval for an existing information collection titled, “Consumer Advisory Boards, Groups and Committees.”
Written comments are encouraged and must be received on or before
You may submit comments, identified by the title of the information collection, OMB Control Number (see below), and docket number (see above), by any of the following methods:
• Electronic:
• Mail: Consumer Financial Protection Bureau (Attention: PRA Office), 1700 G Street NW., Washington, DC 20552.
• Hand Delivery/Courier: Consumer Financial Protection Bureau (Attention: PRA Office), 1275 First Street NE., Washington, DC 20002.
Documentation prepared in support of this information collection request is available at
The decision was based on matters discussed in the Final EIS; inputs from the public, Native American tribes, and Federal, State and local units of government, and regulatory agencies; and other relevant factors. The Final EIS was made available to the public on March 4, 2016 through a NOA in the
Toni Ristau, AFCEC/CZN 2261 Hughes Ave,
Office of the Under Secretary of Defense for Acquisition, Technology and Logistics, DoD.
Notice.
In compliance with the
Consideration will be given to all comments received by June 27, 2016.
You may submit comments, identified by docket number and title, by any of the following methods:
•
• Mail: ODCMO, Directorate for Oversight and Compliance, 4800 Mark Center Drive, ATTN: Mailbox 24, Alexandria, VA 22350-1700.
To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to the Department of Defense Basic Research Office, ATTN: Wade Wargo, 4800 Mark Center Drive, Suite 17C08, Alexandria, VA 22350-3600, or call Wade Wargo at 571-372-2941.
• Sections 8124 and 8125 of the Department of Defense Appropriations Act, 2012 (Division A of Pub. L. 112-74, the Consolidated Appropriations Act, 2012);
• Section 514 of the Military Construction and Veterans Affairs and Related Agencies Appropriations Act, 2012 (Division H of Pub. L. 112-74); and
• Sections 504 and 505 of the Energy and Water Development Appropriations Act, 2012 (Division B of Pub. L. 112-74).
Generally, the requirements related to these provisions of the FY 2012 appropriations acts have been included in each subsequent fiscal year's appropriations acts. Since FY 2015, the provisions related to felony convictions and unpaid federal tax liabilities have been enacted in the government-wide general provisions portion of the Financial Services and General Government Appropriations Act.
Respondents are entities submitting applications or proposals to Department of Defense Components that may result in the award of grants or cooperative agreements. Under a competitive program, each entity will be required to submit representations with its application or proposal to disclose whether it is a corporation that has an outstanding tax liability or has been convicted of a felony criminal violation within the past 24 months. Most applicants for DoD awards submit electronic applications through Grants.gov and the representations would be electronically attached to the applicant's SF 424 (OMB Control Number 4040-0004).
A memorandum to DoD Components from the Assistant Secretary of Defense for Research and Engineering specifies wording of the representations to be used for continuing obligations of FY 2012 appropriations and provides guidance on tailoring of the wording, if needed, to conform to provisions of future appropriations acts. The memorandum may be viewed at the DoD Basic Research Office Web site (
An awarding official prior to making a grant or cooperative agreement award will use the information provided by the representations in judging whether the entity recommended to receive the award is eligible to do so—
Department of Defense.
Renewal of Federal Advisory Committee.
The Department of Defense (DoD) is publishing this notice to announce that it is renewing the charter for the United States Army Science Board (“the Board”).
Jim Freeman, Advisory Committee Management Officer for the Department of Defense, 703-692-5952.
