Federal Register Vol. 81, No.80,

Federal Register Volume 81, Issue 80 (April 26, 2016)

Page Range24453-24692
FR Document

81_FR_80
Current View
Page and SubjectPDF
81 FR 24453 - Earth Day, 2016PDF
81 FR 24630 - Notice of establishment of the Moving to Work Research Federal Advisory CommitteePDF
81 FR 24633 - 60-Day Notice of Proposed Information Collection: Public Housing Agency Executive Compensation InformationPDF
81 FR 24573 - Applications for New Awards; Performance Partnership PilotsPDF
81 FR 24558 - Submission for OMB Review; Comment RequestPDF
81 FR 24559 - Submission for OMB Review; Comment RequestPDF
81 FR 24605 - Pesticide Experimental Use Permit; Receipt of Application; Comment RequestPDF
81 FR 24610 - Amendments, Extensions, and/or Issuances of Experimental Use PermitsPDF
81 FR 24598 - General Permit for Ocean Disposal of Marine Mammal CarcassesPDF
81 FR 24597 - Farm, Ranch, and Rural Communities CommitteePDF
81 FR 24610 - Aldicarb, Bensulide, Coumaphos, Ethalfluralin, and Pirimiphos-methyl Registration Review; Draft Human Health and Ecological Risk Assessments; Notice of AvailabilityPDF
81 FR 24690 - Agency Information Collection Activities: Proposed Information Collection; Comment Request; Reduction of Permanent Capital NoticePDF
81 FR 24636 - United States v. Charleston Area Medical Center, Inc. and St. Mary's Medical Center, Inc.: Proposed Final Judgment and Competitive Impact StatementPDF
81 FR 24570 - Denali Commission Fiscal Year 2016 Draft Work PlanPDF
81 FR 24563 - Foreign-Trade Zone (FTZ) 46G-Cincinnati, Ohio; Notification of Proposed Production Activity; Givaudan Flavors Corporation; (Flavor Products); Cincinnati, OhioPDF
81 FR 24563 - Foreign-Trade Zone 291-Cameron Parish, Louisiana; Application for Subzone; G2 LNG LLC; Cameron, LouisianaPDF
81 FR 24563 - Foreign-Trade Zone 61-San Juan, Puerto Rico; Application for Subzone; Rooms to Go (PR), Inc.; Toa Baja, Puerto RicoPDF
81 FR 24455 - Prevailing Rate Systems; Abolishment of the Newburgh, NY, Appropriated Fund Federal Wage System Wage AreaPDF
81 FR 24591 - Guidance and Application for Hydroelectric Incentive PaymentsPDF
81 FR 24687 - Agency Information Collection Activities: Requests for Comments; Clearance of Renewed Approval of Information Collection: Aviation Maintenance Technical SchoolsPDF
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)PDF
81 FR 24567 - Agency Information Collection Activities: Comment RequestPDF
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 ParticipantsPDF
81 FR 24685 - Mississippi Disaster #MS-00085PDF
81 FR 24685 - Regulatory Fairness Hearing; Region I-Portland, MainePDF
81 FR 24686 - Membership in the National Parks Overflights Advisory Group Aviation Rulemaking CommitteePDF
81 FR 24589 - Quadrennial Energy Review: Notice of Public MeetingsPDF
81 FR 24550 - Acquisition Regulation: Nondisplacement of Qualified Workers Under Service Contracts and Other Changes to the Contractor Purchasing System ClausePDF
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”PDF
81 FR 24567 - United States Air Force F-35A Operational Beddown-PacificPDF
81 FR 24658 - Completion Date of Cyber Security Plan Implementation Milestone 8; Tennessee Valley Authority; Watts Bar Nuclear Plant, Unit 1; CorrectionPDF
81 FR 24504 - Fisheries of the Northeastern United States; Atlantic Mackerel, Squid, and Butterfish Fisheries; Specifications and Management MeasuresPDF
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 CommissionPDF
81 FR 24511 - Fisheries of the Exclusive Economic Zone Off Alaska; Bering Sea and Aleutian Islands Crab Rationalization ProgramPDF
81 FR 24521 - Safety Zone, Shallowbag Bay; Manteo, NCPDF
81 FR 24491 - Drawbridge Operation Regulation; Three Mile Slough, Rio Vista, CAPDF
81 FR 24691 - Proposed Collection; Comment Request for Form 5558PDF
81 FR 24569 - Judicial Proceedings Since Fiscal Year 2012 Amendments Panel (Judicial Proceedings Panel); Notice of Federal Advisory Committee MeetingPDF
81 FR 24561 - Information Collection; Secure Rural Schools ActPDF
81 FR 24560 - Forest Resource Coordinating CommitteePDF
81 FR 24624 - President's National Security Telecommunications Advisory CommitteePDF
81 FR 24484 - PATH Act Changes to Section 1445; CorrectionPDF
81 FR 24593 - Palmco Power DE LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 AuthorizationPDF
81 FR 24594 - Puget Sound Energy, Inc.; Notice of Request Under Blanket AuthorizationPDF
81 FR 24593 - Tres Palacios Gas Storage LLC; Notice of ApplicationPDF
81 FR 24566 - North Pacific Fishery Management Council; Public MeetingPDF
81 FR 24658 - National Transportation Safety Board ForumPDF
81 FR 24491 - Drawbridge Operation Regulation; Atlantic Intracoastal Waterway, South Branch of the Elizabeth River, Chesapeake, VAPDF
81 FR 24616 - Proposed Data Collection Submitted for Public Comment and RecommendationsPDF
81 FR 24686 - Delegation of AuthorityPDF
81 FR 24565 - Western Pacific Fishery Management Council; Public MeetingsPDF
81 FR 24565 - New England Fishery Management Council; Public MeetingPDF
81 FR 24689 - Pipeline Safety: Public Workshop on Liquefied Natural Gas RegulationsPDF
81 FR 24568 - Proposed Collection; Comment RequestPDF
81 FR 24564 - Export Trade Certificate of ReviewPDF
81 FR 24688 - Notice and Request for CommentsPDF
81 FR 24562 - Section 538 Guaranteed Rural Rental Housing Program 2016 Industry Forums-Open Teleconference and/or Web Conference MeetingsPDF
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 CollectionPDF
81 FR 24569 - Charter Renewal of Department of Defense Federal Advisory CommitteesPDF
81 FR 24615 - Proposed Data Collection Submitted for Public Comment and RecommendationsPDF
81 FR 24654 - Agency Information Collection Activities; Submission for OMB Review; Comment Request; Workforce Innovation and Opportunity Act Common Performance ReportingPDF
81 FR 24626 - Agency Information Collection Activities: Notice of Naturalization Oath Ceremony, Form N-445; Extension, Without Change, of a Currently Approved CollectionPDF
81 FR 24655 - Adjustment of Cable Statutory License Royalty RatesPDF
81 FR 24613 - Formations of, Acquisitions by, and Mergers of Bank Holding CompaniesPDF
81 FR 24621 - Approval of Trust Control International as a Commercial GaugerPDF
81 FR 24620 - Accreditation and Approval of Camin Cargo Control, Inc., as a Commercial Gauger and LaboratoryPDF
81 FR 24589 - NCES System Clearance for Cognitive, Pilot, and Field Test Studies; ED-2016-ICCD-0040; CorrectionPDF
81 FR 24490 - Drawbridge Operation Regulation; Willamette River, Portland, ORPDF
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 PreparationPDF
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 CollectionPDF
81 FR 24523 - Adjustment of Cable Statutory License Royalty RatesPDF
81 FR 24594 - Combined Notice of Filings #2PDF
81 FR 24592 - Combined Notice of Filings #1PDF
81 FR 24667 - Product Change-Priority Mail Negotiated Service AgreementPDF
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 OrganizationsPDF
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 0581-0125PDF
81 FR 24618 - Submission for OMB Review; Comment RequestPDF
81 FR 24557 - Request for an Extension and Revision of a Currently Approved Information Collection for the Seed Service Testing ProgramPDF
81 FR 24629 - 30-Day Notice of Proposed Information Collection: Validating Estimates of CPD Grantee Accrued ExpensesPDF
81 FR 24482 - Determination of Adjusted Applicable Federal Rates Under Section 1288 and the Adjusted Federal Long-Term Rate Under Section 382PDF
81 FR 24484 - Drug Abuse Treatment ProgramPDF
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 ProgramPDF
81 FR 24635 - Notice of Receipt of Complaint; Solicitation of Comments Relating to the Public InterestPDF
81 FR 24684 - Oregon Disaster #OR-00081 Declaration of Economic InjuryPDF
81 FR 24628 - 60-Day Notice of Proposed Information Collection: Application for Community Compass TA and Capacity Building Program NOFAPDF
81 FR 24685 - Notice With Respect to List of Countries Denying Fair Market Opportunities for Government-Funded Airport Construction ProjectsPDF
81 FR 24554 - Request for Extension and Revision of a Currently Approved Information Collection for the Federal Seed Act ProgramPDF
81 FR 24628 - 30-Day Notice of Proposed Information Collection: Office of Lead Hazard Control and Healthy Homes Grant Programs; Data Collection and Progress ReportingPDF
81 FR 24634 - 60-Day Notice of Proposed Information Collection: Enterprise Income Verification Systems; Debts Owed to Public Housing Agencies and TerminationsPDF
81 FR 24631 - 30-Day Notice of Proposed Information Collection: Core Performance Reporting Requirements for Competitively-Funded GrantsPDF
81 FR 24498 - Environmental Protection Agency Acquisition Regulation; Institutional Oversight of Life Sciences Dual Use Research of ConcernPDF
81 FR 24536 - Air Plan Approval and Air Quality Designation; TN; Redesignation of the Sullivan County Lead Nonattainment Area to AttainmentPDF
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 7014PDF
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 2PDF
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 RealVolTMPDF
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 SchedulePDF
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 SchedulePDF
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 AreaPDF
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 AreaPDF
81 FR 24500 - NASA Federal Acquisition Regulation SupplementPDF
81 FR 24496 - Air Quality Plans; North Carolina; Infrastructure Requirements for the 2010 Sulfur Dioxide National Ambient Air Quality StandardPDF
81 FR 24525 - Promulgation of State Implementation Plan Revisions; Infrastructure Requirements for the 2008 Lead, 2008 Ozone, 2010 NO2,PDF
81 FR 24619 - National Institute of Nursing Research; Notice of MeetingPDF
81 FR 24620 - National Institute of Dental & Craniofacial Research; Notice of MeetingPDF
81 FR 24595 - Cross-Media Electronic Reporting: Authorized Program Revision Approval, State of UtahPDF
81 FR 24603 - Cross-Media Electronic Reporting: Authorized Program Revision Approval, State of Rhode IslandPDF
81 FR 24596 - Cross-Media Electronic Reporting: Authorized Program Revision Approval, State of OregonPDF
81 FR 24597 - Cross-Media Electronic Reporting: Authorized Program Revision Approval, State of LouisianaPDF
81 FR 24602 - Cross-Media Electronic Reporting: Authorized Program Revision Approval, State of KansasPDF
81 FR 24604 - Cross-Media Electronic Reporting: Authorized Program Revision Approval, State of AlabamaPDF
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)PDF
81 FR 24644 - Notice of Lodging of Proposed Consent Decree Under the Comprehensive Environmental Response, Compensation, and Liability ActPDF
81 FR 24645 - Investigations Regarding Eligibility To Apply for Worker Adjustment AssistancePDF
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 AssistancePDF
81 FR 24647 - Notice of Determinations Regarding Eligibility To Apply for Worker Adjustment AssistancePDF
81 FR 24613 - Submission for OMB Review; Use of Data Universal Numbering System (DUNS) as Primary Contractor IdentificationPDF
81 FR 24607 - Information Collection Request Submitted to OMB for Review and Approval; Comment Request; NESHAP for Perchloroethylene Dry Cleaning Facilities (Renewal)PDF
81 FR 24608 - Information Collection Request Submitted to OMB for Review and Approval; Comment Request; Consolidated Superfund Information Collection Request (Renewal)PDF
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)PDF
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)PDF
81 FR 24656 - Records Schedules; Availability and Request for CommentsPDF
81 FR 24659 - Applications and Amendments to Facility Operating Licenses and Combined Licenses Involving No Significant Hazards ConsiderationsPDF
81 FR 24464 - Black Lung Benefits Act: Disclosure of Medical Information and Payment of BenefitsPDF
81 FR 24621 - Changes in Flood Hazard DeterminationsPDF
81 FR 24544 - Subgrants and Membership Fees or DuesPDF
81 FR 24462 - Airworthiness Directives; Dassault AviationPDF
81 FR 24459 - Airworthiness Directives; Airbus AirplanesPDF

Issue

81 80 Tuesday, April 26, 2016 Contents Agricultural Marketing Agricultural Marketing Service RULES Grapes Grown in a Designated Area of Southeastern California and Imported Table Grapes: Shipments to Charitable Organizations, 24456-24459 2016-09620 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Federal Seed Act Program, 24554 2016-09607 Regulations Governing Inspection Certification of Fresh and Processed Fruits, Vegetables, and Other Products, 24555-24556 2016-09619 Seed Service Testing Program, 24557-24558 2016-09617 Transportation and Marketing Program, 24556-24557 2016-09612 Agricultural Research Agricultural Research Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 24558-24559 2016-09747 Agriculture Agriculture Department See

Agricultural Marketing Service

See

Agricultural Research Service

See

Animal and Plant Health Inspection Service

See

Food and Nutrition Service

See

Forest Service

See

Rural Housing Service

AIRFORCE Air Force Department NOTICES Records of Decision: U.S. Air Force F-35A Operational Beddown - Pacific, 24567-24568 2016-09683 Animal Animal and Plant Health Inspection Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 24559 2016-09743 Antitrust Division Antitrust Division NOTICES Proposed Final Judgment and Competitive Impact Statement: United States v. Charleston Area Medical Center, Inc. and St. Marys Medical Center, Inc., 24636-24644 2016-09728 Consumer Financial Protection Bureau of Consumer Financial Protection PROPOSED RULES Amendments to the 2013 Mortgage Servicing Rules under the Real Estate Settlement Procedures Act (Regulation X) and the Truth in Lending Act (Regulation Z), 24519-24521 2016-09695 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 24567 2016-09694 Centers Disease Centers for Disease Control and Prevention NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 24615-24618 2016-09638 2016-09657 Children Children and Families Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Child Care Development Fund Plan for Tribes for FFY 2017-2019, 24618 2016-09618 State Access and Visitation Grant Application, 24618-24619 2016-09599 Coast Guard Coast Guard RULES Drawbridge Operations: Atlantic Intracoastal Waterway, South Branch of the Elizabeth River, Chesapeake, VA, 24491 2016-09659 Three Mile Slough, Rio Vista, CA, 24491-24492 2016-09676 Willamette River, Portland, OR, 24490-24491 2016-09629 PROPOSED RULES Safety Zones: Shallowbag Bay; Manteo, NC, 24521-24523 2016-09677 Commerce Commerce Department See

Foreign-Trade Zones Board

See

International Trade Administration

See

National Oceanic and Atmospheric Administration

Comptroller Comptroller of the Currency NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Reduction of Permanent Capital Notice, 24690-24691 2016-09731 Copyright Royalty Board Copyright Royalty Board PROPOSED RULES Adjustment of Cable Statutory License Royalty Rates, 24523-24525 2016-09626 NOTICES Adjustment of Cable Statutory License Royalty Rates, 24655-24656 2016-09635 Defense Department Defense Department See

Air Force Department

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 24568-24569 2016-09652 Agency Information Collection Activities; Proposals, Submissions, and Approvals: Use of Data Universal Numbering System as Primary Contractor Identification, 24613-24615 2016-09549 Charter Renewals: Department of Defense Federal Advisory Committees, 24569 2016-09639 Meetings: Judicial Proceedings since Fiscal Year 2012 Amendments Panel (Judicial Proceedings Panel), 24569-24570 2016-09671
Denali Denali Commission NOTICES Denali Commission Fiscal Year 2016 Draft Work Plan, 24570-24572 2016-09708 Education Department Education Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Higher Education Act Title II Report Cards on State Teacher Credentialing and Preparation, 24588-24589 2016-09628 NCES System Clearance for Cognitive, Pilot, and Field Test Studies; Correction, 24589 2016-09630 Applications for New Awards; Performance Partnership Pilots, 24573-24588 2016-09748 Employment and Training Employment and Training Administration NOTICES Worker Adjustment Assistance; Determinations, 24647-24654 2016-09550 Worker Adjustment Assistance; Investigations, 24645-24647 2016-09553 Worker and Alternative Trade Adjustment Assistance; Amended Certifications: California Redwood Co., Eureka, CA, 24645 2016-09551 Energy Department Energy Department See

Energy Efficiency and Renewable Energy Office

See

Federal Energy Regulatory Commission

PROPOSED RULES Acquisition Regulations: Nondisplacement of Qualified Workers under Service Contracts and other Changes to the Contractor Purchasing System Clause, 24550-24553 2016-09688 NOTICES Meetings: Quadrennial Energy Review, 24589-24591 2016-09689
Energy Efficiency Energy Efficiency and Renewable Energy Office NOTICES Guidance and Application for Hydroelectric Incentive Payments, 24591-24592 2016-09700 Environmental Protection Environmental Protection Agency RULES Acquistion Regulations: Institutional Oversight of Life Sciences Dual Use Research of Concern, 24498-24500 2016-09601 Air Quality State Implementation Plans; Approvals and Promulgations: North Carolina; Infrastructure Requirements for the 2010 Sulfur Dioxide National Ambient Air Quality Standard, 24496-24497 2016-09587 Pennsylvania; 2011 Base Year Inventories for the 2008 8-Hour Ozone National Ambient Air Quality Standard for the Allentown-Bethlehem-Easton, etc., 24492-24496 2016-09591 PROPOSED RULES Air Quality State Implementation Plans; Approvals and Promulgations: Pennsylvania; 2011 Base Year Inventories for the 2008 8-Hour Ozone National Ambient Air Quality Standard for the Allentown-Bethlehem-Easton, etc., 24536 2016-09590 Tennessee -- Redesignation of the Sullivan County Lead Nonattainment Area to Attainment, 24536-24544 2016-09600 Environmental Impact Statements; Availability, etc.: Infrastructure Requirements for the 2008 Lead, 2008 Ozone, etc.; Utah, 24525-24536 2016-09586 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Consolidated Superfund Information Collection Request; Renewal, 24608-24609 2016-09547 Hazardous Waste Specific Unit Requirements, and Special Waste Processes and Types; Renewal, 24609 2016-09546 NESHAP for Perchloroethylene Dry Cleaning Facilities; Renewal, 24607-24608 2016-09548 NSPS for Steel Plants: Electric Arc Furnaces and Argon Oxygen Decarburization Vessels; Renewal, 24606-24607 2016-09567 Part B Permit Application, Permit Modifications, and Special Permits; Renewal, 24606 2016-09545 Cross-Media Electronic Reporting: Alabama Authorized Program Revision Approval, 24604-24605 2016-09574 Kansas Authorized Program Revision Approval, 24602-24603 2016-09575 Louisiana Authorized Program Revision Approval, 24597 2016-09576 Oregon Authorized Program Revision Approval, 24596 2016-09577 Rhode Island Authorized Program Revision Approval, 24603-24604 2016-09579 Utah Authorized Program Revision Approval, 24595-24596 2016-09580 Draft Human Health and Ecological Risk Assessments: Aldicarb, Bensulide, Coumaphos, Ethalfluralin, and Pirimiphos-methyl Registration Review, 24610-24613 2016-09732 Experimental Use Permits; Amendments, Extensions, Issuances, 24605-24606, 24610 2016-09744 2016-09745 General Permit for Ocean Disposal of Marine Mammal Carcasses, 24598-24602 2016-09734 Meetings: Farm, Ranch, and Rural Communities Committee, 24597-24598 2016-09733 Federal Aviation Federal Aviation Administration RULES Airworthiness Directives: Airbus Airplanes, 24459-24462 2016-08951 Dassault Aviation, 24462-24464 2016-08952 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Aviation Maintenance Technical Schools, 24687-24688 2016-09696 Human Space Flight Requirements for Crew and Space Flight Participants, 24688 2016-09693 Delegations of Authority, 24686 2016-09656 Memberships: National Parks Overflights Advisory Group Aviation Rulemaking Committee, 24686-24687 2016-09690 Federal Emergency Federal Emergency Management Agency NOTICES Changes in Flood Hazard Determinations, 24623-24626 2016-09472 Federal Energy Federal Energy Regulatory Commission NOTICES Applications: Tres Palacios Gas Storage LLC, 24593-24594 2016-09663 Combined Filings, 24592-24594 2016-09623 2016-09624 Initial Market-Based Rate Filings Including Requests for Blanket Section 204 Authorizations: Palmco Power DE LLC, 24593 2016-09665 Requests under Blanket Authorizations: Puget Sound Energy, Inc., 24594-24595 2016-09664 Federal Reserve Federal Reserve System NOTICES Formations of, Acquisitions by, and Mergers of Bank Holding Companies, 24613 2016-09634 Food and Nutrition Food and Nutrition Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 24559-24560 2016-09746 Foreign Assets Foreign Assets Control Office NOTICES Blocking or Unblocking of Persons and Properties, 24691 2016-09684 Foreign Trade Foreign-Trade Zones Board NOTICES Applications: Foreign-Trade Zone 291: Cameron Parish, LA; Application for Subzone G2 LNG, LLC, Cameron, LA, 24563-24564 2016-09704 Foreign-Trade Zone 61: San Juan, PR; Subzone Rooms to Go (PR), Inc. Toa Baja, PR, 24563 2016-09703 Proposed Production Activities: Givaudan Flavors Corp., Foreign-Trade Zone 46G: Cincinnati, OH, 24563 2016-09706 Forest Forest Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Secure Rural Schools Act, 24561-24562 2016-09670 Meetings: Forest Resource Coordinating Committee, 24560-24561 2016-09669 General Services General Services Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Use of Data Universal Numbering System as Primary Contractor Identification, 24613-24615 2016-09549 Health and Human Health and Human Services Department See