This committee's charter is being renewed in accordance with the Federal Advisory Committee Act (FACA) of 1972 (5 U.S.C., Appendix, as amended) and 41 CFR 102-3.50(d). The Board's charter and contact information for the Board's Designated Federal Officer (DFO) can be obtained at
The DoD, as necessary and consistent with the Board's mission and DoD policies and procedures, may establish subcommittees, task forces, or working groups to support the Board, and all subcommittees must operate under the provisions of FACA and the Government in the Sunshine Act. Subcommittees will not work independently of the Board and must report all their recommendations and advice solely to the Board for full deliberation and discussion. Subcommittees, task forces, or working groups have no authority to make decisions and recommendations, verbally or in writing, on behalf of the Board. No subcommittee or any of its members can update or report, verbally or in writing, directly to the DoD or any Federal officers or employees. The Board's DFO, pursuant to DoD policy, must be a full-time or permanent part-time DoD employee, and must be in attendance for the duration of each and every Board/subcommittee meeting. The public or interested organizations may submit written statements to the Board membership about the Board's mission and functions. Written statements may be submitted at any time or in response to the stated agenda of planned meeting of the Board. All written statements shall be submitted to the DFO for the Board, and this individual will ensure that the written statements are provided to the membership for their consideration.
Department of Defense.
Notice of meeting.
The Department of Defense is publishing this notice to announce the following Federal Advisory Committee meeting of the Judicial Proceedings since Fiscal Year 2012 Amendments Panel (“the Judicial Proceedings Panel” or “the Panel”). The meeting is open to the public.
A meeting of the Judicial Proceedings Panel will be held on Friday, May 13, 2016. The public session will begin at 9:00 a.m. and end at 4:15 p.m.
The Judge Advocate General's Legal Center and School, 600 Massie Rd., Charlottesville, VA 22903.
Ms. Julie Carson, Judicial Proceedings Panel, One Liberty Center, 875 N. Randolph Street, Suite 150, Arlington, VA 22203. Email:
This public meeting is being held under the provisions of the Federal Advisory Committee Act of 1972 (5 U.S.C., Appendix, as amended), the Government in the Sunshine Act of 1976 (5 U.S.C. 552b, as amended), and 41 CFR 102-3.150.
Denali Commission.
Notice.
The Denali Commission (Commission) is an independent federal agency based on an innovative federal-state partnership designed to provide critical utilities, infrastructure and support for economic development and training in Alaska by delivering Federal services in the most cost-effective manner possible. The Commission was created in 1998 with passage of the October 21, 1998 Denali Commission Act (Act) (Title III of Pub. L. 105-277, 42 U.S.C. 3121). The Act requires that the Commission develop proposed work plans for future spending and that the annual Work Plan be published in the
Comments and related material to be received by May 25, 2016.
Submit comments to the Denali Commission, Attention: Sabrina Cabana, 510 L Street, Suite 410, Anchorage, AK 99501.
Ms. Sabrina Cabana, Denali Commission, 510 L Street, Suite 410, Anchorage, AK 99501. Telephone: (907) 271-1414. Email:
By creating the Commission, Congress mandated that all parties involved partner together to find new and innovative solutions to the unique infrastructure and economic development challenges in America's most remote communities. Consistent with its statutory mission, in September of 2015 President Obama designated the Denali Commission as the lead federal agency for coordinating federal efforts to mitigate the impacts of erosion, flooding and permafrost degradation in rural Alaska. The primary goal is to build climate resilience with respect to infrastructure in environmentally threatened communities.
Pursuant to the Act, the Commission determines its own basic operating principles and funding criteria on an annual federal fiscal year (October 1 to September 30) basis. The Commission outlines these priorities and funding recommendations in an annual Work Plan. The FY 2016 Work Plan was developed in the following manner.
• A workgroup comprised of Denali Commissioners and Denali Commission staff developed a preliminary draft Work Plan.
• The preliminary draft Work Plan was published on
• A public hearing was held to record public comments and recommendations on the preliminary draft Work Plan.
• Written comments on the preliminary draft Work Plan were accepted for another two weeks after the public hearing.
• All public hearing comments and written comments were provided to Commissioners for their review and consideration.
• Commissioners discussed the preliminary draft Work Plan in a public meeting and then voted on the Work Plan during the meeting.
• The Commissioners forwarded their recommended Work Plan to the Federal Co-Chair, who then prepared the draft Work Plan for publication in the
• At the conclusion of the
• If no revisions are made to the draft, the Federal Co-Chair provides notice of approval of the Work Plan to the Commissioners, and forwards the Work Plan to the Secretary of Commerce for approval; or, if there are revisions the Federal Co-Chair provides notice of modifications to the Commissioners for their consideration and approval, and upon receipt of approval from Commissioners, forwards the Work Plan to the Secretary of Commerce for approval.
• The Secretary of Commerce approves the Work Plan.
• The Federal Co-Chair then approves grants and contracts based upon the approved Work Plan.
The Commission has historically received federal funding from several sources.
These fund sources are governed by the following general principles:
• In FY 2016 no project specific direction was provided by Congress.
• The Energy and Water Appropriation (
• Certain appropriations are restricted in their usage. Where restrictions apply, the funds may be used only for specific program purposes.
• Final appropriation funds received may be reduced due to Congressional action, rescissions by the Office of Management and Budget, and other federal agency action.
• All Energy and Water Appropriation and Trans-Alaska Pipeline Liability (TAPL) funds, including operating funds, identified in the Work Plan, are “up to” amounts, and may be reassigned to other programs included in the current year work plan, if they are not fully expended in a program component area or a specific project.
In order to fulfill its role as lead federal coordinating agency the Denali Commission staff, in consultation with State, Federal, and other partners, and the referenced communities in particular, proposes the following investments in support of the new Environmentally Threatened Communities (ETC) Program. United States Government Accountability Office (GAO) Report 09-551 (
The community of Newtok has initiated its relocation to Mertarvik and has started building infrastructure at Mertarvik. The Commission funds summarized above plus $475,000 of USDA/RUS funds that the Commission has in hand, will be used to supplement approximately $4.8M from existing State of Alaska Legislative grants and re-appropriations, $4.0M from the BIA Tribal Transportation Program, and $3.5M of disaster relief funding from the Federal Emergency Management Agency (FEMA) and the State of Alaska. The Commission and USDA funds will be used for the following activities:
• Preparation of Programmatic Environmental Documentation for the overall relocation effort that will allow other Federal agencies to adopt the document for their investments.
• Development of a final Site Plan and Official Plat that is consistent with ultimate utility development, road construction and community development.
• Geotechnical investigation to supplement existing information will allow efficient design of roads, building foundations, and other infrastructure.
• Development of the Borrow Site (quarry).
• Support for the existing Community Relocation Coordinator, Project Management Services, preparation of Emergency Response Plans, and conducting Emergency Response Drills.
• Design of a Bulk Fuel Storage Facility.
• Preliminary design of community power, water, sewer and solid waste facilities.
• Match/gap funds for other related activities identified by the Community.
The community of Shaktoolik has decided to protect the community in place for now.
The Commission funds summarized above will be used for the following activities:
• Support for the existing Community Relocation Coordinator, preparation of Emergency Response Plans, and conducting Emergency Response Drills.
• “Soft Erosion” protection measures.
• Design of a consolidated fuel storage facility above the 100-year flood level.
• Match/gap funds for other related activities identified by the Community.
Shishmaref is considering relocation but has not yet selected a new site. The Commission funds summarized above will be used for the following activities:
• Support for the existing Community Relocation Coordinator, preparation of Emergency Response Plans, and conducting Emergency Response Drills.
• Local match for existing US Army Corps of Engineers (USACE) funds for a site specific 100-year Flood Analysis.
• Local match for existing USACE funds to design Phases 3 and 4 of an armor rock revetment to protect the island.
• Match/gap funds for other related activities identified by the Community.
Kivalina is considering relocation and has selected a site for a new school. The Commission funds summarized above will be used for the following activities:
• Support for the existing Community Relocation Coordinator, preparation of Emergency Response Plans, and conducting Emergency Response Drills.