Centers for Disease Control and Prevention

See

Children and Families Administration

See

National Institutes of Health

Homeland Homeland Security Department See

Coast Guard

See

Federal Emergency Management Agency

See

U.S. Citizenship and Immigration Services

See

U.S. Customs and Border Protection

NOTICES Meetings: President's National Security Telecommunications Advisory Committee, 24626 2016-09668
Housing Housing and Urban Development Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Application for Community Compass TA and Capacity Building Program NOFA, 24619-24620 2016-09609 Core Performance Reporting Requirements for Competitively-Funded Grants, 24631-24633 2016-09604 Enterprise Income Verification Systems Debts Owed to Public Housing Agencies and Terminations, 24634-24635 2016-09605 Office of Lead Hazard Control and Healthy Homes Grant Programs Data Collection and Progress Reporting, 24620-24621 2016-09606 Public Housing Agency Executive Compensation Information, 24633-24634 2016-09753 Validating Estimates of CPD Grantee Accrued Expenses, 24629-24630 2016-09616 Committee Establishments: Moving to Work Research Federal Advisory Committee, 24630-24631 2016-09754 Internal Revenue Internal Revenue Service RULES Determinations of Adjusted Applicable Federal Rates and the Adjusted Federal Long-Term Rates, 24482-24484 2016-09614 PATH Act Changes to Section 1445; Correction, 24484 2016-09666 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 24691-24692 2016-09675 International Trade Adm International Trade Administration NOTICES Export Trade Certificate of Review, 24564-24565 2016-09651 International Trade Com International Trade Commission NOTICES Receipt of Complaint; Solicitation of Comments Relating to the Public Interest, 24635-24636 2016-09611 Justice Department Justice Department See

Antitrust Division

See

Prisons Bureau

NOTICES Proposed Consent Decrees under CERCLA, 24644 2016-09564 2016-09565
Labor Department Labor Department See

Employment and Training Administration

See

Workers Compensation Programs Office

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Workforce Innovation and Opportunity Act Common Performance Reporting, 24654-24655 2016-09637
Legal Legal Services Corporation PROPOSED RULES Subgrants and Membership Fees or Dues, 24544-24550 2016-09384 Library Library of Congress See

Copyright Royalty Board

NASA National Aeronautics and Space Administration RULES Federal Acquisition Regulation Supplement: Technical Amendments, 24500-24501 2016-09588 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Use of Data Universal Numbering System as Primary Contractor Identification, 24613-24615 2016-09549 National Archives National Archives and Records Administration NOTICES Records Schedules, 24656-24658 2016-09544 National Highway National Highway Traffic Safety Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 24688-24689 2016-09648 National Institute National Institutes of Health NOTICES Meetings: National Institute of Dental and Craniofacial Research, 24621 2016-09584 National Institute of Nursing Research, 24621 2016-09585 National Oceanic National Oceanic and Atmospheric Administration RULES Fisheries of the Exclusive Economic Zone off Alaska: Bering Sea and Aleutian Islands Crab Rationalization Program, 24511-24518 2016-09678 Fisheries of the Northeastern United States: Atlantic Mackerel, Squid, and Butterfish Fisheries; Specifications and Management Measures, 24504-24510 2016-09681 International Fisheries; Pacific Tuna Fisheries: Fishing Restrictions for the Area of Overlap, Inter-American Tropical Tuna Commission and the Western and Central Pacific Fisheries Commission, 24501-24504 2016-09679 NOTICES Meetings: New England Fishery Management Council, 24565 2016-09654 North Pacific Fishery Management Council, 24566-24567 2016-09661 2016-09662 Western Pacific Fishery Management Council, 24565-24566 2016-09655 National Transportation National Transportation Safety Board NOTICES Meetings: National Transportation Safety Board Forum, 24658 2016-09660 Nuclear Regulatory Nuclear Regulatory Commission NOTICES Applications and Amendments to Facility Operating Licenses and Combined Licenses Involving No Significant Hazards Considerations, 24659-24667 2016-09543 Completion Date of Cyber Security Plan Implementation Milestone 8: Tennessee Valley Authority; Watts Bar Nuclear Plant, Unit 1; Correction, 24658-24659 2016-09682 Personnel Personnel Management Office RULES Prevailing Rate Systems; Abolishment of the Newburgh, NY, Appropriated Fund Federal Wage System Wage Area, 24455-24456 2016-09702 Pipeline Pipeline and Hazardous Materials Safety Administration NOTICES Meetings: Pipeline Safety -- Public Workshop on Liquefied Natural Gas Regulations, 24689-24690 2016-09653 Postal Service Postal Service NOTICES Product Changes: Priority Mail Negotiated Service Agreement, 24667 2016-09621 Presidential Documents Presidential Documents PROCLAMATIONS Special Observances: Earth Day (Proc. 9426), 24453-24454 2016-09826 Prisons Prisons Bureau RULES Drug Abuse Treatment Program, 24484-24490 2016-09613 Rural Housing Service Rural Housing Service NOTICES Meetings: Section 538 Guaranteed Rural Rental Housing Program 2016 Industry Forums, 24562-24563 2016-09642 Securities Securities and Exchange Commission NOTICES Self-Regulatory Organizations; Proposed Rule Changes: BOX Options Exchange LLC, 24676-24678 2016-09596 Chicago Board Options Exchange, Inc., 24678-24680 2016-09595 NASDAQ Stock Market LLC, 24668-24674, 24681-24684 2016-09597 2016-09598 NYSE MKT LLC, 24674-24676 2016-09594 Small Business Small Business Administration NOTICES Disaster Declarations: Mississippi, 24685 2016-09692 Oregon, 24684-24685 2016-09610 Meetings: Region I Small Business Owners, Portland, ME, 24685 2016-09691 Trade Representative Trade Representative, Office of United States NOTICES List of Countries Denying Fair Market Opportunities for Government-Funded Airport Construction Projects, 24685-24686 2016-09608 Transportation Department Transportation Department See

Federal Aviation Administration

See

National Highway Traffic Safety Administration

See

Pipeline and Hazardous Materials Safety Administration

Treasury Treasury Department See

Comptroller of the Currency

See

Foreign Assets Control Office

See

Internal Revenue Service

U.S. Citizenship U.S. Citizenship and Immigration Services NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Application for Status as Temporary Resident, 24628-24629 2016-09627 Naturalization Oath Ceremony, 24627-24628 2016-09636 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, 24626-24627 2016-09640 Customs U.S. Customs and Border Protection NOTICES Commercial Gaugers and Laboratories; Accreditations and Approvals: Camin Cargo Control, Inc, 24622 2016-09632 Trust Control International, 24622-24623 2016-09633 Workers' Workers Compensation Programs Office RULES Black Lung Benefits Act: Disclosure of Medical Information and Payment of Benefits, 24464-24482 2016-09525 Reader Aids

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

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81 80 Tuesday, April 26, 2016 Rules and Regulations OFFICE OF PERSONNEL MANAGEMENT 5 CFR Part 532 RIN 3206-AN26 Prevailing Rate Systems; Abolishment of the Newburgh, NY, Appropriated Fund Federal Wage System Wage Area AGENCY:

U.S. Office of Personnel Management.

ACTION:

Final rule.

SUMMARY:

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.

DATES:

Effective date: This rule is effective on April 26, 2016. Applicability date: This change applies on the first day of the first applicable pay period beginning on or after May 26, 2016.

FOR FURTHER INFORMATION CONTACT:

Madeline Gonzalez, by telephone at (202) 606-2838 or by email at [email protected]

SUPPLEMENTARY INFORMATION:

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.

Regulatory Flexibility Act

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.

List of Subjects in 5 CFR Part 532

Administrative practice and procedure, Freedom of information, Government employees, Reporting and recordkeeping requirements, Wages.

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

Accordingly, OPM is amending 5 CFR part 532 as follows:

PART 532—PREVAILING RATE SYSTEMS 1. The authority citation for part 532 continues to read as follows: Authority:

5 U.S.C. 5343, 5346; § 532.707 also issued under 5 U.S.C. 552.

Appendix A to Subpart B of Part 532— [Amended]
2. Appendix A to subpart B of part 532 is amended for the State of New York by removing the entry for Newburgh.
3. Appendix C to subpart B is amended by revising the wage area listing for the Albany-Schenectady-Troy, NY; New York, NY; and Scranton-Wilkes-Barre, PA, wage areas and removing the wage area listing for Newburgh, NY,

The revisions read as follows:

Appendix C to Subpart B of Part 532—Appropriated Fund Wage and Survey Areas NEW YORK Albany-Schenectady-Troy Survey Area New York: Albany Montgomery Rensselaer Saratoga Schenectady Area of Application. Survey area plus: New York: Columbia Delaware Fulton Greene Schoharie Ulster Warren Washington New York Survey Area New Jersey: Bergen Essex Hudson Middlesex Morris Passaic Somerset Union New York: Bronx Kings Nassau New York Orange Queens Suffolk Westchester Area of Application. Survey area plus: New Jersey: Hunterdon Monmouth Ocean (Excluding the Fort Dix Military Reservation) Sussex New York: Dutchess Putnam Richmond Rockland Pennsylvania: Pike PENNSYLVANIA Scranton-Wilkes-Barre Survey Area Pennsylvania: Lackawanna Luzerne Monroe Area of Application. Survey area plus: New York: Sullivan Pennsylvania: Bradford Columbia Lycoming (Excluding Allenwood Federal Prison Camp) Montour Sullivan Susquehanna Wayne Wyoming
[FR Doc. 2016-09702 Filed 4-25-16; 8:45 am] BILLING CODE 6325-39-P
DEPARTMENT OF AGRICULTURE Agricultural Marketing Service 7 CFR Parts 925 and 944 [Doc. No. AMS-FV-14-0100; FV15-925-1 FR] 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 AGENCY:

Agricultural Marketing Service, USDA.

ACTION:

Final rule.

SUMMARY:

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.

DATES:

Effective May 26, 2016.

FOR FURTHER INFORMATION CONTACT:

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: [email protected] or [email protected]

Small businesses may request information on complying with this regulation by contacting Antoinette Carter, Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA, 1400 Independence Avenue SW., STOP 0237, Washington, DC 20250-0237; Telephone: (202) 720-2491, Fax: (202) 720-8938, or Email: [email protected]

SUPPLEMENTARY INFORMATION:

This 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.

Final Regulatory Flexibility Analysis

Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), the Agricultural Marketing Service (AMS) has considered the economic impact of this 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.

Paperwork Reduction Act

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 Federal Register on October 1, 2015 (80 FR 59077). Copies of the rule were mailed or sent via email to all Committee members and grape handlers. The rule was made available through the internet by USDA and the Office of the Federal Register. A 60-day comment period ending November 30, 2015, was provided to allow interested persons to respond to the proposal.

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: http://www.ams.usda.gov/rules-regulations/moa/small-businesses. Any questions about the compliance guide should be sent to Antoinette Carter at the previously mentioned address in the FOR FURTHER INFORMATION CONTACT section.

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.

List of Subjects 7 CFR Part 925

Grapes, Marketing agreements, Reporting and recordkeeping requirements.

7 CFR Part 944

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:

1. The authority citation for 7 CFR parts 925 and 944 continues to read as follows: Authority:

7 U.S.C. 601-674.

PART 925—TABLE GRAPES GROWN IN A DESIGNATED AREA OF SOUTHEASTERN CALIFORNIA
2. Amend § 925.160 by adding paragraph (c) to read as follows:
§ 925.160 Reports.

(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.

3. Amend § 925.304 by redesignating paragraphs (c), (d), (e), (f), and (g) as paragraphs (d), (e), (f), (g), and (h), respectively, and adding a new paragraph (c) to read as follows:
§ 925.304 California Desert Grape Regulation 6.

(c) Donation to charitable organizations. Handlers of grapes failing to meet the requirements of § 925.55 and paragraph (a) of this section may donate such grapes to charitable organizations. Any such grapes shall not be used for resale. Handlers donating such grapes to a charitable organization shall submit a completed Food Donation Form, CDGAC Form No. 8, as required in § 925.160(c), within 2 days of receipt by the intended charity.

PART 944—FRUITS; IMPORT REGULATIONS 4. In § 944.350, revise paragraph (a)(1) to read as follows:
§ 944.350 Safeguard procedures for avocados, grapefruit, kiwifruit, olives, oranges, prune variety plums (fresh prunes), and table grapes, exempt from grade, size, quality, and maturity requirements.

(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;

5. In § 944.503, revise paragraphs (d) and (e) to read as follows:
§ 944.503 Table Grape Import Regulation 4.

(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.

Dated: April 20, 2016. Elanor Starmer, Administrator, Agricultural Marketing Service.
[FR Doc. 2016-09620 Filed 4-25-16; 8:45 am] BILLING CODE 6410-02-P
DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2015-6547; Directorate Identifier 2014-NM-129-AD; Amendment 39-18490; AD 2016-08-14] RIN 2120-AA64 Airworthiness Directives; Airbus Airplanes AGENCY:

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

ACTION:

Final rule.

SUMMARY:

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.

DATES:

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).

ADDRESSES:

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 [email protected]; Internet http://www.airbus.com. You may view this referenced service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221. It is also available on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-6547.

Examining the AD Docket

You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-6547; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the regulatory evaluation, any comments received, and other information. The address for the Docket Office (telephone 800-647-5527) is Docket Management Facility, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.

FOR FURTHER INFORMATION CONTACT:

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.

SUPPLEMENTARY INFORMATION: Discussion

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 Federal Register on December 11, 2015 (80 FR 76875) (“the NPRM”). The NPRM was prompted by fuel system reviews conducted by the airplane manufacturer. The NPRM proposed to continue to require removing bulb-type maintenance lights; installing a drain mast on certain airplanes; and installing muffs on connecting bleed elements on certain airplanes. The NPRM also proposed to require, for certain Model A340-200 and -300 series airplanes, replacing certain insulation sleeves with new insulation sleeves. 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.

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 [http://ad.easa.europa.eu/blob/easa_ad_2013-0033_superseded.pdf/AD_2013-0033_1, which corresponds to FAA AD 2014-03-14, Amendment 39-17752 (79 FR 9382, February 19, 2014)] to require removal of bulb type maintenance lights for all aeroplanes, installation of a drain mast between Frame (FR) 80 and FR83 for A340-500/-600 aeroplanes, and installation of muffs on connecting bleed elements to minimize hot surfaces on A330 and A340-200/-300 aeroplanes.

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 http://www.regulations.gov by searching for and locating Docket No. FAA-2015-6547.

Comments

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

Change Made To This Final Rule: Updated Service Information

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.

Conclusion

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.

Related Service Information Under 1 CFR Part 51

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 ADDRESSES section.

Costs of Compliance

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.

Authority for This Rulemaking

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

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

Regulatory Findings

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

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

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

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

3. Will not affect intrastate aviation in Alaska; and

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

List of Subjects in 14 CFR Part 39

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

Adoption of the Amendment

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

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

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

§ 39.13 [Amended]
2. The FAA amends § 39.13 by removing Airworthiness Directive (AD) 2014-03-14, Amendment 39-17752 (79 FR 9382, February 19, 2014), and adding the following new AD: 2016-08-14 Airbus: Amendment 39-18490. Docket No. FAA-2015-6547; Directorate Identifier 2014-NM-129-AD. (a) Effective Date

This AD is effective May 31, 2016.

(b) Affected ADs

This AD replaces AD 2014-03-14, Amendment 39-17752 (79 FR 9382, February 19, 2014) (“AD 2014-03-14”).

(c) Applicability

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.

(d) Subject

Air Transport Association (ATA) of America Code 26, Fire protection; 33, Lights; 36, Pneumatic; 53, Fuselage.

(e) Reason

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.

(f) Compliance

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

(g) Retained Maintenance Light Removal, With New Service Information

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).

Note 1 to paragraph (g) of this AD:

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.

(h) Retained Insulation Muff Installation, With New Service Information

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.

(i) Retained Alternative Action to Paragraph (h) of This AD, With New Service Information

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.

(j) Retained Drain Mast Installation, With No Changes

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.

(k) New Requirement of This AD: Replacement of Certain Insulation Sleeves

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.

(l) Credit for Previous Actions

(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 A330-33-3041, dated January 3, 2012; or Airbus Service Bulletin A340-33-4026, dated January 3, 2012; as applicable. This service information is not incorporated by reference in this AD.

(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.

(m) Other FAA AD Provisions

The following provisions also apply to this AD:

(1) Alternative Methods of Compliance (AMOCs): The Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the International Branch, send it to ATTN: 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. Information may be emailed to: [email protected]

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

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

(3) Required for Compliance (RC): If any service information contains procedures or tests that are identified as RC, those procedures and tests must be done to comply with this AD; any procedures or tests that are not identified as RC are recommended. Those procedures and tests that are not identified as RC may be deviated from using accepted methods in accordance with the operator's maintenance or inspection program without obtaining approval of an AMOC, provided the procedures and tests identified as RC can be done and the airplane can be put back in an airworthy condition. Any substitutions or changes to procedures or tests identified as RC require approval of an AMOC.

(n) Related Information

(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 http://www.regulations.gov by searching for and locating Docket No. FAA-2015-6547.

(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.

(o) Material Incorporated by Reference

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

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

(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 [email protected]; Internet http://www.airbus.com.

(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: http://www.archives.gov/federal-register/cfr/ibr-locations.html.

Issued in Renton, Washington, on April 8, 2016. Michael Kaszycki, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service.
[FR Doc. 2016-08951 Filed 4-25-16; 8:45 am] BILLING CODE 4910-13-P
DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2015-7532; Directorate Identifier 2015-NM-069-AD; Amendment 39-18477; AD 2016-08-01] RIN 2120-AA64 Airworthiness Directives; Dassault Aviation AGENCY:

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

ACTION:

Final rule.

SUMMARY:

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.

DATES:

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.

ADDRESSES:

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: http://www.dassaultfalcon.com. You may view this referenced service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221. It is also available on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-7532.

Examining the AD Docket

You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-7532; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (telephone: 800-647-5527) is Docket Management Facility, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.

FOR FURTHER INFORMATION CONTACT:

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.

SUPPLEMENTARY INFORMATION: Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all Dassault Aviation Model FALCON 7X airplanes. The NPRM published in the Federal Register on January 4, 2016 (81 FR 28) (“the NPRM”). The NPRM was prompted by reports of multiple cases of ram air turbine (RAT) blade damage. The NPRM proposed to require 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.

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 http://www.regulations.gov by searching for and locating Docket No. FAA-2015-7532.

Comments

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

Conclusion

We reviewed the relevant data and determined that air safety and the public interest require adopting this AD as proposed except for minor editorial changes. We have determined that these minor changes:

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

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

Related Service Information Under 1 CFR Part 51

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 ADDRESSES section.

Costs of Compliance

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.

Authority for This Rulemaking

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

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

Regulatory Findings

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

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

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

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

3. Will not affect intrastate aviation in Alaska; and

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

List of Subjects in 14 CFR Part 39

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

Adoption of the Amendment

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

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

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

§ 39.13 [Amended]
2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): 2016-08-01 Dassault Aviation: Amendment 39-18477. Docket No. FAA-2015-7532; Directorate Identifier 2015-NM-069-AD. (a) Effective Date

This AD is effective May 31, 2016.

(b) Affected ADs

None.

(c) Applicability

This AD applies to Dassault Aviation Model FALCON 7X airplanes, certificated in any category, all serial numbers.

(d) Subject

Air Transport Association (ATA) of America Code 24, Electrical power.

(e) Reason

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.

(f) Compliance

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

(g) Placard Replacement

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.

(h) Exception to Paragraph (g) of This AD

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.

(i) Parts Installation Prohibition

As of the effective date of this AD, no person may install a RAT having P/N 1705673A, on any airplane.

(j) Other FAA AD Provisions

The following provisions also apply to this AD:

(1) Alternative Methods of Compliance (AMOCs): The Manager, International Branch, ANM-116, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the International Branch, send it to ATTN: Tom 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. Information may be emailed to: [email protected] Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office. The AMOC approval letter must specifically reference this AD.

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

(k) Related Information

Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA AD 2015-0076, dated May 6, 2015, for related information. This MCAI may be found in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-7532.

(l) Material Incorporated by Reference

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

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

(i) 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: http://www.dassaultfalcon.com.

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

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

Issued in Renton, Washington, on March 31, 2016. Victor Wicklund, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service.
[FR Doc. 2016-08952 Filed 4-25-16; 8:45 am] BILLING CODE 4910-13-P
DEPARTMENT OF LABOR Office of Workers' Compensation Programs 20 CFR Part 725 RIN 1240-AA10 Black Lung Benefits Act: Disclosure of Medical Information and Payment of Benefits AGENCY:

Office of Workers' Compensation Programs, Labor.

ACTION:

Final rule.

SUMMARY:

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 award through the Act's modification procedures. In addition, the final rule resolves an ambiguity regarding how physicians' follow-up reports should be considered under the evidence-limiting rules, and allows the Department to fully participate in claims adjudications after the liable coal mine operator stops participating because of adverse financial developments, such as bankruptcy or insolvency.

DATES:

This rule is effective May 26, 2016.

FOR FURTHER INFORMATION CONTACT:

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.

SUPPLEMENTARY INFORMATION: I. Background of This Rulemaking

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); Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 8 (1976). Benefits are paid either by an individual coal mine operator that employed the coal miner (or its insurance carrier), or the Black Lung Disability Trust Fund (Trust Fund). Dir., OWCP v. Bivens, 757 F.2d 781, 783 (6th Cir. 1985).

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.

II. Statutory Authority

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). See, e.g., Elm Grove Coal Co. v. Dir., OWCP, 480 F.3d 278, 293 (4th Cir. 2007) (“[T]he Secretary has been vested with broad authority to implement the mandate of the Black Lung Act.”); Caney Creek Coal Co. v. Satterfield, 150 F.3d 568, 572 (6th Cir. 1998) (describing 30 U.S.C. 936(a) as conferring “a broad grant of congressional authority” to promulgate regulations); Labelle Processing Co. v. Swarrow, 72 F.3d 308, 312 (3d Cir. 1995) (“Congress granted the Secretary of Labor broad authority to promulgate regulations under the BLBA.”); Harman Mining Co. v. Dir., OWCP, 826 F.2d 1388, 1390 (4th Cir. 1987) (same); see also Dir., OWCP v. Mangifest, 826 F.2d 1318, 1330 n.21 (3d Cir. 1987) (regulation was an appropriate exercise of the Secretary's general authority where not precluded by specific statutory section). Congress further emphasized the Secretary's important role in the BLBA's administration by including many other grants of regulatory authority throughout the statute. See 30 U.S.C. 902(f)(1)(D), 921(b), 923(b), 932(a), 932(h), 936(c), and 942. Two of these supplementary grants of regulatory authority, sections 923(b) and 932(a), are particularly important to this rulemaking.

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.” Id. As explained in the NPRM, 80 FR 23746, section 205 has been interpreted as conferring “exceptionally broad” power to regulate. See Heckler v. Campbell, 461 U.S. 458, 466 (1983), quoting Schweiker v. Gray Panthers, 453 U.S. 34, 43 (1981).