• Local match for existing USACE funds for a site specific 100-year Flood Analysis.
• Local match for existing USACE funds to design an armor rock revetment to protect the lagoon side of the island.
• Match/gap funds for other related activities identified by the Community.
The Commission funds summarized above will be used for the following activities in support of protect in place projects for the 27 other communities in GAO Report 09-551:
• Develop and/or update FEMA Hazard Mitigation Plans and Emergency Operation/Response Plans.
• Develop site specific project design, budget and schedules for two projects based on existing FEMA approved Hazard Mitigation Plans.
It is well known that there are other communities in rural Alaska not mentioned in the 2009 GAO Report that have infrastructure threatened due to erosion, flooding and permafrost degradation. The Commission intends to make $1,080,000 of prior year discretionary funding available for a statewide Disaster Response Fund that can be used to respond quickly, or to provide matching funds to compliment other funders for ETC disaster response and recovery, and other statewide initiatives such as the following.
• Develop a general Community Prioritization Methodology based on the threats due to erosion, flooding and permafrost degradation. This tool will be used to expand the 2009 GAO list, and by other funding agencies to allocate future resources.
• Support for the State of Alaska Immediate Action Working Group (IAWG).
• Support for two full time employees at a Grant Writing Center of Excellence that will focus on developing grant proposals for ETC protect in place projects.
However, a final decision has not yet been made on the level of funding for disaster response/recovery verses the other potential statewide initiatives.
The Federal Co-Chair and staff anticipate that the Commission's investments in FY 2017 will focus on the Energy and ETC Programs, with at least $5M for ETC. Current ideas for FY 2017 ETC initiatives and activities are summarized below. Of course, the agency will need to vet the proposed investments with each community in question, the State of Alaska, and the Commissioners.
1. Mertarvik community development.
2. Conceptual design and other pre-construction activities for a prototype emergency shelter facility that could be site adapted for construction in Shishmaref, Kivalina and Shaktoolik.
3. Mertarvik, Shishmaref, Kivalina, and Shaktoolik match/gap funding.
4. Pre-construction activities for protect in place projects for the 31 communities identified in GAO Report 09-550.
5. Statewide ETC investments.
Office of Career, Technical, and Adult Education, Department of Education.
Notice.
Performance Partnership Pilots
Notice inviting applications for new awards for fiscal year (FY) 2015.
Catalog of Federal Domestic Assistance (CFDA) Number: 84.420A.
Applications Available: April 26, 2016.
Deadline for Notice of Intent to Apply: May 26, 2016.
Submission of a notice of intent to apply is optional.
Government and community partners have invested considerable attention and resources to meet the needs of disconnected youth. However, practitioners, youth advocates, and others on the front lines of service delivery have observed that flexibility can be a key tool to address certain programmatic and administrative obstacles to achieving meaningful improvements in education, employment, health, and well-being for these young people.
P3 tests the hypothesis that additional flexibility for States, local governments, and tribes, in the form of blending funds and waivers of certain programmatic requirements, can help overcome some of the significant hurdles that States, local governments, and tribes face in providing intensive, comprehensive, and sustained service pathways and improving outcomes for disconnected youth. For example, P3 can be used to better coordinate and align the multiple systems that serve youth. P3 may help address the “wrong pockets” problem, where entities that observe improved outcomes or other benefits due to an intervention are unable to use Federal funds to support that intervention due to program restrictions. P3 flexibility may also allow the testing of an innovative approach to help to build additional evidence about what works. If this hypothesis proves true, providing necessary and targeted flexibility to remove or overcome these hurdles will help to achieve significant benefits for disconnected youth, the communities that serve them, and the involved agencies and partners.
The statutory definition of “disconnected youth” specifically identifies several high-need subpopulations of low-income youth, including youth who are homeless, youth in foster care, youth involved in the juvenile justice system, and youth who are unemployed or not in school or at risk of dropping out. We wish to note that there are a number of other high-need subpopulations of disconnected youth who are at risk of dropping out. For example, English learners (ELs) are at great risk of dropping out; the average cohort graduation rate for ELs during the 2013-14 school year was only 62.6 percent, while the national average cohort graduation rate for all youth was 82.3 percent. Similarly, the average cohort graduation rate for youth with a disability receiving special education and related services under the Individuals with Disabilities Education Act (IDEA) was significantly lower than that of youth who did not receive services under IDEA: 63.1 percent during the 2013-14 school year.
This notice invites applications for a second round of pilots as authorized by the 2015 Appropriations Act. That Act extended the P3 authority to allow pilots to include eligible FY 2015 funds from programs at ED, DOL, HHS, CNCS, and IMLS. Applicants may also include FY 2016 funds in their applications,
Separately, in addition to this competition, we intend to publish in the coming months a notice inviting applications for the third round of pilots that propose to use funds appropriated for FY 2016, including FY 2016 funds made available under Homeless Assistance Grants at the Department of Housing and Urban Development.
For purposes of this competition, absolute priorities create separate categories for scoring and considering applications. Because a diverse group of communities could benefit from P3, we include absolute priorities for applications that propose to serve disconnected youth in one or more rural communities only (Absolute Priority 2), applications that propose to serve disconnected youth in one or more Indian tribes (Absolute Priority 3), and applications that propose to serve disconnected youth in other communities (Absolute Priority 1). P3 is intended, through a demonstration, to identify effective strategies for serving disconnected youth. We are aware such strategies may differ across environments and wish to test the authority in a variety of settings.
In this FY 2015 competition, we are also including an absolute priority for communities that have experienced recent civil unrest (Absolute Priority 4), consistent with requirements of the 2016 Appropriations Act.
Competitive preference priorities allow applicants to receive extra points for satisfying certain criteria.
In addition to the absolute priorities, we also include four competitive preference priorities. We include a competitive preference priority for projects that serve those disconnected youth who are neither employed nor enrolled in education and who also face significant barriers to accessing education and employment and that are likely to result in significantly better educational or employment outcomes for such youth. Significant barriers to accessing education and employment could include, for example, a disability. An analysis of 2014 Current Population Survey data found that about one-third (34 percent) of youth ages 16 to 24 who were neither employed nor enrolled in school in 2014 reported that illness or disability was a major reason why they did not work.
We include a competitive preference priority for projects that provide all disconnected youth served by the project with paid work-based learning opportunities because addressing the employment needs of disconnected youth is critical to improving their well-being and preparing them for lives as productive adults. We note as well that new evidence indicates that the benefits of work-based learning opportunities extend beyond improving the employment outcomes of youth. A recent evaluation of the summer work and learning opportunity program offered by New York City for youth ages 14 through 21, which selected participants using a randomized lottery, found that, within five to eight years after participation, the incarceration and mortality rates of participants were significantly lower than those of their peers who were not selected to participate in the program.
This competition also includes a competitive preference priority for
This competition also includes a competitive preference priority for applicants that plan to conduct independent impact evaluations of at least one service-delivery or operational component of their pilots (site-specific evaluation), in addition to participating in any national P3 evaluation, which is discussed in the
Applicants must indicate in their application which absolute priority they are applying under. If an applicant applies under Absolute Priorities 2, 3, or 4, but is not eligible under that absolute priority, the applicant will still be considered for funding under Absolute Priority 1.
These priorities are:
To meet this priority, an applicant must propose a pilot that is designed to improve outcomes for disconnected youth.
To meet this priority, an applicant must propose a pilot that is designed to improve outcomes for disconnected youth in one or more rural communities (as defined in this notice) only.
An applicant should describe in its application how it meets the priority.