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 Federal Register such additional provisions [] as he deems necessary” and specifies that the incorporated Longshore Act sections apply “except as otherwise provided . . . by regulations of the Secretary.” 30 U.S.C. 932(a); see Dir., OWCP v. Nat'l Mines Corp., 554 F.2d 1267, 1273-74 (4th Cir. 1977) (holding that Congress empowered the Secretary to depart from specific requirements of the Longshore Act).

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.”Id.

III. Discussion of Significant Comments

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. See generally 80 FR 23743-44. Accordingly, the Department has retained those revisions in the final rule.

Section-by-Section Explanation 20 CFR 725.310 Modification of Awards and Denials

(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 operator's request to modify an effective award be denied unless the operator proved that it had complied with all of its payment obligations under that award and any other currently effective award (such as a medical benefits award) in the claim. The Department noted that an “effective” award is generally an uncontested award entered by a district director or any award entered by an administrative law judge or higher tribunal. 80 FR 23744; 20 CFR 725.502(a). The Department proposed the rule both to ensure that claimants are fully compensated and to protect the Trust Fund, which must pay effective awards when an operator fails to do so. 80 FR 23744-45.

(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 Crowe ex rel. Crowe v. Zeigler Coal Co., 646 F.3d 435, 445 (7th Cir. 2011), and Hudson v. Pine Ridge Coal Co., LLC, No. 2:11-00248, 2012 WL 386736, *5 (S.D. W.Va. Feb. 6, 2012)—continue to arise. See, e.g., Bull Creek Coal Corp. v. Dir., OWCP, 6th Cir. No. 14-3573, operator's appeal dismissed Nov. 6, 2014 (in post-2000 claim, operator sought modification after appealing effective benefits award to the court, but later moved to dismiss its appeal; modification petition remains pending and the Department's records indicate that the operator has not paid pursuant to the award); Dalton v. Dir., OWCP, 738 F.3d 779 (7th Cir. 2013) (in post-2000 claim, Department's records indicate operator delayed Trust Fund reimbursement for approximately ten years while pursuing appeals of initial awards and a later modification petition). Indeed, the Department has identified more than nine hundred claims in which the Trust Fund has paid effective benefits awards in the operator's stead since October 1, 2010. And, as explained in the NPRM, the existing enforcement mechanisms are difficult to use in these circumstances. 80 FR 23744-45. Thus, the Trust Fund is routinely forced to pay interim benefits to entitled claimants and bear the risk that the benefits award was in error, contrary to Congress' intent. At the time of the 2000 rulemaking, the Trust Fund was indebted to the U.S. Treasury in the amount of $5.487 billion. As of the end of fiscal year 2012 and after a restructuring, which included a one-time non-refundable allocation of $6.497 billion to the Fund, the Trust Fund's debt remained over $6 billion. See Emergency Economic Stabilization Act of 2008, Public Law 110-343, section 113 (Oct. 3, 2008); OWCP Annual Report to Congress for FY 2012 at 63.

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 Crowe concurring opinion over this type of operator misconduct. The rule is intended to curb an unlawful practice. It will prevent operators from indefinitely delaying payments to claimants or reimbursement of the Trust Fund for payments made on the operator's behalf. As a result, the rule will prevent operators from taking advantage of the safeguards built into the Act to protect claimants, mainly the payment of benefits from the Trust Fund when the liable operator fails to pay. The Department has a fiduciary duty to protect the Trust Fund from such misconduct. 26 U.S.C. 9501(a)(2); see also Marfork Coal Co. v. Weis, 251 F. App'x 229, 233 (4th Cir. 2007) (“The OWCP Director, who acts as trustee for the Black Lung Benefits Fund, is responsible for conserving its assets.”); Boggs v. Falcon Coal Co., 17 Black Lung Rep. 1-62, 1-65 (Ben. Rev. Bd. 1992) (noting that the Director is a trustee of the Trust Fund charged with a duty to protect its assets); Truitt v. N. Am. Coal Corp., 2 Black Lung Rep. 1-199, 1-202 (Ben. Rev. Bd. 1979) (same).

(d) Several commenters argue that no language in either the text or legislative history of Longshore Act section 22 authorizes this proposed rule. While section 22 does not contain explicit language contemplating this rule, other sections of the Longshore Act require employers to pay benefits under an effective award and therefore require payment of compensation due even while modification proceedings are pending. See, e.g., 33 U.S.C. 918, 921(a) (requiring payment of benefits pursuant to an award regardless of whether the award is final unless the order is stayed by an appellate tribunal); Williams v. Jones, 11 F.3d 247, 259 (1st Cir. 1993) (holding that employers must continue to pay pursuant to an effective award unless they are able to prove that doing so would result in irreparable injury). It is common practice for Longshore employers to comply with their obligations to pay compensation pursuant to an effective award while pursuing modification. There simply is no secondary payor—like the Trust Fund in black lung claims—available to serve as an alternative source of compensation payments in every case in which an employer does not meet its legal obligations, so there is no need for the Longshore Act to address this issue explicitly. Thus, the absence of any explicit language in section 22 mandating such compliance does not make the black lung rule inconsistent with Longshore Act practice.

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 (see Section II, supra), the Secretary's broad rulemaking authority under the BLBA specifically includes the “discretion to deviate from the LHWCA procedures and to prescribe `such additional provisions, not inconsistent with those specifically excluded by this subsection, as [the Department] deems necessary.' ” Bethenergy Mines Inc. v. Dir., OWCP, 854 F.2d 632, 634-35 (3d Cir. 1988) (quoting 30 U.S.C. 932(a)). The existence of the Trust Fund creates a need for a specific rule in the black lung program. Because the Department is authorized by statute to alter the procedures for modification, this rule is well within the Department's regulatory authority, even if section 22 does not explicitly require operators to demonstrate compliance with outstanding effective orders as a precondition to modification.

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. See 20 CFR 725.420(c); 725.522. The commenters reason that because that statute authorizes (and the regulations compel) the Trust Fund to pay benefits to an entitled claimant when a liable operator fails to pay, the statute necessarily endorses the operator's refusal to pay. The statute contains no such endorsement. In fact, the statutory and regulatory enforcement provisions demonstrate that when Congress created the Trust Fund, it did not suspend operators' obligations to pay benefits once an effective or final order is issued. See 33 U.S.C. 918(a), incorporated by 30 U.S.C. 932(a) and implemented by 20 CFR 725.605 (establishing procedures for enforcement of effective awards even if those awards are not final); 33 U.S.C. 921(d), incorporated by 30 U.S.C. 932(a) and implemented by 20 CFR 725.604 (allowing for enforcement of final awards of benefits in federal court); Hudson v. Pine Ridge Coal Co., LLC, No. 2:11-00248, 2012 WL 386736, at *5 (S.D. W.Va. Feb. 6, 2012) (enforcing BLBA compensation order notwithstanding pendency of operator's modification petition). The comment provides no support for its assertion that Congress, in effect, approves of employers ignoring their BLBA payment obligations. See also 65 FR at 80011 (Dec. 20, 2000) (in revising § 725.502, rejecting similar comment and concluding that Congress did not intend the Trust Fund “to absorb all operators' liabilities as a matter of course until the conclusion of litigation in every approved claim”).

(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. See 20 CFR 725.540(a) (allowing for recoupment of overpaid benefits). The Department does not believe that the commenters' perceived problems with the system for recovering overpayments justify withdrawing this rule.

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. See 20 CFR 725.547. The initiation of payments prior to final adjudication is a characteristic of workers' compensation programs generally. See, e.g., Doucette v. Hallsmith/Sysco Food Servs., Inc., 10 A.3d 692, 694 (Me. 2010) (recognizing express provision in Maine workers' compensation law that requires payment of benefits pending appeal and holding that court is not empowered to stay such payments); Coley v. Camden Assoc., Inc., 702 A.2d 1180, 1184 (Conn. 1997) (Connecticut's workers' compensation law requires employers or insurers to pay benefits to claimants during the pendency of appeal); Garcia v. McCord Gasket Corp., 534 N.W.2d 473, 478 (Mich. 1995) (affirming dismissal of employer's appeal for failure to pay benefits pursuant to effective, but not final, order as required by Michigan's workers' compensation law). Although this practice carries the risk that some claimants will receive compensation to which they were not entitled, that risk has been deemed an acceptable part of the workers' compensation compromise. Under the Act and regulations, the risk of an unrecoverable overpayment exists in every case where benefits are awarded, but the legislative history of the Act demonstrates Congress intended that operators, not the Trust Fund, should bear that risk. See, e.g., Old Ben Coal Co. v. Luker, 826 F.2d 688, 693 (7th Cir. 1987); Nowlin v. Eastern Assoc. Coal Corp., 331 F. Supp. 2d 465, 476 (N.D. W.Va. 2004) (“[T]he public is served by placing the risk of non-collection of overpayments on the coal mine operator rather than on 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 Department. Section 725.548(a) authorizes district directors to issue appropriate orders to protect the rights of the parties, and § 725.548(b) provides that disputes will be resolved through the same adjudication procedures that govern claims. The Department understands its essential role in processing operator overpayment requests and is committed to cooperating with the parties to ensure prompt resolution. To that end, the Department will review its procedures for handling operator overpayment requests and will ensure that all personnel are properly trained in their handling as part of this rule's implementation.

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 (see 80 FR 23744 (explaining that operators are legally required to pay pursuant to effective awards notwithstanding the pendency of a modification petition)), it also does not impose a new need for an enforcement remedy. These concerns represent a general complaint about the law as it currently stands and therefore should be directed to Congress, not the Department. The Department may not create a new cause of action in the courts. See Kontrick v. Ryan, 540 U.S. 443, 452 (2004) (“Only Congress may determine a lower federal court's subject-matter jurisdiction.”); Castaneda v. Immigration & Naturalization Serv., 23 F.3d 1576, 1579 n.2 (10th Cir. 1994) (“[A]dministrative agencies cannot by promulgation or interpretation of their own regulations either augment or nullify the jurisdiction of the federal courts as delimited by Congress.”)

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. See, e.g., Crowe, 646 F.3d at 445 (Hamilton, J., concurring) (noting that a pending modification request does not suspend an operator's obligation to pay pursuant to an effective award); Hudson, 2012 WL 386736, at *5 (same). Nor does this rule remove the primary incentive for operators to pursue modification: obtaining an order relieving them from the obligation to pay any additional benefits.

(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. See 20 CFR 725.522(b). Significantly, a decision reversing an award to a denial does not compel a claimant to repay previously paid benefits because the overpaid claimant has a statutory right to seek waiver of recovery of the overpayment. See 42 U.S.C. 404(b), as incorporated by 30 U.S.C. 923(b); see also 20 CFR 725.541; 725.542; 725.547. These provisions allow each overpaid claimant to argue that he or she need not repay the benefits because he or she was without fault in incurring the overpayment, and repayment would either defeat the purpose of the Act or be against equity and good conscience.

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. See 20 CFR 725.419(a), (d); 20 CFR 725.548(b). Thus, requiring claimants to repay overpayments before seeking modification could put them in the untenable position of having to choose between two statutory rights: (1) Repaying overpaid benefits within the one-year time limit for seeking modification and foregoing their right to seek a repayment waiver; or (2) seeking a repayment waiver and foregoing the right to seek modification.

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; Crowe, 646 F.3d at 445 (operator is entitled to seek modification, but “not legally entitled simply to ignore the final order of payment.”); Vincent v. Consolidated Operating Co., 17 F.3d 782, 785-86 (5th Cir. 1994) (enforcing award under the Longshore Act despite employer's modification request); Williams v. Jones, 11 F.3d 247, 259 (1st Cir. 1993) (same); Hudson, 2012 WL 386736, at *5 (denying motion to dismiss enforcement petition because of pendency of modification request). Section 725.310(e) simply requires operators to comply with their legal obligations before accessing the modification process. Moreover, the one-year period during which an operator may seek modification is constantly shifting because it runs from the date of last payment of benefits, and benefits are paid monthly. Thus, an operator might be in a position to seek modification many years after the initial award was entered.

(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. See 20 CFR 725.708. Any employer contest of an individual medical bill that goes to an administrative law judge results either in an order requiring payment or an order relieving the employer of the obligation to pay. See 20 CFR 725.701.

Thus, it is not uncommon for there to be multiple effective orders compelling an employer to pay medical benefits in a given case. While proposed § 725.310(e)(1) requires payment of only “currently effective” awards as defined by § 725.502(a), it does not identify whether a general award of medical benefits or a later award addressing specific medical charges triggers the operator's obligation to pay before being allowed to pursue modification. The Department has modified the final rule to clarify that only effective orders directing payment of specific medical bills must be paid before an operator may pursue modification. Such an order may arise in two ways. First, an effective order may arise if an operator does not timely contest specific medical bills brought to its attention by a district director. See 20 CFR 725.502(a)(2). Second, an effective order directing the payment of specific medical bills may be entered by an administrative law judge after a hearing on the compensability of those medical charges. See id. This revision ensures that operators will maintain the right to contest the compensability of each individual medical expense before an administrative law judge without burdening the right to seek modification of the underlying benefits award while review is underway. The final rule also protects claimants and the Trust Fund by requiring prompt payment or reimbursement of medical expenses that have been adjudicated to be compensable.

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 (i.e., the time to appeal the benefits award has expired or appellate review has concluded). The proposed rule does not define the term “approved,” and the Department recognizes that the term may be susceptible to multiple interpretations.

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 (see 33 U.S.C. 928, as incorporated by 30 U.S.C. 932(a)), is clear that attorneys' fee awards are not due and payable until the underlying benefit award is final, see Thompson v. Potashnick Constr. Co., 812 F.2d 574, 577 (9th Cir. 1987), and the fee award is final as well. See Johnson v. Dir., OWCP, 183 F.3d 1169, 1171 (9th Cir. 1999). See also 20 CFR 725.367(b) (requiring payment of attorney fee only “after the award of benefits becomes final”). Thus, the Department has amended § 725.310(e) to clarify that an employer must pay attorney fee awards prior to modification only if both the underlying benefit award and the fee award are final as defined by 20 CFR 725.419(d) (district director decision), 725.479(a) (administrative law judge decision) or 802.406 (Benefits Review Board decision).

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, i.e., an employer's failure either to secure commercial insurance or receive permission to self-insure its benefit liability (30 U.S.C. 933(d); 20 CFR 726.300) and for an employer's failure to file a required report (30 U.S.C. 942(b); 20 CFR 725.621(d)). After considering the commenters' objections, the Department has determined that the language requiring operators to pay civil money penalties as a condition to seeking modification of an award of benefits is unnecessary. Therefore, the Department has deleted the words “penalties” and “as are appropriate” from § 725.310(e) in the final rule.

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. See 20 CFR 725.502(a)(1). Revised paragraphs (e)(2)(i)-(v) describe the particular obligations an operator must prove it has satisfied and implements the revisions described in detail above regarding orders awarding medical benefits or attorneys' fees, and striking the words “penalties. . . . as are appropriate” from obligations an operator must satisfy.

(h) No other significant comments were received concerning this section, and the Department has promulgated the remainder of the regulation as proposed.

20 CFR 725.413 Disclosure of Medical Information

(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. See 80 FR 23746-47. First, experience has demonstrated that miners may be harmed if they do not have access to all information about their health, and the primary purpose of the Mine Safety and Health Act is to protect the health and safety of miners. To illustrate the potential for adverse impact on the miner's health, the Department described the proceedings in miner Gary Fox's claims for benefits, where the coal-mine operator withheld medical information documenting complicated pneumoconiosis from both the miner and some of its own medical experts. Second, by requiring an exchange of medical information, the rule protects parties who do not have legal representation who can assist in the formal discovery process. Finally, allowing parties fuller access to medical information may lead to better, more accurate decisions on claims—a goal that is consistent with Congressional intent.

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.” Id. The proposed rule also required the adjudication officer to consider whether sanctions should be mitigated because the party was not represented by an attorney when the non-disclosure occurred, or the non-disclosure was attributable solely to the party's attorney.

(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 (see Section II, supra) granting the Secretary regulatory authority nor the Administrative Procedure Act (APA) are sufficient to sustain promulgation of this regulation. They also argue that the rule is unnecessary because only one attorney engaged in the conduct the rule addresses. They further contend that the Department has not demonstrated a quantifiable positive impact on miners' health that would result from the rule. If the Department promulgates a medical information disclosure rule, several commenters ask for clarification of specific portions of the rule.

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 (see Section II, supra), Congress granted the Secretary broad rulemaking authority generally, and in governing evidentiary matters specifically. See 30 U.S.C. 923(b) (incorporating 42 U.S.C. 405(a)); 936(a). The statute also plainly authorizes the Department to depart from traditional procedural and evidentiary rules (such as those governing discovery) in order to best ascertain the rights of the parties in claims adjudications. 33 U.S.C. 923(a), as incorporated by 30 U.S.C. 932(a).

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 (i.e., claims filed after 1973 and administered by the Department) because it is located in Part B of the Act, and provides no authority for importing Social Security Administration procedures into Part C claim adjudications. The commenters are simply mistaken on their first point and misconstrue the Department's action on their second. The fact that the Social Security Act incorporation appears in Part B of the Act does not preclude the Secretary from basing regulations for Part C claims on that authority. 30 U.S.C. 940 (providing that “amendments made by the Black Lung Benefits Act of 1972,” which included the incorporation of Social Security Act section 205(a), “shall, to the extent appropriate, also apply to this part [C].”). Indeed, both the District of Columbia and Fourth Circuit Courts of Appeals have upheld the Department's procedural regulations governing Part C claims by relying at least in part on this statutory authority. See Nat'l Min. Ass'n. v. Dep't. of Labor, 292 F.3d 849, 873-7 (D.C. Cir. 2002) (holding that section 205(a) and 5 U.S.C. 556(d)—which allows agencies to exclude “unduly repetitious evidence” as “a matter of policy”—constituted sufficient authority for the regulatory evidence limitations at 20 CFR 725.414, which are applicable to Part C claims); Elm Grove Coal Co. v. Dir., OWCP, 480 F.3d 278, 293 (4th Cir. 2007) (holding in Part C claim that incorporation of section 205(a), Administrative Procedure Act section 556(d), and grant of general rulemaking authority in 30 U.S.C. 936 authorize the Secretary “to adopt reasonable regulations on the nature and extent of the proofs and evidence in order to establish rights to benefits under the Act”). Moreover, § 725.413 does not import Social Security Administration procedures but instead provides a new rule applicable to Part C claims.

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 disclose medical information. In support, they assert that: The Administrative Procedure Act (APA), 5 U.S.C. 501 et seq., and section 558(b) in particular, 5 U.S.C. 558(b), prohibit an agency from imposing sanctions; only courts established under Article III of the Constitution (i.e., federal district and appellate courts) may impose sanctions of fines and imprisonment; and neither the APA nor the BLBA authorizes sanctioning of attorneys in any event.

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 (see Section II, supra), that incorporation is subject to an important limitation: The Longshore Act provisions are incorporated “except as otherwise provided . . . by regulations of the Secretary.” 30 U.S.C. 932(a). Thus, “under the express language of the BLBA, the APA does not trump [a black lung program] regulation.” Amax Coal Co. v. Dir., OWCP, 312 F.3d 882, 893 (7th Cir. 2002); accord Midland Coal Co. v. Dir., OWCP, 149 F.3d 558, 563 (7th Cir. 1998) (overruled on other grounds by Saban v. U.S. Dep't of Labor, 509 F.3d 376 (7th Cir. 2007)).

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. See Atlantic Richfield Co. v. U.S. Dep't of Energy, 769 F.2d 771, 794 (D.C. Cir. 1984). The District of Columbia Circuit recognized in Atlantic Richfield that it would be “incongruous to grant an agency authority to adjudicate—which involves vitally the power to find the material facts—and yet deny authority to assure the soundness of the factfinding process” through use of discovery sanctions. See also Roadway Express Inc. v. U.S. Dep't of Labor, 495 F.3d 477, 485 (7th Cir. 2007) (approving of ALJ's use of discovery sanction to “level the playing field” where party's non-compliance “made it impossible” for the ALJ to decide the case on the merits); McAllister Towing & Transp. Co., Inc. v. NLRB, 156 Fed. App'x 386, 388 (2d Cir. 2005) (affirming ALJ's imposition of discovery sanctions, citing Atlantic Richfield). But see NLRB v. Int'l Medication Sys., Ltd., 640 F.2d 1110, 1114 (9th Cir. 1981) (agency was required to enforce a subpoena through federal district court and could not preclude employer from introducing evidence on issue as sanction for failure to comply with subpoena). And while it is true that the APA prohibits an agency's imposition of sanctions “except within jurisdiction delegated to the agency and as authorized by law,” 5 U.S.C. 558(b), this provision, even if applicable, does not preclude sanctions aimed at protecting the integrity of the administrative process. Am. Bus Ass'n v. Slater, 231 F.3d 1, 7 (D.C. Cir. 2000). See also Davy v. SEC, 792 F.2d 1418, 1421 (9th Cir. 1986) (general grant of regulatory authority to SEC was sufficient to allow adoption of rule providing for sanctioning accountants practicing before the agency).

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. See Polydoroff v. I.C.C., 773 F.2d 372, 374 (D.C. Cir. 1985). See also 80 FR 28768, 28769-75 (May 19, 2015) (rejecting same concerns raised in response to the proposed Office of Administrative Law Judges Rules of Practice and Procedure, which also allowed imposition of sanctions in certain circumstances).

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. See Atlantic Richfield, 769 F.2d at 795 (noting that “[a]n evidentiary preclusion order falls far short of an effort to exact compliance with a subpoena by a judgment of fine or imprisonment”).

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 (see generally 20 CFR 725.455), should be free, however, to fashion a remedy unique to the particular case at hand when warranted. But to clarify this provision and allay any concerns that the non-exclusive list could lead to the imposition of fines or imprisonment, the Department has revised the rule to preclude these sanctions. Fines and imprisonment are inherent in contempt powers, which section 27 of the Longshore Act vests in the federal courts. 33 U.S.C. 927, as incorporated by 30 U.S.C. 932(a). This revision appears at § 725.413(e)(3) in the final rule.

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. See, e.g., 33 U.S.C. 919(a), as incorporated by 30 U.S.C. 932(a) (the adjudicator has the “authority to hear and determine all questions in respect of [a] claim”). Thus, the Department believes that any sanction's impact should be confined to the claim under consideration. The sanctions listed in § 725.413 are claim-specific and should be sufficient to protect the integrity of the claims process. The Department therefore declines to adopt this suggestion.