To meet this priority, an applicant must (1) propose a pilot that is designed to improve outcomes for disconnected youth who are members of one or more State- or federally-recognized Indian tribal communities; and (2) represent a partnership that includes one or more State- or federally-recognized Indian tribes.
To meet this priority, an applicant must propose a pilot that is designed to improve outcomes for disconnected youth in one or more communities that have recently experienced civil unrest.
Applicants may address more than one of the competitive preference priorities. An applicant must identify in the in the Appendix section of its application, under “Other Attachments Form,” the priority or priorities it addresses.
To meet this priority, an applicant must propose a pilot that—
(1) will serve disconnected youth who are neither employed nor enrolled in education and who face significant barriers to accessing education and employment; and
(2) is likely to result in significantly better educational or employment outcomes for such youth.
To meet this priority, an applicant must propose a pilot that will provide all of the disconnected youth it proposes to serve with paid work-based learning opportunities, such as opportunities during the summer, which are integrated with academic and technical instruction.
This priority is for projects that are designed to serve and coordinate with a federally designated Promise Zone.
To meet this priority, an applicant must propose to conduct an independent evaluation of the impacts on disconnected youth of its overall program or specific components of its program that is a randomized controlled trial or a quasi-experimental design study. The extent to which an applicant meets this priority will be based on the clarity and feasibility of the applicant's proposed evaluation design, the appropriateness of the design to best capture key pilot outcomes, the prospective contribution of the evaluation to the knowledge base about serving disconnected youth (including the rigor of the design and the validity and generalizability of the findings), and the applicant's demonstrated expertise in planning and conducting a
In order to meet this priority, an applicant also must include the following two documents as separate attachments to its application:
1. A Summary Evaluation Plan that describes how the pilot or a component of the pilot (such as a discrete service-delivery strategy) will be rigorously evaluated. The evaluation plan may not exceed eight pages. The plan must include the following:
• A brief description of the research question(s) proposed for study and an explanation of its/their relevance, including how the proposed evaluation will build on the research evidence base for the project as described in the application and how the evaluation findings will be used to improve program implementation;
• A description of the randomized controlled trial or quasi-experimental design study methodology, including the key outcome measures, the process for forming a comparison or control group, a justification for the target sample size and strategy for achieving it, and the approach to data collection (and sources) that minimizes both cost and potential attrition;
• A proposed evaluation timeline, including dates for submission of required interim and final reports;
• A description of how, to the extent feasible and consistent with applicable Federal, State, local, and tribal privacy requirements, evaluation data will be made available to other, third‐party researchers after the project ends; and
• A plan for selecting and procuring the services of a qualified independent evaluator (as defined in this notice) prior to enrolling participants (or a description of how one was selected if agreements have already been reached). The applicant must describe how it will ensure that the qualified independent evaluator has the capacity and expertise to conduct the evaluation, including estimating the effort for the qualified independent evaluator. This estimate must include the time, expertise, and analysis needed to successfully complete the proposed evaluation.
2. A supplementary Evaluation Budget Narrative, which is separate from the overall application budget narrative and provides a description of the costs associated with funding the proposed program evaluation component, and an explanation of its funding source—
The Agencies will review the Summary Evaluation Plans and Evaluation Budget Narratives and provide feedback to applicants that are determined to have met the priority and that are selected as pilots. After award, these pilots must submit to the lead Federal agency a detailed evaluation plan of no more than 30 pages that relies heavily on the expertise of a qualified independent evaluator. The detailed evaluation plan must address the Agencies' feedback and expand on the Summary Evaluation Plan.
[Approved by the Office of Management and Budget under control number 1830-0575]
For FY 2015 and any subsequent year in which we make awards from the list of unfunded applicants from this competition, these priorities are invitational priorities. Under 34 CFR 75.105(c)(1) we do not give an application that meets these invitational priorities a competitive or absolute preference over other applications.
To meet this priority, an applicant must propose a pilot that—
(1) will serve disconnected youth who are homeless youth (as defined in this notice); and
(2) is likely to result in significantly better educational or employment outcomes for such youth.
To meet this priority, an applicant must propose a pilot that—
(1) will serve disconnected youth who are involved in the justice system; and
(2) is likely to result in significantly better educational or employment outcomes for such youth.
The application requirements for this competition are from the P3 NFP. Any application that does not include the required documents or information will not be considered.
(a)
(b)
(c)
1.
2.
A. The State, local, or tribal government(s) with authority to grant any needed non-Federal flexibility, including waivers, has approved or will approve such flexibility within 60 days of an applicant's designation as a pilot finalist;
B. Non-Federal flexibility, including waivers, is not needed in order to successfully implement the pilot.
(d)
(e)
1. Identify the proposed partners, including any and all State, local, and tribal entities and non-governmental organizations that would be involved in implementation of the pilot, and describe their roles in the pilot's implementation using Table 3. Partnerships that cross programs and funding sources but are under the jurisdiction of a single agency or entity must identify the different sub-organizational units involved.
2. Provide a memorandum of understanding or letter of commitment signed by the executive leader or other accountable senior representative of each partner that describes each proposed partner's commitment, including its contribution of financial or in-kind resources (if any).
(f)
The applicant must propose outcome measures and interim indicators to gauge pilot performance using Table 4. At least one outcome measure must be in the domain of education, and at least one outcome measure must be in the domain of employment. Applicants may specify additional employment and education outcome measures, as well as outcome measures in other domains of well-being, such as criminal justice, physical and mental health, and housing. Regardless of the outcome domain, applicants must identify at least one interim indicator for each proposed outcome measure. Applicants may apply one interim indicator to multiple outcome measures, if appropriate.
Examples of outcome measures and interim indicators follow. Applicants may choose from this menu or may propose alternative indicators and outcome measures if they describe why their alternatives are more appropriate for their proposed projects.
The specific outcome measures and interim indicators the applicant uses should be grounded in its logic model, and informed by applicable program results or research, as appropriate. Applicants must also indicate the source of the data, the proposed frequency of collection, and the methodology used to collect the data.
(g)
1. The applicant must complete Table 5 to provide the following budget information:
A. For each Federal program, the grantee, the amount of funds to be blended or braided, the percentage of total program funding received by the grantee that the amount to be blended or braided represents, the Federal fiscal year of the award, and whether the grant has already been awarded; and
B. The total amount of funds from all Federal programs that would be blended or braided under the pilot.
(a)
[Approved by the Office of Management and Budget under control number 1830-0575]
(b)
(c)
(d)
1. The length of the agreement;
2. The Federal programs and federally funded services that are involved in the pilot;
3. The Federal discretionary funds that are being used in the pilot;
4. The non‐Federal funds that are involved in the pilot, by source (which may include private funds as well as governmental funds) and by amount;
5. The State, local, or tribal programs that are involved in the pilot;
6. The populations to be served by the pilot;
7. The cost‐effective Federal oversight procedures that will be used for the purpose of maintaining the necessary level of accountability for the use of the Federal discretionary funds;
8. The cost‐effective State, local, or tribal oversight procedures that will be used for the purpose of maintaining the necessary level of accountability for the use of the Federal discretionary funds;
9. The outcome (or outcomes) that the pilot is designed to achieve;
10. The appropriate, reliable, and objective outcome‐measurement methodology that will be used to determine whether the pilot is achieving, and has achieved, specified outcomes;
11. The statutory, regulatory, or administrative requirements related to Federal mandatory programs that are barriers to achieving improved outcomes of the pilot; and
12. Criteria for determining when a pilot is not achieving the specified outcomes that it is designed to achieve and subsequent steps, including:
i. The consequences that will result; and
ii. The corrective actions that will be taken in order to increase the likelihood that the pilot will achieve such specified outcomes.