(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). See, e.g., Keener v. Peerless Eagle Coal Co., ALJ Ruling and Order on Claimant's Motion to Compel and Employer's Motion for Protective Order, 2004-BLA-06265 (Apr. 12, 2005), aff'd BRB Decision and Order, BRB No. 05-1008 (Jan. 26, 2007); Lester v. Royalty Smokeless Coal Co., ALJ Decision and Order on Remand Granting Benefits, 2004-BLA-05700 (Mar. 4, 2008). In the second, the claimant's motion to compel is granted, but the employer still avoids disclosure by accepting liability for benefits and paying the claim. See, e.g., Daugherty v. Westmoreland Coal Co., ALJ Order Remanding Case to District Director, 2001-BLA-00594 (Mar. 21, 2005); Renick v. Consolidation Coal Co., ALJ Order of Remand for Payment, 2002-BLA-00083 (Sept. 9, 2002); and Harris v. Westmorland Coal Co., Order Denying Claimant's Request for Reconsideration, 1998-BLA-0188 (Aug. 7, 1998). And in the third, the motion to compel is granted and the medical information is disclosed. See, e.g., Wood v. Elkay Mining Co., ALJ Decision and Order—Awarding Benefits, 2001-BLA-00701 (May 23, 2007); Huggins v. Windsor Coal Co., BRB Decision and Order, BRB No. 06-0710 (Aug. 15, 2007). It is the first two categories of cases in which § 725.413 will change the result by requiring the exchange of previously undisclosed medical information.

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 from § 725.413's disclosure requirements.

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. See generally Fed. R. Civ. P. 26, Advisory Committee comment to 2010 amendments.

As noted above (see Section II, supra), formal rules of procedure do not strictly apply in black lung claims adjudications. And a program-specific regulation applies over either the Federal Rules or the OALJ Rules. 80 FR 28785, to be codified at 29 CFR 18.10 (OALJ rules do not apply “[i]f a specific Department of Labor regulation governs[,]” and the Federal Rules of Civil Procedure apply only in situations not provided for in the OALJ rules or other governing regulation). See also 80 FR 28773 (discussing 29 CFR 18.10 and stating that “[n]othing in [the OALJ] rules would prevent the Department from adopting a procedural rule that applies only in BLBA claim adjudications or other program-specific contexts.”).

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, see 20 CFR 725.363(b)) to a medical expert. When prepared by an attorney, these communications are generally protected from disclosure, except in the circumstances noted above, and are more likely to include the attorney's impressions and legal analysis of the case. And they generally do not have a direct bearing on protecting the miner's health. Accordingly, the Department believes these communications should not be considered “medical information” subject to mandatory exchange with the other parties. The Department has added new language to paragraph (b)(2) in the final rule to exclude attorney (and non-attorney representative) communications from the rule's disclosure requirements. The Department notes, however, that the exclusion would not protect disclosure of these communications when otherwise ordered. See, e.g, Elm Grove Coal, 480 F.3d at 299-303. The rule simply does not require their exchange.

(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” (e.g., a patient's method of bill payment) and suggest that “medical information” could be construed to include such data.

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 (e.g., data about a billing method would not meet the criteria).

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. See id. (allowing for admission of “any medically acceptable test or procedure reported by a physician and not addressed in this subpart, which tends to demonstrate the presence or absence of pneumoconiosis, the sequelae of pneumoconiosis or a respiratory or pulmonary impairment”). Adopting a finite list in § 725.413 could inadvertently exclude otherwise important data, especially as testing methods evolve in the future.

(4) Two commenters ask the Department to clarify whether the form in which the party receives the medical information (i.e., written, electronic, or orally) affects the duty under § 725.413 to exchange that information. As proposed, § 725.413(a)(1) and (2) require the parties to exchange physicians' “written or testimonial assessment of the miner.” The remainder of the rule is silent regarding the form of the communication. The Department agrees that the rule should be clarified on this point and has revised paragraph (a) in the final rule. With this change, the Department intends to make all written medical information, whether received in electronic (e.g., email, facsimile, Web portal or other electronic media) or hard-copy format, subject to § 725.413's requirements. This would also include testimonial medical information resulting from depositions (e.g., transcripts of depositions). But the rule is not intended to cover oral communications. The Department has no mechanism to monitor oral communications, and compliance with such a rule would be impossible to enforce.

(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 with this comment and has added a new paragraph (d) to § 725.413 to clarify that disclosed medical information is not considered evidence in the claim. Section 725.413's disclosure requirements essentially replace traditional discovery tools. Like information gained through traditional discovery, medical information exchanged under § 725.413 does not automatically become a part of the record on which the claim's adjudication is based. Instead, only those pieces of medical information a party chooses to submit to the adjudicator as evidence are subject to § 725.414's evidence-limiting rules.

(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. See Niazy v. Capital Hilton Hotel, 19 BRBS 266, 269 (1987).

(k) No other significant comments were received concerning this section, and the Department has promulgated the remainder of the regulation as proposed.

20 CFR 725.414 Development of Evidence

(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. See generally 20 CFR 725.310. Specifically, these commenters express concern over allowing physicians who submitted reports in the initial proceeding to submit supplemental reports on modification without those reports being counted against the party's evidentiary limits. The commenters believe this practice could lead to the development of limitless evidence, thwarting the purpose of the evidence-limiting rules.

(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. Rose v. Buffalo Mining Co., 23 Black Lung Rep. 1-221, 1-226-28 (Ben. Rev. Bd. 2007).

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. See Betty B Coal Co. v. Dir., OWCP, 194 F.3d 491, 498 (4th Cir. 1999). Moreover, this conclusion logically flows from a party's right to submit evidence not submitted during the initial claim proceedings to the extent allowed under § 725.414(a). Rose, 23 BLR at 1-227-28. Because a supplemental report could have been submitted during the initial proceedings without counting against the party, it is reasonable to allow the same accommodation during modification.

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. See 20 CFR 725.414(c) (“A physician who prepared a medical report admitted under this section may testify with respect to the claim at any formal hearing conducted in accordance with subpart F of this part, or by deposition.”). A testifying physician may address any admissible medical evidence submitted in the claim. See 20 CFR 725.457(d); 725.458. Thus, it makes little sense not to allow supplemental reports if a party could achieve the same result by having its physician testify during modification proceedings. See 80 FR 23748. Allowing submission of a written report is also consistent with the nature of black lung proceedings, where such reports are freely admissible.

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. See 20 CFR 725.414(a)(2)-(3). The limited number of test results, such as chest X-ray reports and pulmonary function tests, each party may submit restricts the number of supplemental reports necessary to review and comment on those tests.

(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. See generally 30 U.S.C. 923(b); 20 CFR 725.406, 725.414(a). This is true even though the Trust Fund may ultimately be liable for any benefits awarded. The proposed rule would give the Director the same rights to defend against a claim as if there were no responsible operator in the case. This means that in a miner's claim, the Director could submit as part of his affirmative case one medical opinion and set of testing in addition to the complete pulmonary examination afforded every miner who applies for benefits. See 20 CFR 725.414(a)(3)(iii).

(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 (i.e., the physician who performed the Department-sponsored medical evaluation and whose opinion most likely supported the initial benefits award) with operator-generated evidence, and challenging the award at a later stage would call into question the district director's role as a neutral adjudicator; and (2) medical opinions generated by operators virtually always express views contrary to the BLBA, the implementing regulations, and science. The commenters further allege, without examples, that whether the district director initially awards or denies the claim, a conflict of interest arises should the Director later decide to defend a claim because earlier routine communications between the claimant and the district director could be used against the claimant. For the reasons that follow, the Department does not believe any changes should be made in the proposed rule based on these comments.

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. Hardisty v. Dir., OWCP, 776 F.2d 129, 130 (7th Cir. 1985) (Director not bound by initial award of benefits in later proceedings after liability transferred from the responsible operator to the Trust Fund); Pavesi v. Dir., OWCP, 758 F.2d 956, 960 (3d Cir. 1985) (Director has obligation to protect Trust Fund and is not bound by district director's initial award of benefits). See also Cornett v. Benham Coal, Inc., 227 F.3d 569, 573 n.2 (6th Cir. 2000) (in litigation of claim, Director may take a position contrary to district director's initial finding that claim should be denied). This approach makes sense both because the Director has a fiduciary duty to protect the Trust Fund against unmeritorious claims, see, e.g., Dir., OWCP v. Hileman, 897 F.2d 1277, 1281 n.2 (4th Cir. 1990), and later contrary evidence could prove more probative. For example, a district director could award benefits based on X-ray evidence of complicated pneumoconiosis (also known as progressive massive fibrosis) when a later autopsy report affirmatively demonstrates that the miner did not have that form of the disease. The reverse could also occur (i.e., the district director denied the claim and an autopsy shows the miner suffered from complicated pneumoconiosis), compelling the Director to argue for an award of benefits. Neither scenario calls into question the district director's neutrality in adjudicating the claim based on the evidence before him or her.

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. See, e.g., Harman Mining Co. v. Dir., OWCP, 678 F.3d 305, 314-16 (4th Cir. 2012) (endorsing the Director's argument that a physician's opinion was permissibly considered less persuasive when the physician's views conflicted with the Department's rationale for amending the regulations); Sea “B” Mining Co. v. Dunford, 188 F. App'x 191, 199 (4th Cir. 2006) (agreeing with the Director that operator's physician's opinion was based on two premises that are hostile to the Act and thus appropriately discredited); Hunt v. Kentland Elkhorn Coal Corp., 159 F. App'x 659, 661-62 (6th Cir. 2005) (the Director argued that operator's physicians' opinions must be rejected because both were based on premises inconsistent with the Act); Penn Allegheny Coal Co. v. Mercatell, 878 F.2d 106, 109-10 (3d Cir. 1989) (agreeing with the Director that the ALJ reasonably discredited physician's opinion based on premises “fundamentally at odds with the statutory and regulatory scheme”); Black Diamond Coal Mining Co. v. Benefits Review Board, 758 F.2d 1532 (11th Cir. 1985) (Director supported ALJ discounting testimony of a doctor as inconsistent with the Act when that physician stated that he would not diagnose pneumoconiosis in the absence of positive x-rays); Kaiser Steel Corp. v. Dir., OWCP, 748 F.2d 1426 (10th Cir. 1984) (Director argued that the ALJ had properly discredited as contrary to the findings and purposes of the Act the opinion of a physician who stated coal workers' pneumoconiosis was never impairing).

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. See generally 33 U.S.C. 919, as incorporated by 30 U.S.C. 932(a) (providing for district director determinations) and 30 U.S.C. 932(k) (making the Secretary a party in all cases). The district director receives claim filings, gathers factual information about the miner's employment history and dependents, and, in claims filed by a miner, arranges for a complete pulmonary examination. Based on this information and any evidence submitted by the parties, the district director proposes an initial entitlement decision. Findings made by the district director are not binding on an administrative law judge, who conducts an independent de novo review of the claim. See 20 CFR 725.455(a) (In general, “any findings or determinations made with respect to a claim by a district director shall not be considered by the administrative law judge”).

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. See 26 U.S.C. 9501(d)(1)(B) (amounts in Trust Fund available to pay benefits when there is no liable operator). In these claims, the district director conducted an initial adjudication and the Director routinely participated in further proceedings, advocating for a denial of benefits unless the evidence demonstrated that the claimant was entitled to benefits. To the Department's knowledge, the Director has not used communications made between the claimant and the district director in a manner adverse to the claimant. And the commenters have pointed to no such instances.

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.

20 CFR 725.601 Enforcement Generally

(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. Id. For this reason, as well as the reasons set forth in the discussion under § 725.607, the Department is promulgating this rule as proposed.

20 CFR 725.607 Payments in Addition to Compensation

(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); see also 20 CFR 725.502(a). The operator is liable for the 20 percent amount even if the Trust Fund pays ongoing benefits to the claimant on an interim basis. 20 CFR 725.607(b).

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; see also 20 CFR 725.530(a) (cross-referencing § 725.607 and describing potential operator liabilities as including “additional compensation”). The phrase “additional compensation” reflects the Director's view, as well as the view of the majority of courts that have considered the issue, that payments made under Longshore Act section 14(f) are compensation rather than penalties. 80 FR 23748.

(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. See 43 FR 36814-15 (Aug. 18, 1978). Clarifying the language neither adds a new provision nor alters the character of the 20 percent additional compensation payment to a penalty. The Department is therefore promulgating the rule as proposed.

IV. Information Collection Requirements (Subject to the Paperwork Reduction Act) Imposed Under the Proposed Rule

The Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. 3501 et seq., and its implementing regulations, 5 CFR part 1320, require that the Department consider the impact of paperwork and other information collection burdens imposed on the public. A Federal agency generally cannot conduct or sponsor a collection of information, and the public is generally not required to respond to an information collection, unless it is approved by the Office of Management and Budget (OMB) under the PRA and displays a currently valid OMB Control Number. In addition, notwithstanding any other provisions of law, no person may generally be subject to penalty for failing to comply with a collection of information that does not display a valid Control Number. See 5 CFR 1320.5(a) and 1320.6.

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. See ICR Reference Number 201504-1240-002. The NPRM specifically invited comments regarding the information collection and notified the public of their opportunity to file such comments with both OMB and the Department. 80 FR 23749. On July 24, 2015, OMB concluded its review of the ICR by asking the Department to submit another ICR at the final rule stage and after considering any public comments regarding the information collection requirements in the rule.

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. See ICR Reference Number 201511-1240-003. A copy of this request (including supporting documentation) may be obtained free of charge from the Reginfo.gov Web site at http://www.reginfo.gov/public/do/PRAViewICR?ref_nbr=201511-1240-003, or by contacting 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-3464, Washington, DC 20210. Telephone: (202) 693-0978 (this is not a toll-free number). TTY/TDD callers may dial toll-free 1-800-877-8339. OMB is currently reviewing the ICR. The Department will publish a notice in the Federal Register when OMB concludes its review of the ICR.

The information collection and its burdens are summarized as follows:

Agency: DOL-OWCP.

Title of Collection: Disclosure of Medical Information.

OMB Control Number: 1240-0054.

Affected Public: Private Sector: Businesses and other for-profits.

Total Estimated Number of Respondents: 4,074.

Total Estimated Number of Responses: 4,074.

Total Estimated Annual Time Burden: 679 hours.

Total Estimated Annual Other Costs Burden: $6,681.

V. Executive Orders 12866 and 13563 (Regulatory Planning and Review)

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 medical information in their possession. Id.

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 (see Section III, supra). While these modification and discovery issues do not arise in every case, they arise frequently enough—and can have sufficiently important consequences when they do arise—that resolution by regulatory action is appropriate.

On the more specific comments, § 725.310(e), as discussed above (see Section III, supra), enforces an existing legal obligation imposed on operators by the statute and implementing regulations. Absent a stay of payments ordered by the Benefits Review Board or a court, operators are obligated to pay effective benefits awards, regardless of any other proceedings in the claim. The statute and regulations already mandate that any associated economic burden be borne by operators rather than the Trust Fund. The only new burden the rule places on operators is to demonstrate that they have complied with the relevant orders. For operators that are in compliance, this showing will not be difficult. This minimal burden does not outweigh the Department's duty to ensure that claimants receive all benefits when due and to protect the Trust Fund's assets.

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 (see Section III, supra), the Department cannot quantify the actual impact of non-disclosure of medical information on miners' health with any certainty. But the rule is fully consistent with the Mine Safety and Health Act's prime directive: To protect the health and safety of the miner. Section 725.413 also affords unrepresented claimants an even playing field when litigating their claims and increases the possibility of more accurate entitlement determinations. Balanced against these important interests is the minimal administrative burden of exchanging all medical information a party develops about the miner with the other parties, a practice several objecting commenters state the parties have routinely followed in all but a few instances. Thus, to the extent § 725.413 mandates such practice, the impact on the parties should be very small.

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.

VI. Regulatory Flexibility Act and Executive Order 13272 (Proper Consideration of Small Entities in Agency Rulemaking)

The Regulatory Flexibility Act of 1980, as amended, 5 U.S.C. 601 et seq. (RFA), requires an agency to evaluate the potential impacts of their proposed and final rules on small businesses, small organizations, and small governmental jurisdictions and to prepare a “regulatory flexibility analysis” describing those impacts. But if the rule is not expected to have “a significant economic impact on a substantial number of small entities,” the RFA allows the agency to so certify in lieu of preparing the analysis. 5 U.S.C. 605(b).

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, see 5 U.S.C. 605(b), and invited public comment on the certification.

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.

VII. Unfunded Mandates Reform Act of 1995

Title II of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1531 et seq., directs agencies to assess the effects of Federal Regulatory Actions on State, local, and tribal governments, and the private sector, “other than to the extent that such regulations incorporate requirements specifically set forth in law.” 2 U.S.C. 1531. For purposes of the Unfunded Mandates Reform Act, this rule does not include any Federal mandate that may result in increased expenditures by State, local, tribal governments, or increased expenditures by the private sector of more than $100,000,000.

VIII. Executive Order 13132 (Federalism)

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.” Id.

IX. Executive Order 12988 (Civil Justice Reform)

This rule was drafted and reviewed in accordance with Executive Order 12988, Civil Justice Reform, and it will not unduly burden the Federal court system. The final rule was: (1) Carefully reviewed to eliminate drafting errors and ambiguities; (2) written to minimize litigation; and (3) provides clear legal standards for affected conduct. The rule also specifies when its provisions apply.

X. Congressional Review Act

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. OWCP will report this rule's promulgation to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States simultaneously with publication of the rule in the Federal Register. The report will state that the rule is not a “major rule” as defined by 5 U.S.C. 804(2).

List of Subjects in 20 CFR Part 725

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:

PART 725—CLAIMS FOR BENEFITS UNDER PART C OF TITLE IV OF THE FEDERAL MINE SAFETY AND HEALTH ACT, AS AMENDED 1. The authority citation for part 725 continues to read as follows: Authority:

5 U.S.C. 301; Reorganization Plan No. 6 of 1950, 15 FR 3174; 30 U.S.C. 901 et seq., 902(f), 934, 936; 33 U.S.C. 901 et seq.; 42 U.S.C. 405; Secretary's Order 10-2009, 74 FR 58834.

2. In § 725.310, revise paragraphs (b), (c) and (d) and add paragraph (e) to read as follows:
§ 725.310 Modification of awards and denials.

(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 (see § 725.607) due under an effective order;

(iii) Paid all medical benefits (see § 725.701 et seq.) due under any effective award, but only if the order awards payment of specific medical expenses;

(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 (see § 725.367(b)); and

(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 during the modification proceedings the operator fails to meet the payment obligations described, the adjudication officer must issue an order to show cause why the operator's modification request should not be denied and afford all parties time to respond to such order. Responses may include evidence pertaining to the operator's continued compliance with the requirements of paragraph (e)(2). If, after the time for response has expired, the adjudication officer determines that the operator is not meeting its obligations, the adjudication officer must deny the operator's modification request.

(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.

3. Add § 725.413 to subpart E to read as follows:
§ 725.413 Disclosure of medical information.

(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 (see § 725.456(b)).

(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 (see § 725.465(d));

(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 (see § 725.479(b)) or after remand by the Benefits Review Board or a reviewing court; or

(ii) A party requests modification of the award or denial of benefits (see § 725.310(a)).

4. In § 725.414, revise paragraphs (a)(1) through (5), (c), and (d) to read as follows:
§ 725.414 Development of evidence.

(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 biopsy submitted by the designated responsible operator or the fund, as appropriate, under paragraph (a)(3)(i) or (a)(3)(iii) of this section and by the Director pursuant to § 725.406. In any case in which the party opposing entitlement has submitted the results of other testing pursuant to § 718.107, the claimant is entitled to submit one physician's assessment of each piece of such evidence in rebuttal. In addition, where the responsible operator or fund has submitted rebuttal evidence under paragraph (a)(3)(ii) or (a)(3)(iii) of this section with respect to medical testing submitted by the claimant, the claimant 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 claimant, the claimant is entitled to submit an additional statement from the physician who prepared the medical report explaining his conclusion in light of the rebuttal evidence.

(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. (See § 725.409 of this part).

(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) Testimony. A physician who prepared a medical report admitted under this section may testify with respect to the claim at any formal hearing conducted in accordance with subpart F of this part, or by deposition. If a party has submitted fewer than two medical reports as part of that party's affirmative case under this section, a physician who did not prepare a medical report may testify in lieu of such a medical report. The testimony of such a physician will be considered a medical report for purposes of the limitations provided by this section. A party may offer the testimony of no more than two physicians under the provisions of this section unless the adjudication officer finds good cause under paragraph (b)(1) of § 725.456 of this part. In accordance with the schedule issued by the district director, all parties must notify the district director of the name and current address of any potential witness whose testimony pertains to the liability of a potentially liable operator or the designated responsible operator. Absent such notice, the testimony of a witness relevant to the liability of a potentially liable operator or the designated responsible operator will not be admitted in any hearing conducted with respect to the claim unless the administrative law judge finds that the lack of notice should be excused due to extraordinary circumstances.

(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.

5. In § 725.601, revise paragraphs (b) and (c) to read as follows:
§ 725.601 Enforcement generally.

(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 pay benefits with respect to a claim for which the operator has been adjudicated liable, the Director may invoke and execute the lien on the property of the operator as described in § 725.603. Enforcement of this lien must be pursued in an appropriate U.S. district court. If the Director determines that the remedy provided by § 725.603 may not be sufficient to guarantee the continued compliance with the terms of an award or awards against the operator, the Director may in addition seek an injunction in the U.S. district court to prohibit future noncompliance by the operator and such other relief as the court considers appropriate (see § 725.604). If an operator unlawfully suspends or terminates the payment of benefits to a claimant, the district director may declare the award in default and proceed in accordance with § 725.605. In all cases payments of additional compensation (see § 725.607) and interest (see § 725.608) will be sought by the Director or awarded by the district director.

(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.

6. Revise § 725.607 to read as follows:
§ 725.607 Payments of additional compensation.

(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.

Signed at Washington, DC, this 19th day of April, 2016. Leonard J. Howie, III, Director, Office of Workers' Compensation Programs.
[FR Doc. 2016-09525 Filed 4-25-16; 8:45 am] BILLING CODE 4510-CR-P
DEPARTMENT OF THE TREASURY Internal Revenue Service 26 CFR Part 1 [TD 9763] RIN 1545-BM20 Determination of Adjusted Applicable Federal Rates Under Section 1288 and the Adjusted Federal Long-Term Rate Under Section 382 AGENCY:

Internal Revenue Service (IRS), Treasury.