Applicants are advised that the Agencies expect to make the performance agreements available to the public.
(A) Whose native language is a language other than English; or
(B) Who lives in a family or community environment where a language other than English is the dominant language.
An
A
A
A
(a) The Education Department General Administrative Regulations in 34 CFR parts 75, 77, 79, 81, 82, 84, 86, 97, 98, and 99, and such other regulations as the Agencies may apply based on the programs included in a particular pilot. (b) The Office of Management and Budget (OMB) Guidelines to Agencies on Governmentwide Debarment and Suspension (Nonprocurement) in 2 CFR part 180, as adopted and amended as regulations of the Department in 2 CFR part 3485. (c) The Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards in 2 CFR part 200, as adopted and amended as regulations of the Department in 2 CFR part 3474. (d) The Promise Zones NFP. (e) The P3 NFP.
The regulations in 34 CFR part 79 apply to all applicants except federally recognized Indian tribes.
Contingent upon the availability of funds and the quality of applications, we may make additional awards in subsequent years from the list of unfunded applicants from this competition.
The Agencies are not bound by any estimates in this notice. ED may supplement one or more awards above the amount requested in the application if funds remain after ED has made awards to all of the pilots.
1.
2.
3.
(b) The grantee may award subgrants to entities it has identified in an approved application.
1.
If you use a telecommunications device for the deaf (TDD) or a text telephone (TTY), call the Federal Relay Service (FRS), toll free, at 1-800-877-8339.
Individuals with disabilities can obtain a copy of the application package in an accessible format (
2. a.
Notice of Intent to Submit an Application: May 26, 2016.
Submission of a notice of intent to apply is optional. We will be able to develop a more efficient process for reviewing applications if we know the approximate number of applicants that intend to apply under this competition. Therefore, we strongly encourage each potential applicant to notify us of the applicant's intent to apply by emailing to
Page Limit: Applicants must limit the application narrative to no more than 45 pages, using the following standards:
• A “page” is 8.5″ x 11″, on one side only, with 1″ margins at the top, bottom, and both sides.
• Double space (no more than three lines per vertical inch) all text in the application narrative, including titles, headings, footnotes, quotations, references, and captions
• Use a font that is either 12 point or larger or no smaller than 10 pitch (characters per inch).
• Use one of the following fonts: Times New Roman, Courier, Courier New, or Arial.
The page limit for the application narrative does not apply to the application cover sheet; the budget and budget narrative; the assurances and certifications; or the abstract, the absolute and competitive priorities, the resumes, the bibliography, or the letters of commitment and memoranda of understanding. However, the page limit does apply to all of the application narrative section.
Our reviewers will not read any pages of your application narrative that exceed the page limit.
b.
Given the types of projects that may be proposed in applications for P3, your application may include business information that you consider proprietary. In 34 CFR 5.11 we define “business information” and describe the process we use in determining whether any of that information is proprietary and, thus, protected from disclosure under Exemption 4 of the Freedom of Information Act (5 U.S.C. 552, as amended).
Because we plan to make successful applications available to the public, and may make all applications available, you may wish to request confidentiality of business information.
Consistent with Executive Order 12600, please designate in your application any information that you feel is exempt from disclosure under Exemption 4 of the Freedom of Information Act. In the appropriate Appendix section of your application, under “Other Attachments Form,” please list the page number or numbers on which we can find this information. For additional information, please see 34 CFR 5.11(c).
3.
Submission of a notice of intent to apply is optional.
Deadline for Transmittal of Applications: June 27, 2016. Applications must be submitted electronically using the Grants.gov Apply site (Grants.gov). For information (including dates and times) about how to submit your application electronically, or in paper format by mail or hand delivery if you qualify for an exception to the electronic submission requirement, please refer to
We do not consider an application that does not comply with the deadline requirements.
Individuals with disabilities who need an accommodation or auxiliary aid in connection with the application process should contact the person listed under