ACTION:

Final regulations.

SUMMARY:

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.

DATES:

Effective Date: These regulations are effective on April 26, 2016.

Applicability Dates: For the dates of applicability, see §§ 1.382-12(d) and 1.1288-1(c).

FOR FURTHER INFORMATION CONTACT:

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.

SUPPLEMENTARY INFORMATION: Background

On March 2, 2015, the IRS and the Treasury Department published a notice of proposed rulemaking (REG-136018-13) in the Federal Register (80 FR 11141) proposing the method to be used to determine the adjusted AFRs for tax-exempt obligations under section 1288 and the method to be used to determine the long-term tax-exempt rate and the adjusted Federal long-term rate under section 382. No comments were received on the notice of proposed rulemaking. No public hearing was requested or held. Accordingly, this Treasury decision adopts the proposed regulations without substantive change.

Explanation of Provisions

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. Treasury obligations, causing the adjusted Federal long-term rate and each adjusted AFR to exceed the corresponding AFRs. Adjusted rates that are higher than the corresponding AFRs indicate that the adjustment factor no longer served the purposes of sections 1288(b)(1) and 382(f)(2), which were intended to adjust only for the tax exemption. These rates were also inconsistent with the express intention of Congress that the adjusted Federal long-term rate and the long-term tax-exempt rate be lower than the Federal long-term rate. See 2 H.R. Rep. No. 99-841 (Conf. Rep.), 99th Cong., 2d Sess. II-188 (1986) (1986-3 CB (Vol. 4) 1, 188).

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.

Effective/Applicability Date

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.

Special Analyses

Certain IRS regulations, including this one, are exempt from the requirements of Executive Order 12866, as supplemented and reaffirmed by Executive Order 13563. Therefore, a regulatory 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.

Drafting Information

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.

Availability of IRS Documents

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.

List of Subjects in 26 CFR Part 1

Income taxes, Reporting and recordkeeping requirements.

Adoption of Amendments to the Regulations

Accordingly, 26 CFR part 1 is amended as follows:

PART 1—INCOME TAXES Paragraph 1. The authority citation for part 1 is amended by adding entries in numerical order to read in part as follows: Authority:

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). * * *

Par. 2. Section 1.382-1 is amended by revising the introductory text and adding an entry for § 1.382-12 to read as follows:
§ 1.382-1 Table of contents.

This section lists the captions that appear in the regulations for §§ 1.382-2 through 1.382-12.

§ 1.382-12 Determination of adjusted Federal long-term rate.

(a) In general.

(b) Adjusted Federal long-term rate.

(c) Adjustment factor.

(d) Effective/applicability date.

Par. 3. Section 1.382-12 is added to read as follows:
§ 1.382-12 Determination of adjusted Federal long-term rate.

(a) In general. The long-term tax-exempt rate for an ownership change is the highest of the adjusted Federal long-term rates in effect for any month in the 3-calendar-month period ending with the calendar month in which the change date occurs. For purposes of the previous sentence, the adjusted Federal long-term rate is the Federal long-term rate determined under section 1274(d) (without regard to paragraphs (2) and (3) thereof), adjusted for differences between rates on long-term taxable and tax-exempt obligations. The Secretary calculates the adjusted Federal long-term rate as provided in paragraph (b) of this section. The Internal Revenue Service publishes the long-term tax-exempt rate and the adjusted Federal long-term rate for each month in the Internal Revenue Bulletin (see § 601.601(d)(2)(ii) of this chapter).

(b) Adjusted Federal long-term rate. The adjusted Federal long-term rate for a calendar month is the product of the Federal long-term rate determined under section 1274(d) for that month, based on annual compounding, multiplied by the adjustment factor described in paragraph (c) of this section.

(c) Adjustment factor. The adjustment factor is a percentage equal to—

(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) Effective/applicability date. The rules of this section apply to the determination of the long-term tax-exempt rate and the adjusted Federal long-term rate beginning with the rates determined during August 2016 that apply during September 2016.

Par. 4. Section 1.1288-1 is added to read as follows:
§ 1.1288-1 Adjustment of applicable Federal rate for tax-exempt obligations.

(a) In general. In applying section 483 or section 1274 to a tax-exempt obligation, the applicable Federal rate is adjusted to take into account the tax exemption for interest on the obligation. For each applicable Federal rate determined under section 1274(d), the Secretary computes a corresponding adjusted applicable Federal rate by multiplying the applicable Federal rate by the adjustment factor described in paragraph (b) of this section. The Internal Revenue Service publishes the applicable Federal rates and the adjusted applicable Federal rates for each month in the Internal Revenue Bulletin (see § 601.601(d)(2)(ii) of this chapter).

(b) Adjustment factor. The adjustment factor is a percentage equal to—

(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) Effective/applicability date. The rules of this section apply to the determination of adjusted applicable Federal rates beginning with the rates determined during August 2016 that apply during September 2016.

John Dalrymple, Deputy Commissioner for Services and Enforcement. Approved: April 8, 2016. Mark J. Mazur, Assistant Secretary of the Treasury (Tax Policy).
[FR Doc. 2016-09614 Filed 4-25-16; 8:45 am] BILLING CODE 4830-01-P
DEPARTMENT OF THE TREASURY Internal Revenue Service 26 CFR Part 1 [TD 9751] RIN 1545-BN22 PATH Act Changes to Section 1445; Correction AGENCY:

Internal Revenue Service (IRS), Treasury.

ACTION:

Correcting amendment.

SUMMARY:

This document contains corrections to final regulations (TD 9721) that were published in the Federal Register on Friday, February 19, 2016 (81 FR 8398). The final regulations are regarding the taxation of, and withholding on, foreign persons upon certain dispositions of, and distributions with respect to, United States real property interests (USRPIs).

DATES:

This correction is effective April 26, 2016 and is applicable on or after February 19, 2016.

FOR FURTHER INFORMATION CONTACT:

Milton M. Cahn or David A. Levine of the Office of Associate Chief Counsel (International) at (202) 317-6937 (not a toll-free number).

SUPPLEMENTARY INFORMATION: Background

The final regulations (TD 9751) that are the subject of this correction are under section 897 and1445 of the Internal Revenue Code.

Need for Correction

As published, the final regulations (TD 9751) contain errors that may prove to be misleading and are in need of clarification.

List of Subjects in 26 CFR Part 1

Income taxes, reporting and recordkeeping requirements.

Correction of Publication

Accordingly, 26 CFR part 1 is corrected by making the following correcting amendments:

PART 1—INCOME TAXES Paragraph 1. The authority citation for part 1 continues to read in part as follows: Authority:

26 U.S.C. 7805 * * *

Par. 3. Section 1.1445-5 is amended by revising the last sentence of paragraph (b)(3)(ii)(A) to read as follows:
§ 1.1445-5 Special rules concerning distributions and other transactions by corporations, partnerships, trusts, and estates.

(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.

Martin V. Franks, Chief, Publications and Regulations Branch, Legal Processing Division, Associate Chief Counsel, (Procedure and Administration).
[FR Doc. 2016-09666 Filed 4-25-16; 8:45 am] BILLING CODE 4830-01-P
DEPARTMENT OF JUSTICE Bureau of Prisons 28 CFR Part 550 [BOP-1168-F] RIN 1120-AB68 Drug Abuse Treatment Program AGENCY:

Bureau of Prisons, Justice.

ACTION:

Final rule.

SUMMARY:

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.

DATES:

This rule is effective on May 26, 2016.

FOR FURTHER INFORMATION CONTACT:

Sarah Qureshi, Office of General Counsel, Bureau of Prisons, phone (202) 353-8248.

SUPPLEMENTARY INFORMATION:

In this document, the Bureau revises the Residential Drug Abuse Treatment Program (RDAP) regulations to allow greater inmate participation in the program and positively impact recidivism rates. Specifically, the Bureau (1) removes the regulatory requirement for RDAP written testing because it is more appropriate to assess an inmate's progress through clinical evaluation of behavior change (the written test is no longer used in practice); (2) removes existing regulatory provisions which automatically expel inmates who have committed certain acts (e.g., abuse of drugs or alcohol, violence, attempted escape); (3) limits the time frame for review of prior offenses for early release eligibility purposes to ten years before the date of federal imprisonment; and (4) lessens restrictions relating to early release eligibility.

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:

Section 550.50 Purpose and scope. The regulation previously stated that Bureau facilities have drug abuse treatment specialists who are supervised by a Coordinator and that facilities with residential drug abuse treatment programs (RDAP) should have additional specialists for treatment in the RDAP unit. This is inaccurate. We proposed to change the regulation to explain that the Bureau's drug abuse treatment programs, which include drug abuse education, RDAP and non-residential drug abuse treatment services, are provided by the Psychology Services Department.

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.

Section 550.53 Residential Drug Abuse Treatment Program (RDAP)(f)(2). The Bureau proposed to remove subparagraph (f)(2) of § 550.53, which required inmates to pass RDAP testing procedures and referred to an RDAP exam. The RDAP program no longer includes written testing as a requirement for completion of the program. Instead, RDAP uses clinical observation and clinical evaluation of inmate behavior change to assess readiness for completion. Therefore, the current language is inaccurate and imposes a requirement upon inmates that no longer exists.

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.” 1

1Wexler, H., Falkin, G., Lipton, D., (1990). Outcome Evaluation of A Prison Therapeutic Community for Substance Abuse Treatment. Criminal Justice and Behavior, vol.17 No.1, March 1990 71-92, 1990 American Association for Correctional Psychology.

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 The Therapeutic Community: Theory, Model, and Method. New York: Springer Publishing Company, Inc. (De Leon, G. (2000).

Section 550.53(g) Expulsion from RDAP. We proposed to remove § 550.53(g)(3), which required Discipline Hearing Officers (DHOs) to remove an inmate automatically from RDAP if there is a finding that the inmate has committed a prohibited act involving alcohol, drugs, violence, escape, or any 100-level series incident.

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.

Section 550.55(b) Inmates not eligible for early release. We proposed to modify language precluding 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.

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 include arson and kidnaping, as they also are crimes of an inherently violent nature and particular dangerousness to the public.

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 (e.g., Alaska Statutes sec. 11.31.100(d), N.C. Gen Stat. sec. 14-2.5, Tex. Penal Code sec. 15.01(d), and Wash. Rev. Code sec. 9A.28.020(3)). Therefore, eliminating the analysis of prior misdemeanor convictions may result in offenders convicted of attempting to commit a precluding offense being found eligible for early release, despite the provisions of 28 CFR 550.55(b)(6).

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 or supervision revocation. Revocation was defined as occurring only when the revocation was solely the result of a technical violation of one or more conditions of supervision (e.g., detected drug use, failure to report to probation officer). Drug use as a post-release outcome, for the purposes of the study, referred to the first occurrence of drug or alcohol use as reported by U.S. Probation officers (i.e., a positive urinalysis (u/a), refusal to submit to a urinalysis, admission of drug use to the probation officer, or a positive breathalyser test).

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.

Section 550.56 Community Transitional Drug Abuse Treatment Program (TDAT). In addition to changing “Transitional Drug Abuse Treatment Program (TDAT)” to “Community Treatment Services (CTS)” throughout this regulation as indicated earlier, we also deleted paragraph (c), which appears to require that inmates successfully completing RDAP and participating in transitional treatment programming must participate in such programming for one hour per month. The provision in the regulation was an error. It did not relate to Community Treatment Services (CTS), but instead related to RDAP. It was therefore unnecessary to retain this language. The substance of this language will be retained as implementing text in the relevant policy statement as part of RDAP procedures.

Comments: We received a total of 187 comments during the comment period. Approximately 77 were in support of the proposed rule. Eighteen “comments” sent, although captioned as “comments,” were not properly phrased as comments because they either related to personal accounts of inmate eligibility for drug abuse treatment and/or early release eligibility, or simply did not address issues raised in the proposed rule. We address the issues raised in the remaining 92 comments below.

Discussion of Comments: In summary, for the reasons discussed below, the Bureau adopts the regulatory changes of the proposed rule without change.

Comment: Inmates with gun possession offenses should be eligible for early release.

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 (See Lopez v. Davis, 531 U.S. 230 (2001)). The Director of the Bureau exercises discretion to deny early release eligibility to inmates who have a felony conviction for the offenses listed in § 550.55(b)(5)(i)-(iv) because commission of such offenses illustrates a readiness to endanger the public. Denial of early release to all inmates convicted of these offenses rationally reflects the view that, in committing such offenses, these inmates displayed a readiness to endanger another's life.

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 Lopez v. Davis, “denial of early release to all inmates who possessed a firearm in connection with their current offense rationally reflects the view that such inmates displayed a readiness to endanger another's life.” Id. at 240. The Bureau adopts this reasoning. The Bureau recognizes that there is a significant potential for violence from criminals who carry, possess or use firearms while engaged in felonious activity. Thus, in the interest of public safety, these inmates should not be released months in advance of completing their sentences.

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.

Comment: All inmates participating in any kind of drug treatment should be eligible for early release, violent offenders should be eligible, non-U.S. citizens should be eligible:

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 deny early release eligibility to inmates who have a prior felony or misdemeanor conviction for theses offenses (within the ten years prior to the date of sentencing for the inmate's current commitment) 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.”

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.

Comment: All inmates should be eligible for drug treatment.

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 drug abuse treatment to any inmates. We offer several program options, such as a drug abuse education course or non-residential drug abuse treatment to inmates who have drug problems, as provided in § 550.52, even if they do not meet the admission criteria for the RDAP.

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.

Comment: Inmates eligible for up to a year of early release should have it taken from “time served.”

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.

Comment: Inmates who escape should be removed from RDAP.

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 automatically from RDAP if there is a finding by the Discipline Hearing Officer (DHO) that the inmate has committed a prohibited act involving alcohol, drugs, violence, escape, or any other 100-level series incident. As we stated in the proposed rule, removing the language would give the Bureau more latitude and clinical discretion when determining which inmates should be expelled from the program. The final rule retains this revised language. The Bureau will retain the ability to remove inmates if they commit a 100-level series incident, if, under the criteria in (g)(2), they are given at least one formal warning before removal or when the documented lack fo compliance with program standards is of such mangnitude that an inmate's continued presence would create an immediate and ongoing problem for staff and other inmates, but automatic expulsion due to commission of a 100-level prohibited act will not occur.

As stated above, because the automatic expulsion language is deleted, inmates will 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.

Comment: Drug treatment specialists should have some skills in addiction treatment or addiction education.

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.

Comment: Increase incentives for those who participate in drug treatment but are not eligible for early release.

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.

Comment: RDAP waiting lists are too long.

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.

Comment: RDAP should be only 6 months instead of 9 months.

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: Outcome Evaluation of A Prison Therapeutic Community for Substance Abuse Treatment. Criminal Justice and Behavior, Vol. 17 No. 1, March 1990. In this study, of the male inmates who participated in a drug treatment program, the percentage of those who had no parole violations during community supervision rose from 49 percent for those who remained less than three months to 77 percent for parolees who were in the program between nine and twelve months while in prison. Similar findings were obtained for females, although the percentage of those who had no parole violations was higher than for their male counterparts (79 percent for those who remained in treatment less than three months to the entire program and 92 percent for those who completed the nine- to twelve-month program). Additionally, the study also found that individuals who participate in a prison-based drug treatment for longer than twelve months do not have outcomes that are as successful as those who participated for nine to twelve months. An intensive residential treatment period between nine and twelve months near the end of an offender's sentence, coupled with individually tailored community transitional services program, may provide the best clinical outcomes and optimal resource utilization.

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.

Comment: Staff should receive training regarding lesbian, gay, bisexual and transgender sensitivity issues.

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.

Executive Orders 12866 and 13563

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 (i.e., prior to the changes made in this rule), 18,102 inmates participated in the residential drug abuse treatment program in FY 2014. 18 U.S.C. 3621(e)(2) allows the Bureau to grant a non-violent offender up to one year off his/her term of imprisonment for successful completion of the RDAP. In FY 2014, 5,229 inmates received a reduction in their term of imprisonment resulting in a cost avoidance of nearly $50 million based on this law (average reduction was 10.4 months and the marginal cost avoidance was $10,994 annually). The changes made by this rule will likely increase the number of current inmates who benefit from the RDAP program and increase the number of inmates who may be eligible for early release, thereby resulting in cost avoidance to the Bureau in the future.

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.

Executive Order 13132

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.

Regulatory Flexibility Act

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.

Unfunded Mandates Reform Act of 1995

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.

Small Business Regulatory Enforcement Fairness Act of 1996

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 major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.

List of Subjects in 28 CFR Part 550: Prisoners. Kathleen M. Kenney, Assistant Director/General Counsel, Federal Bureau of Prisons.

Accordingly, for the reasons set forth in the preamble, part 550 of title 28 of the Code of Federal Regulations is amended as follows:

PART 550—DRUG PROGRAMS 1. The authority citation for part 550 continues to read as follows: Authority:

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).

2. Revise § 550.50 to read as follows:
§ 550.50 Purpose and scope.

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.

3. Amend § 550.53 by revising paragraphs (a)(1), (a)(3), and (f), removing paragraph (g)(3), and redesignating paragraph (g)(4) as new paragraph (g)(3) to read as follows:
§ 550.53 Residential Drug Abuse Treatment Program (RDAP).

(a) * * *

(1) Unit-based component. Inmates must complete a course of activities provided by the Psychology Services Department in a treatment unit set apart from the general prison population. This component must last at least six months.

(3) Community Treatment Services (CTS). Inmates who have completed the unit-based program and (when appropriate) the follow-up treatment and transferred to a community-based program must complete CTS to have successfully completed RDAP and receive incentives. The Warden, on the basis of his or her discretion, may find an inmate ineligible for participation in a community-based program; therefore, the inmate cannot complete RDAP.

(f) Completing the unit-based component of RDAP. To complete the unit-based component of RDAP, inmates must have satisfactory attendance and participation in all RDAP activities.

4. In § 550.55, revise paragraph (b)(4) introductory text and paragraph (b)(6), to read as follows:
§ 550.55 Eligibility for early release.

(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

5. Revise § 550.56 to read as follows:
§ 550.56 Community Treatment Services (CTS).

(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.

[FR Doc. 2016-09613 Filed 4-25-16; 8:45 am] BILLING CODE 4410-05-P
DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 117 [Docket No. USCG-2016-0338] Drawbridge Operation Regulation; Willamette River, Portland, OR AGENCY:

Coast Guard, DHS.

ACTION:

Notice of deviation from regulation.

SUMMARY:

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.

DATES:

This deviation is effective from 7 p.m. to 11:30 p.m. on June 4, 2016.

ADDRESSES:

The docket for this deviation, [USCG-2016-0338] is available at http://www.regulations.gov. Type the docket number in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this deviation.

FOR FURTHER INFORMATION CONTACT:

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

SUPPLEMENTARY INFORMATION:

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.

Dated: April 20, 2016. Steven M. Fischer, Bridge Administrator, Thirteenth Coast Guard District.
[FR Doc. 2016-09629 Filed 4-25-16; 8:45 am] BILLING CODE 9110-04-P
DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 117 [Docket No. USCG-2016-0285] Drawbridge Operation Regulation; Atlantic Intracoastal Waterway, South Branch of the Elizabeth River, Chesapeake, VA AGENCY:

Coast Guard, DHS.

ACTION:

Notice of deviation from drawbridge regulation.

SUMMARY:

The Coast Guard has issued a temporary deviation from the operating schedule that governs the 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.

DATES:

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.

ADDRESSES:

The docket for this deviation, [USCG-2016-0285] is available at http://www.regulations.gov. Type the docket number in the “SEARCH” box and click “SEARCH”. Click on Open Docket Folder on the line associated with this deviation.

FOR FURTHER INFORMATION CONTACT:

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

SUPPLEMENTARY INFORMATION:

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.

Dated: April 21, 2016. Hal R. Pitts, Bridge Program Manager, Fifth Coast Guard District.
[FR Doc. 2016-09659 Filed 4-25-16; 8:45 am] BILLING CODE 9110-04-P
DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 117 [Docket No. USCG-2016-0307] Drawbridge Operation Regulation; Three Mile Slough, Rio Vista, CA AGENCY:

Coast Guard, DHS.

ACTION:

Notice of deviation from drawbridge regulation.

SUMMARY:

The Coast Guard has issued a temporary deviation from the operating schedule that governs the 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.

DATES:

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.

ADDRESSES:

The docket for this deviation, [USCG-2016-0307], is available at http://www.regulations.gov. Type the docket number in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this deviation.

FOR FURTHER INFORMATION CONTACT:

If you have questions on this temporary deviation, call or email David H. Sulouff, Chief, Bridge Section, Eleventh Coast Guard District; telephone 510-437-3516, email [email protected].

SUPPLEMENTARY INFORMATION:

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 transits to minimize any impact caused by the temporary deviation.

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

Dated: April 12, 2016. D.H. Sulouff, District Bridge Chief, Eleventh Coast Guard District.
[FR Doc. 2016-09676 Filed 4-25-16; 8:45 am] BILLING CODE 9110-04-P
ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R03-OAR-2016-0002; FRL-9945-47-Region 3] 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 AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Direct final rule.

SUMMARY:

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).

DATES:

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 Federal Register and inform the public that the rule will not take effect.

ADDRESSES:

Submit your comments, identified by Docket ID No. EPA-R03-OAR-2016-0002 at http://www.regulations.gov, or via email to [email protected] For comments submitted at Regulations.gov, follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. For either manner of submission, EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be confidential business information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. EPA will generally not consider comments or comment contents located outside of the primary submission (i.e., on the web, cloud, or other file sharing system). For additional submission methods, please contact the person identified in the FOR FURTHER INFORMATION CONTACT section. For the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT:

Maria A. Pino, (215) 814-2181, or by email at [email protected]

SUPPLEMENTARY INFORMATION: I. Background

Ground-level ozone is formed when nitrogen oxides (NOX) and volatile organic compounds (VOC) react in the presence of sunlight. Referred to as ozone precursors, these two pollutants are emitted by many types of pollution sources, including motor vehicles, power plants, industrial facilities, and area wide sources, such as consumer products and lawn and garden equipment. Scientific evidence indicates that adverse public health effects occur following a person's exposure to ozone. These effects are more pronounced in children and adults with lung disease. Breathing air containing ozone can reduce lung function and inflame airways, which can increase respiratory symptoms and aggravate asthma or other lung diseases. In 1979, in response to this scientific evidence, EPA promulgated the first ozone NAAQS, the 0.12 part per million (ppm) 1-hour ozone NAAQS. See 44 FR 8202 (February 8, 1979). EPA had previously promulgated a NAAQS for total photochemical oxidants.

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. See 73 FR 16436 (March 27, 2008). On May 21, 2012, the Allentown-Bethlehem-Easton, Lancaster, Pittsburgh-Beaver Valley, Reading, and Philadelphia-Wilmington-Atlantic City areas were designated as marginal nonattainment for the more stringent 2008 8-hour ozone NAAQS. 77 FR 30088.

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, i.e., the Allentown-Bethlehem-Easton, Lancaster, Pittsburgh-Beaver Valley, and Reading nonattainment areas, and the Pennsylvania portion of the Philadelphia-Wilmington-Atlantic City nonattainment area.

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. See 80 FR 65292 (October 26, 2015). As required by section 107(d) of the CAA, EPA intends to complete the initial designation process within two years of promulgation of the 2015 ozone NAAQS, i.e., no later than October 1, 2017. This rulemaking does not address the 2015 ozone NAAQS.

II. Summary of SIP Revision

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 NOX, VOC, and carbon monoxide (CO).

Tables 1 through 5 summarize the 2011 VOC, NOX, and CO emission inventory by source sector for Pennsylvania's five marginal nonattainment areas. Annual emissions are given in tons per year (tpy), and summer weekday emissions are given in tons per day (tpd).

Table 1—Summary of 2011 Emissions for the Allentown-Bethlehem-Easton Area Source
  • sector
  • Summer weekday
  • (tpd)
  • VOC NOX CO Annual
  • (tpy)
  • VOC NOX CO
    Point 3.5844 24.0763 44.5565 1,298.2944 8,882.4313 15,980.1187 Nonpoint 52.4620 4.3983 10.7226 21,874.0747 2,365.4084 17,758.0824 Nonroad 7.3491 8.4916 81.1983 2,624.7749 2,372.2160 26,305.6727 Highway 17.1800 35.5600 172.5900 6,169.9800 12,833.6100 76,800.1200 Total 80.5755 72.5262 309.0674 31,967.1240 26,453.6657 136,843.9938
    Table 2—Summary of 2011 Emissions for the Lancaster Area Source
  • sector
  • Summer weekday
  • (tpd)
  • VOC NOX CO Annual
  • (tpy)
  • VOC NOX CO
    Point 6.0096 3.3279 4.9232 2,161.8035 1,225.2810 1,811.4742 Nonpoint 31.6881 4.1839 14.0763 13,262.0758 2,043.6030 13,992.7848 Nonroad 9.4751 8.1193 75.9137 3,854.6239 2,369.2314 26,064.9100 Highway 11.9900 24.4200 121.0300 4,233.6300 8,879.1200 52,716.3700 Total 59.1628 40.0511 215.9432 23,512.1332 14,571.2354 94,585.5390
    Table 3—Summary of 2011 Emissions for the Pennsylvania Portion of the Philadelphia-Wilmington-Atlantic City Area Source
  • sector
  • Summer weekday
  • (tpd)
  • VOC NOX CO Annual
  • (tpy)
  • VOC NOX CO
    Point 13.8162 39.8652 35.4149 5,044.1788 14,466.8247 12,605.2393 Nonpoint 144.0575 27.7843 24.6034 55,434.4159 14,394.6064 27,032.5230 Nonroad 41.8480 39.2817 510.4407 14,368.4324 11,090.2074 162,745.4696 Highway 60.5800 123.3900 631.6900 21,497.8300 43,869.0400 259,855.7300 Total 260.3017 230.3212 1,202.1490 96,344.8571 83,820.6785 462,238.9619
    Table 4—Summary of 2011 Emissions for the Pittsburgh-Beaver Valley Area Source
  • sector
  • Summer weekday
  • (tpd)
  • VOC NOX CO Annual
  • (tpy)
  • VOC NOX CO
    Point 10.6595 160.0714 120.1636 3,900.9235 57,329.8382 43,988.6819 Nonpoint 191.5216 65.3470 85.7973 63,326.9810 27,064.6374 49,340.2937 Nonroad 24.8491 27.7845 284.5770 9,281.1724 7,908.6977 93,498.8397 Highway 43.5400 88.8500 446.6400 16,584.5300 32,360.4000 210,881.4800 Total 270.5702 342.0529 937.1779 93,093.6069 124,663.5733 397,709.2953
    Table 5—Summary of 2011 Emissions for the Reading Area Source
  • sector
  • Summer weekday
  • (tpd)
  • VOC NOX CO Annual
  • (tpy)
  • VOC NOX CO
    Point 3.4007 8.6847 5.4075 1,223.7618 3,139.5588 1,946.4482 Nonpoint 32.6838 4.2975 11.0720 13,462.6586 2,055.8245 11,792.2040 Nonroad 4.5626 5.4649 46.8275 1,650.9746 1,528.6220 15,312.2966 Highway 9.8600 22.1100 98.8800 3,479.3500 8,073.1900 43,022.4700 Total 50.5071 40.5571 162.1870 19,816.7450 14,797.3983 72,073.4188

    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 http://www.regulations.gov, Docket ID No. EPA-R03-OAR-2016-0002.

    III. Final Action

    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 Federal Register, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision if adverse comments are filed. This rule will be effective on June 27, 2016 without further notice unless EPA receives adverse comment by May 26, 2016. If EPA receives adverse comment, EPA will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. EPA will address all public comments in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time.

    IV. Statutory and Executive Order Reviews A. General Requirements

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

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

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

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

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

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

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

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

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

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

    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.

    B. Submission to Congress and the Comptroller General

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

    C. Petitions for Judicial Review

    Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by 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 Federal Register, rather than file an immediate petition for judicial review of this direct final rule, so that EPA can withdraw this direct final rule and address the comment in the proposed rulemaking action.

    This action 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)).

    List of Subjects in 40 CFR Part 52

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

    Dated: April 8, 2016. Shawn M. Garvin, Regional Administrator, Region III.

    40 CFR part 52 is amended as follows:

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

    42 U.S.C. 7401 et seq.

    Subpart NN—Pennsylvania 2. In § 52.2020, the table in paragraph (e)(1) is amended by adding the entry for “2011 Base Year Inventories for the 2008 8-Hour Ozone National Ambient Air Quality Standard” at the end of the table to read as follows:
    § 52.2020 Identification of plan.

    (e) * * *

    (1) * * *

    Name of non-regulatory SIP revision Applicable geographic area State submittal date EPA approval
  • date
  • Additional
  • explanation
  • *         *         *         *         *         *         * 2011 Base Year Inventories for the 2008 8-Hour Ozone National Ambient Air Quality Standard Allentown-Bethlehem-Easton, Lancaster, Pittsburgh-Beaver Valley, and Reading nonattainment areas and the Pennsylvania portion of the Philadelphia-Wilmington-Atlantic City nonattainment area 9/30/15 4/26/16 [Insert Federal Register citation] See § 52.2036(bb).
    3. Section 52.2036 is amended by adding paragraph (bb) to read as follows:
    § 52.2036 Base year emissions inventory.

    (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 (NOX), volatile organic compounds (VOC), and carbon monoxide (CO).

    [FR Doc. 2016-09591 Filed 4-25-16; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R04-OAR-2015-0150; FRL-9945-62-Region 4] Air Quality Plans; North Carolina; Infrastructure Requirements for the 2010 Sulfur Dioxide National Ambient Air Quality Standard AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    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 (SO2) national ambient air quality standard (NAAQS). The CAA requires that each state adopt and submit a SIP for the implementation, maintenance and enforcement of each NAAQS promulgated by EPA, which is commonly referred to as an “infrastructure SIP submission.” DAQ certified that the North Carolina SIP contains provisions that ensure the 2010 1-hour SO2 NAAQS is implemented, enforced, and maintained in North Carolina. EPA has determined that the North Carolina's infrastructure SIP submission, provided to EPA on March 18, 2014, satisfies certain required infrastructure elements for the 2010 1-hour SO2 NAAQS.

    DATES:

    This rule will be effective May 26, 2016.

    ADDRESSES:

    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 www.regulations.gov Web site. Although listed in the index, some information is not publicly available, i.e., Confidential Business Information or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through www.regulations.gov or in hard copy at 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. EPA requests that if at all possible, you contact the person listed in the FOR FURTHER INFORMATION CONTACT section to schedule your inspection. The Regional Office's official hours of business are Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding Federal holidays.

    FOR FURTHER INFORMATION CONTACT:

    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 [email protected] or via telephone at (404) 562-9031.

    SUPPLEMENTARY INFORMATION: I. Background and Overview

    On June 22, 2010 (75 FR 35520), EPA revised the primary SO2 NAAQS to an hourly standard of 75 parts per billion (ppb) based on a 3-year average of the annual 99th percentile of 1-hour daily maximum concentrations. Pursuant to section 110(a)(1) of the CAA, states are required to submit SIPs meeting the applicable requirements of section 110(a)(2) within three years after promulgation of a new or revised NAAQS or within such shorter period as EPA may prescribe. Section 110(a)(2) requires states to address basic SIP elements such as requirements for monitoring, basic program requirements and legal authority that are designed to assure attainment and maintenance of the NAAQS. States were required to submit such SIPs for the 2010 1-hour SO2 NAAQS to EPA no later than June 2, 2013.1

    1 Today, EPA is providing clarification for an inadvertent typographical error that was included in the February 25, 2016, proposed rulemaking, for this final action. In the February 25, 2016, proposed rulemaking it was stated that the 2010 1-hour SO2 NAAQS infrastructure SIPs were due no later than June 22, 2013. The 2010 1-hour SO2 NAAQS infrastructure SIPs were actually due to EPA from states no later than June 2, 2013.

    In a proposed rulemaking published on February 25, 2016, EPA proposed to approve North Carolina's 2010 1-hour SO2 NAAQS infrastructure SIP submission submitted on March 18, 2014, 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).2 See 81 FR 9398. The details of North Carolina's submission and the rationale for EPA's actions are explained in the proposed rulemaking. Comments on the proposed rulemaking were due on or before March 28, 2016. EPA received no comments on the proposed action.

    2 On November 3, 2015, in a previous rulemaking, EPA approved the requirements for state boards for North Carolina in relation to the 2010 SO2 NAAQS. See 80 FR 67645.

    II. Final Action

    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 SO2 NAAQS. EPA is taking final action to approve portions of North Carolina's infrastructure SIP submission for the 2010 1-hour SO2 NAAQS because the submission is consistent with section 110 of the CAA.

    III. Statutory and Executive Order Reviews

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

    • Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);

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

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

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

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

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

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

    • is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the 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 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

    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. See section 307(b)(2).

    List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Reporting and recordkeeping requirements, Sulfur dioxide.

    Dated: April 14, 2016. Heather McTeer Toney Regional Administrator, Region 4.

    40 CFR part 52 is amended as follows:

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

    42 U.S.C. 7401 et seq.

    Subpart II—North Carolina 2. Section 52.1770(e) is amended by adding a new entry “110(a)(1) and (2) Infrastructure Requirements for the 2010 1-hour SO2 NAAQS” at the end of the table to read as follows:
    § 52.1770 Identification of plan.

    (e) * * *

    EPA-Approved North Carolina Non-Regulatory Provisions Provision State effective date EPA approval date Federal Register citation Explanation *         *         *         *         *         *         * 110(a)(1) and (2) Infrastructure Requirements for the 2010 1-hour SO2 NAAQS 3/18/2014 4/26/2016 [Insert citation of publication in Federal Register] With the exception of the PSD permitting requirements for major sources of sections 110(a)(2)(C) and (J), the interstate transport requirements of section 110(a)(2)(D)(i)(I) and (II) (prongs 1, 2, 3, and 4), and the state board requirements of section 110(E)(ii).
    [FR Doc. 2016-09587 Filed 4-25-16; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 48 CFR Parts 1535 and 1552 [EPA-HQ-OARM-2016-0046; FRL 9941-86-OARM] Environmental Protection Agency Acquisition Regulation; Institutional Oversight of Life Sciences Dual Use Research of Concern AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Direct final rule.

    SUMMARY:

    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.

    DATES:

    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 Federal Register informing the public that the rule will not take effect.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-HQ-OARM-2016-0046; FRL 9941-86-OARM at http://www.regulations.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. The EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (i.e. on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

    FOR FURTHER INFORMATION CONTACT:

    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: [email protected]

    SUPPLEMENTARY INFORMATION: I. Direct Final Rule

    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 Federal Register for comment on September 25, 2014. If EPA receives adverse comment, we will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. Any parties interested in commenting must do so at this time.

    II. Applicability

    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 dual use research of concern, and if it meets the definition, ensure the research is conducted and communicated responsibly.

    III. Submitting Comments

    A. Do not submit CBI to EPA through the Web site http://www.regulations.gov or by email. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as CBI, and then identify electronically within the disk or CD-ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

    B. Tips for Preparing Your Comments. When submitting comments, see the commenting tips at: http://www2.epa.gov/dockets/commenting-epa-dockets and remember to:

    • Identify the rulemaking by docket number and other identifying information (subject heading, Federal Register date and page number).

    • 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.

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

    This action is not a “significant regulatory action” 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).

    B. Paperwork Reduction Act

    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.

    Respondents/affected entities: Private Industry; Federal Government (in the form of government-owned/contractor-operated laboratories).

    Respondent's obligation to respond: Mandatory (48 CFR Chapter 15, Part 52 and Part 35).

    Estimated number of respondents: 12 to 24.

    Frequency of response: Only once, or as necessary.

    Total estimated burden: 36 to 64 hours per year.

    Total estimated cost: $1,440 to $4,320.

    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.

    C. Regulatory Flexibility Act (RFA), as Amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et. seq.

    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).

    D. Unfunded Mandates Reform Act

    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.

    E. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132.

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

    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.

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

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

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

    This action is not subject to Executive Order 13211 (66 FR 28335 (May 22, 2001), because it is not a significant regulatory action under Executive Order 12866.

    I. National Technology Transfer and Advancement Act of 1995 (NTTAA)

    This action does not involve technical standards.

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

    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.

    K. Congressional Review Act

    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).

    List of Subjects 48 CFR Part 1535

    Environmental protection, Dual use research, Institutional oversight, Life sciences, Research and development.

    48 CFR Part 1552

    Environmental protection, Dual use research, Institutional oversight, Life sciences, Research and development.

    Dated: April 19, 2016. John R. Bashista, Director, Office of Acquisition Management.

    For the reasons stated in the preamble, 48 CFR parts 1535 and 1552 are amended as set forth below:

    PART 1535—RESEARCH AND DEVELOMENT CONTRACTING 1. The authority citation for part 1535 continues to read as follows: Authority:

    Sec. 205(c), 63 Stat. 390, as amended, 40 U.S.C. 486(c).

    2. Amend section 1535.007 by adding paragraph (c) to read as follows:
    1535.007 Solicitations.

    (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”.

    3. Amend section 1535.007-70 by adding paragraph (h) to read as follows:
    1535.007-70 Contract clauses.

    (h) Contracting officers shall insert 48 CFR 1552.235-82—“Institutional Oversight of Life Sciences Dual Use Research of Concern” into all solicitations containing 48 CFR 1552.235-81 and in existing contracts that are bilaterally modified at the request of an EPA funding/requesting office in accordance with EPA Order 1000.19.

    PART 1552—SOLICITATION PROVISIONS AND CONTRACT CLAUSES 4. The authority citation for part 1552 continues to read as follows: Authority:

    5 U.S.C. 301 as amended, 40 U.S.C. 486(c); and 41 U.S.C. 418b.

    5. Add section 1552.235-81 to read as follows:
    1552.235-81 Institutional oversight of life Sciences dual use research of concern—representation.

    As prescribed in 1535.007(c), insert the following solicitation provision:

    Institutional Oversight of Life Sciences Dual Use Research of Concern—Representation (JUNE 2016)

    (a) Definitions. As used in this provision—

    Institution means any government agency (Federal, State, tribal, or local), academic institution, corporation, company, partnership, society, association, firm, sole proprietorship, or other legal entity conducting research.

    Life Sciences research means a systematic investigation designed to develop or contribute to generalizable knowledge involving living organisms (e.g., microbes, human beings, animals, and plants) and their products, including all disciplines and methodologies of biology such as aerobiology, agricultural science, plant science, animal science, bioinformatics, genomics, proteomics, microbiology, synthetic biology, virology, molecular biology, environmental science, public health, modeling, engineering of living systems, and all applications of the biological sciences. The term is meant to encompass the diverse approaches to understanding life at the level of ecosystems, populations, organisms, organs, tissues, cells, and molecules. Life sciences research does not include routine product testing, quality control, mapping, collection of general-purpose statistics, routine monitoring and evaluation of an operational program, observational studies, and the training of scientific and technical personnel.

    (b) Representation. By submission of its offer or quotation, the Offeror represents that if it is:

    (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” (iDURC Policy), even if the research is not supported by United States Government funds; or

    (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 iDURC Policy; then the Offeror will comply with the iDURC Policy.

    (c) Resources. Information about dual use research in the life sciences, as well as specific details on the iDURC Policy can be found on the U.S. Department of Health and Human Services Dual Use Research of Concern page: http://www.phe.gov/s3/dualuse/Pages/default.aspx.

    (End of Provision)

    6. Add 1552.235-82 to read as follows:
    1552.235-82 Institutional oversight of life sciences dual use research of concern.

    As prescribed in 1535.007-70(h), insert the following contract clause:

    Institutional Oversight Of Life Sciences Dual Use Research Of Concern (JUNE 2016)

    (a) Definitions. As used in this clause—

    Institution means any government agency (Federal, State, tribal, or local), academic institution, corporation, company, partnership, society, association, firm, sole proprietorship, or other legal entity conducting research.

    Life Sciences research means a systematic investigation designed to develop or contribute to generalizable knowledge involving living organisms (e.g., microbes, human beings, animals, and plants) and their products, including all disciplines and methodologies of biology such as aerobiology, agricultural science, plant science, animal science, bioinformatics, genomics, proteomics, microbiology, synthetic biology, virology, molecular biology, environmental science, public health, modeling, engineering of living systems, and all applications of the biological sciences. The term is meant to encompass the diverse approaches to understanding life at the level of ecosystems, populations, organisms, organs, tissues, cells, and molecules. Life sciences research does not include routine product testing, quality control, mapping, collection of general-purpose statistics, routine monitoring and evaluation of an operational program, observational studies, and the training of scientific and technical personnel.

    (b) Compliance. The Contractor agrees that it shall comply with the “United States Government Policy for Institutional Oversight of Life Sciences Dual Use Research of Concern” (iDURC Policy) during the period of performance of this contract, including all option periods or other extensions, if the Contractor:

    (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 iDURC Policy, even if the research is not supported by United States Government funds; or

    (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 iDURC Policy.

    (c) Resources. Information about dual use research in the life sciences as well as specific details on the iDURC Policy can be found on the U.S. Department of Health and Human Services Dual Use Research of Concern page: http://www.phe.gov/s3/dualuse/Pages/default.aspx.

    (End of clause)

    [FR Doc. 2016-09601 Filed 4-25-16; 8:45 am] BILLING CODE 6560-50-P
    NATIONAL AERONAUTICS AND SPACE ADMINISTRATION 48 CFR Parts 1815, 1842, and 1852 NASA Federal Acquisition Regulation Supplement AGENCY:

    National Aeronautics and Space Administration.

    ACTION:

    Technical amendments.

    SUMMARY:

    NASA is making technical amendments to the NASA FAR Supplement (NFS) to provide needed editorial changes.

    DATES:

    Effective: April 26, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Manuel Quinones, NASA, Office of Procurement, Contract and Grant Policy Division, via email at [email protected], or telephone (202) 358-2143.

    SUPPLEMENTARY INFORMATION: I. Background

    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.

    List of Subjects in 48 CFR Parts 1815, 1842, and 1852

    Government procurement.

    Manuel Quinones, NASA FAR Supplement Manager.

    Accordingly, 48 CFR parts 1815, 1842, and 1852 are amended as follows:

    1. The authority citation for parts 1815, 1842, and 1852 continues to read as follows: Authority:

    51 U.S.C. 20113(a) and 48 CFR chapter 1.

    PART 1815—CONTRACTING BY NEGOTIATION
    1815.408-70 [Amended]
    2. Amend section 1815.408-70, in paragraph (c) by removing “1815.215-85” and adding “1852.215-85” in its place.
    PART 1842—CONTRACT ADMINISTRATION AND AUDIT SERVICES 3. Add sections 1842-7002 and 1842-7003 to subpart 1842.70 to read as follows:
    1842.7002 Travel outside of the United States.

    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.

    1842.7003 Emergency medical services and evacuation.

    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.

    PART 1852—SOLICITATION PROVISIONS AND CONTRACT CLAUSES
    1852.215-79 [Amended]
    4. Amend the introductory text of section 1852.215-79 by removing “1815.407-70(b)” and adding “1815.408-70(b)” in its place.
    1852.217-72 [Amended]
    5. Amend the introductory text of section 1852.217-72 by removing “1817.7302(b)” and adding “1817.7002(b)” in its place.
    1852.223-73 [Amended]
    6. Amend section 1852.223-73, in ALTERNATE I, by removing “1823.7001(c)(1)” and adding “1823.7001(c)” in its place.
    1852.223-75 [Amended]
    7. Amend the introductory text of section 1852.223-75 by removing “1823.7001(d)” and adding “1823.7001(e)(1)” and in the introductory text of ALTERNATE I removing “1823.7001(d)(2)” and adding “1823.7001(e)(2)”in their place.
    1852.227-88 [Amended]
    8. Amend the introductory text of section 1852.227-88 by removing “1827.409(m)” and adding “1827.409(m)(1)” in its place.
    1852.228-71 [Amended]
    9. Amend the introductory text of section 1852.228-71 by removing “1828.311-2” and adding “1828.311-270(a)” in its place.
    1852.239-70 [Amended]
    10. Amend the introductory text of section 1852.239-70 by removing “1839.106-70(a)(1)” and adding “1839.107-70(a)(1)” and in the introductory text of ALTERNATE I removing “1839.7008(b)” and adding “1839.107-70(a)(2)”in their place.
    1852.245-73 [Amended]
    11. Amend the introductory text of section 1852.245-73 by removing “1845.106-70(d)” and adding “1845.107-70(d)” in its place.
    1852.245-82 [Amended]
    12. Amend the introductory text of section 1852.245-82 by removing “1845.106-70(m)” and adding “1845.107-70(m)” in its place.
    1852.245-83 [Amended]
    13. Amend the introductory text of section 1852.245-83 by removing “1845.106-70(n)” and adding “1845.107-70(n)” in its place.
    1852.246-73 [Amended]

    14. Amend the introductory text of section 1852.246-73 by removing “1845.370(b)” and adding “1846.370” in its place.

    [FR Doc. 2016-09588 Filed 4-25-16; 8:45 am] BILLING CODE 7510-13-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 300 [Docket No. 150924885-6324-02] RIN 0648-BF38 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 AGENCY:

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

    ACTION:

    Final rule.

    SUMMARY:

    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.

    DATES:

    This rule is effective May 26, 2016.

    ADDRESSES:

    Copies of the Regulatory Impact Review and other supporting documents prepared for this final rule are available via the Federal eRulemaking Portal: http://www.regulations.gov, docket NOAA-NMFS-2015-0158 or by contacting the Regional Administrator, William W. Stelle, Jr., NMFS West Coast Region, 7600 Sand Point Way NE., Bldg 1, Seattle, WA 98115-0070, or [email protected]

    FOR FURTHER INFORMATION CONTACT:

    Rachael Wadsworth, NMFS, West Coast Region, 562-980-4036.

    SUPPLEMENTARY INFORMATION: Background

    On December 28, 2015, NMFS published a proposed rule in the Federal Register (80 FR 80741) to implement IATTC Recommendation C-12-11 (IATTC—WCPFC Overlap Area); the IATTC adopted this Recommendation at its 84th meeting in October 2012. The convention areas for the IATTC and WCPFC overlap in the Pacific Ocean waters within a rectangular area bounded by 50° S. latitude, 150° W. longitude, 130° W. longitude, and 4° S. latitude (“Area of Overlap”). Recommendation C-12-11 calls for each flag State member, if it is a member of both organizations, to decide, for a period of not less than 3 years, whether IATTC or WCPFC conservation and management measures will apply to vessels listed in the registers of both organizations while fishing in the Area of Overlap. The proposed rule contained additional background information, including information on the IATTC, the international obligations of the United States as an IATTC member, and the need for regulations. The 30-day public comment period for the proposed rule closed on January 27, 2016.

    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 et seq.), as amended on November 5, 2015, by title II of Public Law 114-81. The recent amendments provide that the Secretary of Commerce, in consultation with the Secretary of State and, with respect to enforcement measures, the Secretary of the Department of Homeland Security, may promulgate such regulations as may be necessary to carry out U.S. international obligations under the Convention, including recommendations and decisions adopted by the IATTC. The Secretary's authority to promulgate such regulations has been delegated to NMFS.

    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 m3, which is close to the 31,775 m3 limit for the United States.

    Public Comments and Responses

    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.

    Comment 1: Recently, the fishing effort of much of the American Samoan fleet has shifted from the WCPFC to the IATTC Convention Area; therefore, the commenter opposes this proposed rule to apply WCPFC regulations to the Area of Overlap instead of IATTC regulations. Due to the lack of SPTT licenses, the U.S. purse seine fleet has been prohibited from fishing in the SPTT Licensing Area and 15 U.S. flagged purse seiners are utilizing their historical rights to fish in the IATTC Convention Area. Because these vessels would now be following IATTC regulations, the statement made to support the proposed rule is no longer accurate: “. . . the U.S. fisheries impacted by this rulemaking occur mostly in the WCPFC Area.”

    Response: As described in the preamble, NMFS recognizes that this has been an unusual year for the U.S purse seine fleet fishing under the SPTT and that there has been uncertainty in the structure and future of the SPTT. At the time the proposed rule published, no SPTT licenses had been issued to U.S. vessels for 2016, and large purse seine vessels that typically fish in the WCPO requested to be added to the IATTC Regional Vessel Register for fishing access in the EPO. However, on February 29, 2016, the Pacific Island parties and the United States finalized revised terms of access for 2016. While the future of the SPTT remains uncertain, U.S. purse seine vessels have been issued SPTT licenses for 2016 as of the date of publication of this final rule.

    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 troll fishery occurs in the WCPFC Convention Area outside the Area of Overlap (i.e., west of 150° W.), while some fishing has occurred in the Area of Overlap. As described above, the well volume capacity on the IATTC Regional Vessel Register for 2016 is nearly at the U.S. limit with 15 large purse seine vessels. There are currently 27 large purse seine vessels that are authorized by NMFS to be used for fishing on the high seas in the WCPFC Convention Area that are not on the IATTC Regional Vessel Register and these vessels will not be able to fish full time in the EPO for 2016. In addition, although U.S. longline vessels have not fished in the Area of Overlap over the past 10 years, this fleet also primarily fishes in the WCPO. This rule applies to vessels of all gear types.

    Comment 2: IATTC decisions governing the IATTC Regional Vessel Registry and Agreement on the International Dolphin Conservation Program (AIDCP) should not apply in the Area of Overlap, including vessel assessment fees, observer coverage, and authorization for the active status of purse seine vessels. NMFS is proposing that vessels fishing in the Overlap Area pay IATTC fees, follow some IATTC rules, but also abide by all WCPFC rules.

    Response: The decisions of the AIDCP must continue to apply regardless of the way IATTC Recommendation C-12-11 is implemented through this rulemaking. As explained in the preamble of the proposed rule, the IATTC Regional Vessel Register regulations must continue to apply to U.S. vessels in the Area of Overlap so that the United States can continue to fulfill its obligations under the AIDCP in that area. The decisions of the IATTC cannot undo the decisions of the AIDCP without consensus from the AIDCP because these organizations are established under separate treaties. The IATTC Regional Vessel Register is used as a mechanism to implement AIDCP provisions, including vessel assessment fees, observer coverage, and authorization for the active status of purse seine vessels. Therefore, the IATTC Regional Vessel Register requirements, including the requirement to pay vessel assessment fees required under the AIDCP will continue to apply in the Area of Overlap.

    Comment 3: This proposed rule runs counter to its stated intent to simplify regulations in a way consistent with one Commission or the other, nor is it reflective of current status of the fishery. It 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. U.S. vessels fishing in the EPO should follow IATTC regulations exclusively in the Area of Overlap and not those of the WCPFC.

    Response: NMFS disagrees that this rule would not simplify the regulations to be followed in the Area of Overlap. As described in the Classification section of the proposed rule, the rule is expected to simplify regulations because, aside from the IATTC Regional Vessel Register requirements, affected vessels will only be required to follow the measures of one organization (i.e., the WCPFC) rather than both organizations (i.e., the WCPFC and the IATTC) in the Area of Overlap. For example, in 2015 purse seine vessel owners and operators needed to comply with closures applicable in the Area of Overlap for both the IATTC and WCPFC. The IATTC implementing regulations at § 300.25(f) require vessel owners and operators to select one of two options for 62-day closures in the IATTC Convention Area. In addition, purse seine vessel owners and operators needed to comply with WCPFC regulations at § 300.223(a) that established a limit of 1,828 purse seine fishing days in the WCPFC Convention Area in the areas of high seas and U.S. EEZ between 20° N. latitude and 20° S. latitude (an area known as the ELAPS), which includes some of the Area of Overlap. The limit was reached and the applicable area was closed to purse seine fishing from June 15, 2015, through December 31, 2015 (80 FR 32313). Under this rule, vessel owners and operators would not need to comply with both sets of purse seine closures in the Area of Overlap, and would only need to comply with the WCPFC limit on fishing days in the ELAPS.

    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.

    Changes From the Proposed Rule

    There are no changes in the regulatory text between the proposed and final rule.

    Classification

    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.

    List of Subjects in 50 CFR Part 300

    Fish, Fisheries, Fishing, Fishing vessels, International organizations, Marine resources, Reporting and recordkeeping requirements, Treaties.

    Dated: April 21, 2016. Samuel D. Rauch III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

    For the reasons set out in the preamble, 50 CFR part 300 is amended as follows:

    PART 300—INTERNATIONAL FISHERIES REGULATIONS 1. The authority citation for part 300, subpart C, continues to read as follows: Authority:

    16 U.S.C. 951 et seq.

    2. In § 300.21, revise the definition for “Convention Area” to read as follows:
    § 300.21 Definitions.

    Convention Area or IATTC Convention Area means:

    (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.

    [FR Doc. 2016-09679 Filed 4-25-16; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 648 [Docket No. 151110999-6315-02] RIN 0648-BF53 Fisheries of the Northeastern United States; Atlantic Mackerel, Squid, and Butterfish Fisheries; Specifications and Management Measures AGENCY:

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

    ACTION:

    Final rule.

    SUMMARY:

    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.

    DATES:

    Effective May 26, 2016, except for the amendment to § 648.11(n)(1), which is effective April 26, 2016.

    ADDRESSES:

    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: http://www.greateratlantic.fisheries.noaa.gov.

    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 [email protected], or fax to (202) 395-7285.

    FOR FURTHER INFORMATION CONTACT:

    Carly Bari, Fishery Policy Analyst, (978) 281-9224.

    SUPPLEMENTARY INFORMATION: Background

    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 Illex squid for 3 years in 2015 (2015-2017) (80 FR 14870, March 20, 2015) and, therefore, new specifications for these species are not included in this final rule.

    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 commercial and recreational annual catch totals (ACT) for mackerel, the butterfish mortality cap in the longfin squid fishery, and initial optimum yield (IOY) for both squid species. Details concerning the Council's development of the measures were presented in the preamble of the proposed rule and are not repeated here.

    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.

    Final 2016-2018 Specifications for Atlantic Mackerel Table 1—2016-2018 Specifications in Metric Tons (mt) for Atlantic Mackerel Overfishing limit
  • (OFL)
  • Unknown
    ABC 19,898 ACL 11,009 Commercial ACT 9,294 Recreational ACT/Recreational Harvest Limit (RHL) 614 DAH/DAP 9,177 JVP 0 TALFF 0

    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.

    2016-2018 Final River Herring and Shad Catch Cap in the Atlantic Mackerel Fishery

    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.

    Butterfish Mesh Requirement Adjustment and Clarification

    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.

    Suspension of the Longfin Squid Pre-Trip Notification System Requirement

    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 improve the selection process of vessels being observed for purposes of monitoring the longfin squid fishery's butterfish cap. However, the new Standardized Bycatch Reporting Methodology (SBRM) requires observers to adhere to a detailed and rigorous selection procedure that takes into account a variety of criteria (for example region fished and gear used) to select vessels for observer coverage, and that conflicts with the use of the PTNS for assigning observers. This action will resolve the resulting logistical problems by relying on observer coverage through the new SBRM, and eliminating the PTNS requirement.

    Comments and Responses

    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.

    Comment 1: GSSA, Seafreeze, and two individuals commented in support of removing the longfin squid PTNS requirement. GSSA, Seafreeze, and one individual commented in support of the increased butterfish incidental possession limit to 5,000 lb (2.27 mt) using less than 3-inch (7.62-cm) mesh. GSSA and Seafreeze also commented in support of allowing 5-inch (12.7-cm) mesh net strengtheners to avoid breaking nets during large hauls.

    Response: NMFS will be implementing these management measures as proposed.

    Comment 2: GSSA commented in opposition to the river herring and shad catch cap of 82 mt while the Herring Alliance commented in support of the catch cap.

    Response: There was no rationale provided for the opposition to the proposed river herring and shad catch cap of 82 mt. NMFS used the best scientific information available and is approving the river herring and shad catch cap that is consistent with the FMP and recommendations of the Council.

    Comment 3: The Herring Alliance commented in support of the Atlantic mackerel DAH of 9,177 mt.

    Response: NMFS used the best scientific information available and is approving the specifications that are consistent with the FMP and recommendations of the Council.

    Comment 4: One individual suggested that the daily vessel monitoring system (VMS) reporting requirement for longfin squid vessels be removed or reduced. The Herring Alliance suggested that an amendment be initiated to develop a long-term control rule for Atlantic mackerel that will be consistent with the Council's policies for forage fish. The Herring Alliance also suggested that all four river herring and shad species be added to the Atlantic Mackerel, Squid, and Butterfish FMP as stocks in the fishery in October 2016.

    Response: These issues are outside the scope of this action, but may be addressed by the Council in the future.

    Changes From the Proposed Rule

    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.

    Classification

    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 ADDRESSES).

    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 ADDRESSES) and by email to [email protected], or fax to (202) 395-7285.

    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: http://www.cio.noaa.gov/services_programs/prasubs.html.

    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 ADDRESSES).

    A Summary of the Significant Issues Raised by the Public Comments in Response to the IRFA, a Summary of the Assessment of the Agency of Such Issues, and a Statement of Any Changes Made in the Final Rule as a Result of Such Comments

    None of the public comments raised issues related to the IRFA or the economic impact of the rule on affected entities.

    Description and Estimate of Number of Small Entities to Which the Rule Will Apply

    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.

    Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements

    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.

    Description of the Steps the Agency Has Taken To Minimize the Significant Economic Impacts on Small Entities Consistent With the Stated Objectives of Applicable Statutes

    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.

    List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Recordkeeping and reporting requirements.

    Dated: April 21, 2016. Samuel D. Rauch III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

    For the reasons set out in the preamble, 50 CFR part 648 is amended as follows:

    PART 648—FISHERIES OF THE NORTHEASTERN UNITED STATES 1. The authority citation for part 648 continues to read as follows: Authority:

    16 U.S.C. 1801 et seq.

    2. In § 648.10, paragraph (o) is revised to read as follows:
    § 648.10 VMS and DAS requirements for vessel owners/operators.

    (o) Longfin squid/butterfish VMS notification requirement. A vessel issued a longfin squid/butterfish moratorium permit intending to declare into the longfin squid fishery must notify NMFS by declaring a longfin squid trip prior to leaving port at the start of each trip in order to harvest, possess, or land more than 2,500 lb (1.13 mt) of longfin squid on that trip.

    3. In § 648.11, paragraph (n)(1) is revised to read as follows:
    § 648.11 At-sea sea sampler/observer coverage.

    (n) Atlantic mackerel, squid, and butterfish observer coverage—(1) Pre-trip notification. (i) A vessel issued a limited access Atlantic mackerel permit, as specified at § 648.4(a)(5)(iii), must, for the purposes of observer deployment, have a representative provide notice to NMFS of the vessel name, vessel permit number, contact name for coordination of observer deployment, telephone number or email address for contact; and the date, time, port of departure, gear type, and approximate trip duration, at least 48 hr, but no more than 10 days, prior to beginning any fishing trip, unless it complies with the possession restrictions in paragraph (n)(1)(iii) of this section.

    (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.

    4. In § 648.14, paragraphs (g)(2)(ii)(E), (g)(2)(iii)(A) and (C), and (g)(2)(iv) are revised to read as follows:
    § 648.14 Prohibitions.

    (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, Illex, or butterfish specified in § 648.23(a); or that are modified, obstructed, or constricted, if subject to the minimum mesh requirements, unless the nets or netting are stowed and not available for immediate use as defined in § 648.2 or the vessel is fishing under an exemption specified in § 648.23(a)(5).

    (C) Enter or fish in the mackerel, squid, and butterfish bottom trawling restricted areas, as described in § 648.23(a)(6).

    (iv) Observer requirements for longfin squid fishery. Fail to comply with any of the provisions specified in § 648.11.

    5. In § 648.23, paragraph (a) is revised to read as follows:
    § 648.23 Mackerel, squid, and butterfish gear restrictions.

    (a) Mesh restrictions and exemptions. Vessels subject to the mesh restrictions in this paragraph (a) must render any net, or any piece of net, with a mesh size smaller than that specified in paragraphs (a)(1), (2), and (3) of this section not available for immediate use as defined in § 648.2.

    (1) Butterfish fishery. Owners or operators of otter trawl vessels possessing more than 5,000 lb (2.27 mt) of butterfish harvested in or from the EEZ may only fish with nets having a minimum codend mesh of 3 inches (7.62 cm) diamond or square mesh, as measured by methods specified in § 648.80(f), applied throughout the codend for at least 100 continuous meshes forward of the terminus of the net, or for codends with less than 100 meshes, the minimum mesh size codend shall be a minimum of one-third of the net, measured from the terminus of the codend to the headrope.

    (2) Longfin squid fishery. (i) Owners or operators of otter trawl vessels possessing longfin squid harvested in or from the EEZ may only fish with nets having a minimum mesh size of 21/8 inches (54 mm) during Trimesters I (Jan-Apr) and III (Sept-Dec), or 17/8 inches (48 mm) during Trimester II (May-Aug), diamond or square mesh, as measured by methods specified in § 648.80(f), applied throughout the codend for at least 150 continuous meshes forward of the terminus of the net, or, for codends with less than 150 meshes, the minimum mesh size codend shall be a minimum of one-third of the net measured from the terminus of the codend to the headrope.

    (ii) Jigging exemption. During closures of the longfin squid fishery resulting from the butterfish mortality cap, described in § 648.24(c)(3), vessels fishing for longfin squid using jigging gear are exempt from the closure possession limit specified in § 648.26(b), provided that all otter trawl gear is stowed and not available for immediate use as defined in § 648.2.

    (3) Net obstruction or constriction. Owners or operators of otter trawl vessels fishing for and/or possessing butterfish or longfin squid shall not use any device, gear, or material, including, but not limited to, nets, net strengtheners, ropes, lines, or chafing gear, on the top of the regulated portion of a trawl net except any of the following materials may be used as specified:

    (i) Splitting straps, and/or bull ropes or wire around the entire circumference of the codend provided these materials do not obstruct or constrict the top or the trawl net while it is being towed;

    (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) Top of the regulated portion of the net means the 50 percent of the entire regulated portion of the net that would not be in contact with the ocean bottom if, during a tow, the regulated portion of the net were laid flat on the ocean floor.

    (5) Illex fishery. Seaward of the following coordinates, connected in the order listed by straight lines except otherwise noted, otter trawl vessels possessing longfin squid harvested in or from the EEZ and fishing for Illex during the months of June, July, August in Trimester II, and September in Trimester III are exempt from the longfin squid gear requirements specified in paragraph (a)(2) of this section, provided that landward of the specified coordinates they do not have available for immediate use, as defined in § 648.2, any net, or any piece of net, with a mesh size less than 17/8 inches (48 mm) diamond mesh in Trimester II, and 21/8 inches (54 mm) diamond mesh in Trimester III, or any piece of net, with mesh that is rigged in a manner that is prohibited by paragraphs (a)(2) and (a)(3)(ii) of this section.

    Point N. lat. W. long. M0 43°58.0′  [1] M1 43°58.0′ 67°22.0′ M2 43°50.0′ 68°35.0′ M3 43°30.0′ 69°40.0′ M4 43°20.0′ 70°00.0′ M5 42°45.0′ 70°10.0′ M6 42°13.0′ 69°55.0′ M7 41°00.0′ 69°00.0′ M8 41°45.0′ 68°15.0′ M9 42°10.0′ [2] 67°10.0′ M10 41°18.6′ [2] 66°24.8′ M11 40°55.5′ 66°38.0′ M12 40°45.5′ 68°00.0′ M13 40°37.0′ 68°00.0′ M14 40°30.0′ 69°00.0′ M15 40°22.7′ 69°00.0′ M16 40°18.7′ 69°40.0′ M17 40°21.0′ 71°03.0′ M18 39°41.0′ 72°32.0′ M19 38°47.0′ 73°11.0′ M20 38°04.0′ 74°06.0′ M21 37°08.0′ 74°46.0′ M22 36°00.0′ 74°52.0′ M23 35°45.0′ 74°53.0′ M24 35°28.0′ 74°52.0′ M25 35°28.0′  [3] [1] The intersection of 43°58.0′ N. latitude and the US-Canada Maritime Boundary. [2] Points M9 and M10 are intended to fall along and are connected by the US-Canada Maritime Boundary. [3] The intersection of 35°28.0′ N. latitude and the outward limit of the U.S. EEZ.

    (6) Mackerel, squid, and butterfish bottom trawling restricted areas—(i) Oceanographer Canyon. No permitted mackerel, squid, or butterfish vessel may fish with bottom trawl gear in the Oceanographer Canyon or be in the Oceanographer Canyon unless transiting. Vessels may transit this area provided the bottom trawl gear is stowed and not available for immediate use as defined in § 648.2. Oceanographer Canyon is defined by straight lines connecting the following points in the order stated (copies of a chart depicting this area are available from the Regional Administrator upon request):

    Oceanographer Canyon Point N. lat. W. long. OC1 40°10.0′ 68°12.0′ OC2 40°24.0′ 68°09.0′ OC3 40°24.0′ 68°08.0′ OC4 40°10.0′ 67°59.0′ OC1 40°10.0′ 68°12.0′

    (ii) Lydonia Canyon. No permitted mackerel, squid, or butterfish vessel may fish with bottom trawl gear in the Lydonia Canyon or be in the Lydonia Canyon unless transiting. Vessels may transit this area provided the bottom trawl gear is stowed and not available for immediate use as defined in § 648.2. Lydonia Canyon is defined by straight lines connecting the following points in the order stated (copies of a chart depicting this area are available from the Regional Administrator upon request):

    Lydonia Canyon Point N. lat. W. long. LC1 40°16.0′ 67°34.0′ LC2 40°16.0′ 67°42.0′ LC3 40°20.0′ 67°43.0′ LC4 40°27.0′ 67°40.0′ LC5 40°27.0′ 67°38.0′ LC1 40°16.0′ 67°34.0′
    6. In § 648.26, paragraphs (b)(2) and (d)(2) are revised to read as follows:
    § 648.26 Mackerel, squid, and butterfish possession restrictions.

    (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 Illex squid fishing trip (i.e., possess over 10,000 lb (4.54 mt) of Illex) and is seaward of the coordinates specified at § 648.23(a)(5), may possess up to 15,000 lb (6.80 mt) of longfin squid. Once landward of the coordinates specified at § 648.23(a)(5), such vessels must stow all fishing gear, and render it not available for immediate use as defined in § 648.2, in order to possess more than 2,500 lb (1.13 mt) of longfin squid per trip.

    (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.

    7. In § 648.80, paragraphs (a)(4)(iv)(B)(2) and (g)(5)(i) are revised to read as follows:
    § 648.80 NE Multispecies regulated mesh areas and restrictions on gear and methods of fishing.

    (a) * * *

    (4) * * *

    (iv) * * *

    (B) * * *

    (2) Net size requirements. Vessels may fish any combination of roundfish and flatfish gillnets, up to 50 nets. Such vessels, may stow additional nets not to exceed 150, counting the deployed net. Such vessels may stow additional nets in accordance with the definition of not available for immediate use as defined in § 648.2 not to exceed 150 nets, counting the deployed net.

    (g) * * *

    (5) * * *

    (i) Nets of mesh size less than 2.5 inches (6.4 cm). A vessel lawfully fishing for small-mesh multispecies in the GOM/GB, SNE, or MA Regulated Mesh Areas, as defined in paragraphs (a), (b), and (c) of this section, with nets of mesh size smaller than 2.5 inches (6.4 cm), as measured by methods specified in paragraph (f) of this section, may use net strengtheners (covers, as described at § 648.23(a)(3)), provided that the net strengthener for nets of mesh size smaller than 2.5 inches (6.4 cm) complies with the provisions specified under § 648.23(a)(3)(iii).

    8. In § 648.90, paragraphs (a)(5)(i)(D)(2) and (3) are revised to read as follows:
    § 648.90 NE Multispecies assessment, framework procedures and specifications, and flexible area action system.

    (a) * * *

    (5) * * *

    (i) * * *

    (D) * * *

    (2) Atlantic halibut. If NMFS determines the overall ACL for Atlantic halibut is exceeded, as described in this paragraph (a)(5)(i)(D)(2), by any amount greater than the management uncertainty buffer, the applicable AM areas shall be implemented and any vessel issued a NE multispecies permit or a limited access monkfish permit and fishing under the monkfish Category C or D permit provisions, may not fish for, possess, or land Atlantic halibut for the fishing year in which the AM is implemented, as specified in paragraph (a)(5)(i)(D) of this section. If the overall ACL is exceeded by more than 20 percent, the applicable AM area(s) for the stock shall be implemented, as specified in paragraph (a)(5)(i)(D) of this section, and the Council shall revisit the AM in a future action. The AM areas defined below are bounded by the following coordinates, connected in the order listed by rhumb lines, unless otherwise noted. Any vessel issued a limited access NE multispecies permit and fishing with trawl gear in the Atlantic Halibut Trawl Gear AM Area may only use a haddock separator trawl, as specified in § 648.85(a)(3)(iii)(A); a Ruhle trawl, as specified in § 648.85(b)(6)(iv)(J)(3); a rope separator trawl, as specified in § 648.84(e); or any other gear approved consistent with the process defined in § 648.85(b)(6). When in effect, a limited access NE multispecies permitted vessel with gillnet or longline gear may not fish or be in the Atlantic Halibut Fixed Gear AM Areas, unless transiting with its gear stowed and not available for immediate use as defined in § 648.2, or such gear was approved consistent with the process defined in § 648.85(b)(6). If a sub-ACL for Atlantic halibut is allocated to another fishery, consistent with the process specified at § 648.90(a)(4), and there are AMs for that fishery, the groundfish fishery AM shall only be implemented if the sub-ACL allocated to the groundfish fishery is exceeded (i.e., the sector and common pool catch for a particular stock, including the common pool's share of any overage of the overall ACL caused by excessive catch by other sub-components of the fishery pursuant to § 648.90(a)(5), exceeds the common pool sub-ACL) and the overall ACL is also exceeded.

    Atlantic Halibut Trawl Gear AM Area Point N. latitude W. longitude 1 42°00′ 69°20′ 2 42°00′ 68°20′ 3 41°30′ 68°20′ 4 41°30′ 69°20′ Atlantic Halibut Fixed Gear AM Area 1 Point N. latitude W. longitude 1 42°30′ 70°20′ 2 42°30′ 70°15′ 3 42°20′ 70°15′ 4 42°20′ 70°20′ Atlantic Halibut Fixed Gear AM Area 2 Point N. latitude W. longitude 1 43°10′ 69°40′ 2 43°10′ 69°30′ 3 43°00′ 69°30′ 4 43°00′ 69°40′

    (3) Atlantic wolffish. If NMFS determines the overall ACL for Atlantic wolffish is exceeded, as described in this paragraph (a)(5)(i)(D)(3), by any amount greater than the management uncertainty buffer, the applicable AM areas shall be implemented, as specified in paragraph (a)(5)(i)(D) of this section. If the overall ACL is exceeded by more than 20 percent, the applicable AM area(s) for the stock shall be implemented, as specified in paragraph (a)(5)(i)(D) of this section, and the Council shall revisit the AM in a future action. The AM areas defined below are bounded by the following coordinates, connected in the order listed by rhumb lines, unless otherwise noted. Any vessel issued a limited access NE multispecies permit and fishing with trawl gear in the Atlantic Wolffish Trawl Gear AM Area may only use a haddock separator trawl, as specified in § 648.85(a)(3)(iii)(A); a Ruhle trawl, as specified in § 648.85(b)(6)(iv)(J)(3); a rope separator trawl, as specified in § 648.84(e); or any other gear approved consistent with the process defined in § 648.85(b)(6). When in effect, a limited access NE multispecies permitted vessel with gillnet or longline gear may not fish or be in the Atlantic Wolffish Fixed Gear AM Areas, unless transiting with its gear stowed and not available for immediate use as defined in § 648.2, or such gear was approved consistent with the process defined in § 648.85(b)(6). If a sub-ACL for Atlantic wolffish is allocated to another fishery, consistent with the process specified at § 648.90(a)(4), and AMs are developed for that fishery, the groundfish fishery AM shall only be implemented if the sub-ACL allocated to the groundfish fishery is exceeded (i.e., the sector and common pool catch for a particular stock, including the common pool's share of any overage of the overall ACL caused by excessive catch by other sub-components of the fishery pursuant to § 648.90(a)(5), exceeds the common pool sub-ACL) and the overall ACL is also exceeded.

    Atlantic Wolffish Trawl Gear AM Area Point N. latitude W. longitude 1 42°30′ 70°30′ 2 42°30′ 70°15′ 3 42°15′ 70°15′ 4 42°15′ 70°10′ 5 42°10′ 70°10′ 6 42°10′ 70°20′ 7 42°20′ 70°20′ 8 42°20′ 70°30′ Atlantic Wolffish Fixed Gear AM Area 1 Point N. latitude W. longitude 1 41°40′ 69°40′ 2 41°40′ 69°30′ 3 41°30′ 69°30′ 4 41°30′ 69°40′ Atlantic Wolffish Fixed Gear AM Area 2 Point N. latitude W. longitude 1 42°30′ 70°20′ 2 42°30′ 70°15′ 3 42°20′ 70°15′ 4 42°20′ 70°20′
    [FR Doc. 2016-09681 Filed 4-25-16; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Parts 679 and 680 [Docket No. 151020969-6335-02] RIN 0648-BF46 Fisheries of the Exclusive Economic Zone Off Alaska; Bering Sea and Aleutian Islands Crab Rationalization Program AGENCY:

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

    ACTION:

    Final rule.

    SUMMARY:

    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.

    DATES:

    Effective April 26, 2016.

    ADDRESSES:

    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 http://www.regulations.gov or from the NMFS Alaska Region Web site at http://alaskafisheries.noaa.gov.

    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 [email protected]; or by fax to 202-395-5806.

    FOR FURTHER INFORMATION CONTACT:

    Keeley Kent, 907-586-7228.

    SUPPLEMENTARY INFORMATION:

    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.

    Background

    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.

    WAG Fishery

    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 ADDRESSES) and the preamble of the proposed rule (81 FR 8886, February 23, 2016) for this action.

    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.

    Full Landing (Offload) Requirement

    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).

    Catch Monitoring

    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.

    Need for This Final Rule

    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.

    This Final Rule Action 1: Exempt the WAG Fishery From Full Offload Requirements

    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. Section 3.7.4 of the final RIR describes that this rule will not change the current CR Program landing and reporting requirements, or catch accounting system. All retained crab catch will continue to be weighed, reported, and debited from the appropriate IFQ account under which the crab was harvested, and from the IPQ account under which the catch was processed.

    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: Clarify Document Submission Requirements for Transfers of C Shares

    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: Removing Certain Crab Species From LLP Regulations

    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 C. bairdi crab, Eastern Aleutian Islands red king crab; scarlet or deep sea king crab; grooved Tanner crab; and triangle Tanner crab. These stocks were removed from the Crab FMP in 2008 through Amendment 24 and are no longer subject to Federal management (73 FR 33925, June 16, 2008). This final rule adds Aleutian Islands C. bairdi crab to the list of stocks that NMFS proposed to remove from the LLP regulations. This change is described briefly in this section and in detail in the Change from the Proposed Rule section.

    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 C. bairdi crab, Eastern Aleutian Islands red king crab, scarlet or deep sea king crab, grooved Tanner crab, and triangle Tanner crab. The State currently manages these fisheries under State regulations.

    Amendment 24 to the Crab FMP did not require implementing regulations. As a result, Aleutian Islands C. bairdi crab, Eastern Aleutian Islands red king crab, scarlet or deep sea king crab, grooved Tanner crab, and triangle Tanner crab were not removed from LLP regulations when Amendment 24 was implemented. In order to align LLP regulations with the Crab FMP and avoid confusion about regulatory requirements, this final rule modifies the LLP regulations at § 679.4(k)(1)(ii) to eliminate these species from the LLP regulations. This final rule does not change current management of these crab fisheries.

    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 C. opilio/C. bairdi crab;

    • 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 C. bairdi crab endorsement from the combined Aleutian Islands C. opilio and C. bairdi area/species endorsements for LLP licenses. Current LLP license records indicate there are 274 LLP licenses with the Aleutian Islands C. opilio and C. bairdi area/species endorsement. The endorsement will be modified so that it only includes Aleutian Islands C. opilio, and the 274 licenses will be reissued, reflecting the change.

    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 C. opilio and C. bairdi crab endorsement and the Eastern Aleutian Islands red king crab endorsement. NMFS will incur minor administrative costs to reissue LLP licenses to remove the Aleutian Islands C. bairdi crab and Eastern Aleutian Islands red king endorsement. This action will not change current management of the Aleutian Islands C. bairdi crab, Eastern Aleutian Islands red king crab, Bering Sea golden king crab, scarlet or deep sea king crab, grooved Tanner crab, and triangle Tanner crab fisheries.

    Comments and Responses

    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.

    Comment 1: All four commenters expressed support for Action 1 in this final rule, to create 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.

    Response: NMFS acknowledges these comments.

    Comment 2: One commenter requested that NMFS implement this final rule as soon as possible so that it is effective before the end of the current WAG fishing season on April 30, 2016.

    Response: NMFS acknowledges this comment. This final rule relieves a restriction on fishing activity in the WAG fishery and could increase operational efficiencies and revenues for participants in the WAG fishery. Therefore, for reasons discussed in the Classification section, the NMFS Assistant Administrator has waived the 30-day delay in effectiveness of this final rule to allow WAG participants to benefit from this exemption before the end of the 2015/2016 WAG fishing season. This will allow WAG participants to make partial offloads and then resume fishing on the day that this final rule is published in the Federal Register.

    Comment 3: The proposed revisions to § 679.4(k)(1)(ii)(A) do not appear to remove the LLP requirement for Aleutian Islands C. bairdi crab. Aleutian Islands C. bairdi crab was removed from the Crab FMP under Amendment 24. Therefore, the final rule should remove this stock from the LLP regulations along with the proposed stocks.

    Response: NMFS agrees. NMFS inadvertently omitted Aleutian Islands C. bairdi crab from the list of crab stocks to be removed from the LLP regulations in the proposed rule. As described in the Change from the Proposed Rule section, this final rule removes Aleutian Islands C. bairdi crab from the list of crab stocks to be removed from the LLP regulations as recommended by the commenter.

    Comment 4: The proposed rule incorrectly stated that observer or dockside sampling data are used to debit IFQ and IPQ accounts in the CR Program online catch accounting system. The RIR/IRFA correctly states that crab landings data are used to debit IFQ and IPQ accounts under the CR Program.

    Response: NMFS agrees. While the preamble to the proposed rule contained an incorrect statement regarding the type of data used to debit IFQ and IPQ accounts, the RIR/IRFA correctly stated that eLandings is used for catch accounting purposes to debit crab landings from IFQ and IPQ accounts. The incorrect statement in the preamble to the proposed rule did not change the issues involved in establishing this final rule to exempt the WAG fishery from full offload requirements. No changes are necessary to address this comment in the final rule.

    Comment 5: The proposed rule incorrectly states that ADF&G requires operators in the BSAI crab fisheries to complete a daily fishing log. NMFS regulations at § 680.5(a) and § 679.5(c)(1) require operators to complete the daily fishing log.

    Response: NMFS agrees that the requirement to complete a daily fishing log is a NMFS requirement, rather than an ADF&G requirement. The RIR/IRFA correctly stated that NMFS regulations at 680.5(a) and 679.5(c)(1) require operators to complete the daily fishing log. No changes are necessary to address the comment in this final rule.

    Comment 6: NMFS should consider expanding the exemption for the WAG fishery from the full offload delivery requirements to all CR Program fisheries. Participants in other CR Program fisheries have an interest in exploring the possibilities for partial offloads to supply live crab markets for other CR Program fisheries from other communities. Expanding the exemption could allow other participants to take advantage of the efficiency created by the exemption and the opportunity to access markets with higher prices for crab.

    Response: As noted in the proposed rule and the RIR/IRFA and the final RIR, during the Council's initial discussion of the need for this action, 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. Expanding the exemption to CR Program fisheries is outside the scope of this final rule.

    Comment 7: The commenter expressed support for the addition of approval criteria at § 680.41(i)(11) under Action 2 of the proposed rule to correct the previous error in the amendatory language of the final rule that implemented regulations to provide entities with the option to make Web-based transfers.

    Response: NMFS acknowledges this comment.

    Comment 8: The commenter noted ongoing concerns with the implementation of C share provisions under the CR Program, including the time lag between the Council final action on Amendment 31 to the Crab FMP (April 2008) and the publication of the final rule implementing Amendment 31 (March 26, 2015, 80 FR 15891).

    Response: NMFS acknowledges this comment but notes that Action 2 of this final rule only corrects a previous amendatory error. Action 2 of this final rule does not modify the existing C share provisions under the CR Program. Comments about the implementation of Amendment 31 to the Crab FMP are outside of the scope of this final rule.

    Comment 9: NMFS should carefully review its regulations prior to the implementation of provisions under Amendment 31 to the Crab FMP that can revoke C shares so that quota shareholders and prospective shareholders have clarity and certainty regarding their eligibility and QS holdings.

    Response: NMFS acknowledges this comment but notes that the implementation of Amendment 31 is outside the scope of this final rule.

    Change From the Proposed Rule

    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 C. bairdi crab from LLP regulations, in addition to removing the proposed four crab stocks: Eastern Aleutian Islands red king crab; scarlet or deep sea king crab; grooved Tanner crab; and triangle Tanner crab.

    NMFS has determined that this change to the final rule is necessary to remove the Aleutian Islands C. bairdi crab stock from the LLP regulations in addition to the four species included in the proposed rule because Aleutian Islands C. bairdi crab was also eliminated from the Crab FMP with Amendment 24. As described in the response to comment 3 in the Comments and Responses section, NMFS did not propose this regulatory change. This change corrects that error. This change from the proposed to final rule is necessary to ensure the regulations are consistent with the Crab FMP.

    Classification

    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.

    Administrative Procedure Act

    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 this final rule is effective on the day that it is published in the Federal Register.

    Small Entity Compliance Guide

    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: http://alaskafisheries.noaa.gov.

    Final Regulatory Flexibility Analysis (FRFA)

    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.

    Need for and Objectives of the Rule

    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).

    Summary of Significant Issues Raised During Public Comment

    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.

    Number and Description of Small Entities Regulated by This 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.

    Recordkeeping and Reporting Requirements

    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 and will not impact any public reporting burden. There was a collection-of-information requirement for the initial issuance of LLPs, OMB Control Number 0648-0334; however after initial issuance, LLPs do not expire.

    Description of Significant Alternatives to the Final Action That Minimize Adverse Impacts on Small Entities

    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 C. bairdi/C. opilio crab and/or the Eastern Aleutian Islands red king crab endorsement; however, this requires no action taken on the part of any small entities. Action 3 will not impact directly regulated entities because no entities are currently participating in these crab fisheries, and this rule will not preclude them from doing so under the appropriate State regulations.

    Collection-of-Information Requirements

    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.

    OMB Control Number 0648-0334

    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 C. bairdi/C. opilio crab and Eastern Aleutian Islands red king crab endorsement. NMFS does not expect that removal of these area/species endorsements will impact LLP license holders.

    OMB Control Number 0648-0514

    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 ADDRESSES), and by email to [email protected] or fax to 202-395-5806.

    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: http://www.cio.noaa.gov/services_programs/prasubs.html.

    List of Subjects 50 CFR Part 679

    Alaska, Fisheries, Reporting and recordkeeping requirements.

    50 CFR Part 680

    Alaska, Fisheries, Reporting and recordkeeping requirements.

    Dated: April 20, 2016. Samuel D. Rauch III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

    For the reasons set out in the preamble, NMFS amends 50 CFR part 679 and part 680 as follows:

    PART 679—FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA 1. The authority citation for 50 CFR part 679 continues to read as follows: Authority:

    16 U.S.C. 773 et seq.; 1801 et seq.; 3631 et seq.; Pub. L. 108-447; Pub. L. 111-281.

    2. In § 679.4, a. Remove paragraph (k)(1)(ii)(A); b. Redesignate paragraph (k)(1)(ii)(B) as new paragraph (k)(1)(ii)(A); c. Revise newly redesignated paragraph (k)(1)(ii)(A); d. Redesignate paragraph (k)(1)(ii)(C) as new paragraph (k)(1)(ii)(B) and paragraph (k)(1)(ii)(D)(1) as new paragraph (k)(1)(ii)(C); f. Revise newly redesignated paragraph (k)(1)(ii)(C); and g. Remove paragraph (k)(1)(ii)(D).

    The revisions read as follows:

    § 679.4 Permits.

    (k) * * *

    (1) * * *

    (ii) * * *

    (A) Aleutian Islands Area C. opilio.

    (C) Minor Species endorsement for Bering Sea golden king crab (Lithodes aequispinus).

    PART 680—SHELLFISH FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA 3. The authority citation for 50 CFR part 680 continues to read as follows: Authority:

    16 U.S.C. 1862; Pub. L. 109-241; Pub. L. 109-479.

    4. In § 680.7, revise paragraph (b)(3) to read as follows:
    § 680.7 Prohibitions.

    (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.

    5. In § 680.41, add paragraph (i)(11) to read as follows:
    § 680.41 Transfer of QS, PQS, IFQ and IPQ.

    (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.

    [FR Doc. 2016-09678 Filed 4-25-16; 8:45 am] BILLING CODE 3510-22-P
    81 80 Tuesday, April 26, 2016 Proposed Rules BUREAU OF CONSUMER FINANCIAL PROTECTION 12 CFR Part 1026 [Docket No. CFPB-2016-0016] RIN 3170-AA49 Amendments to the 2013 Mortgage Servicing Rules Under the Real Estate Settlement Procedures Act (Regulation X) and the Truth in Lending Act (Regulation Z) AGENCY:

    Bureau of Consumer Financial Protection.

    ACTION:

    Reopening of comment period with request for public comment.

    SUMMARY:

    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 Federal Register on December 15, 2014 (79 FR 74176). On December 15, 2014, the Bureau published for notice and comment proposed amendments to certain mortgage servicing provisions in Regulation X and Regulation Z. Among other things, the proposed rule: Addressed requiring servicers to provide modified periodic statements under Regulation Z to consumers who have filed for bankruptcy, subject to certain exceptions; included related proposed sample periodic statement forms; and indicated that the Bureau intended to conduct consumer testing of the proposed sample forms and would publish and seek comment on a report summarizing the methods and results of such testing prior to finalizing any sample forms. The original comment period to the proposed rule closed on March 16, 2015. The Bureau conducted consumer testing of sample periodic statement forms for consumers in bankruptcy after the close of the original comment period. The Bureau now reopens the comment period until May 26, 2016 to seek comment specifically on the report summarizing consumer testing of sample periodic statement forms for consumers in bankruptcy.

    DATES:

    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.

    ADDRESSES:

    You may submit comments, identified by Docket No. CFPB-2016-0016 or RIN 3170-AA49, by any of the following methods:

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

    Email: [email protected] Include Docket No. CFPB-2016-0016 or RIN 3170-AA49 in the subject line of the email.

    Mail: Monica Jackson, Office of the Executive Secretary, Consumer Financial Protection Bureau, 1700 G Street NW., Washington, DC 20552.

    Hand Delivery/Courier: Monica Jackson, Office of the Executive Secretary, Consumer Financial Protection Bureau, 1275 First Street NE., Washington, DC 20002. Instructions: All submissions should include the agency name and docket number or Regulatory Information Number (RIN) for this rulemaking. Because paper mail in the Washington, DC area and at the Bureau is subject to delay, commenters are encouraged to submit comments electronically. In general, all comments received will be posted without change to http://www.regulations.gov. In addition, comments will be available for public inspection and copying at 1275 First Street NE., Washington, DC 20002, on official business days between the hours of 10 a.m. and 5 p.m. Eastern Time. You can make an appointment to inspect the documents by telephoning (202) 435-7275.

    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.

    FOR FURTHER INFORMATION CONTACT:

    Dania L. Ayoubi or David H. Hixson, Counsels, or Laura A. Johnson, Senior Counsel; Office of Regulations, at 202-435-7700.

    SUPPLEMENTARY INFORMATION: I. Background

    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).1 Two of these rules were (1) the Mortgage Servicing Rules Under the Real Estate Settlement Procedures Act (Regulation X) (2013 RESPA Servicing Final Rule); 2 and (2) the Mortgage Servicing Rules Under the Truth in Lending Act (Regulation Z) (2013 TILA Servicing Final Rule).3 These two rules are referred to collectively as the 2013 Mortgage Servicing Final Rules.

    1 Specifically, on January 10, 2013, the Bureau issued Escrow Requirements Under the Truth in Lending Act (Regulation Z), 78 FR 4725 (Jan. 22, 2013) (2013 Escrows Final Rule), High-Cost Mortgage and Homeownership Counseling Amendments to the Truth in Lending Act (Regulation Z) and Homeownership Counseling Amendments to the Real Estate Settlement Procedures Act (Regulation X), 78 FR 6855 (Jan. 31, 2013) (2013 HOEPA Final Rule), and Ability to Repay and Qualified Mortgage Standards Under the Truth in Lending Act (Regulation Z), 78 FR 6407 (Jan. 30, 2013) (January 2013 ATR Final Rule). The Bureau concurrently issued a proposal to amend the January 2013 ATR Final Rule, which was finalized on May 29, 2013. See 78 FR 6621 (Jan. 30, 2013) (January 2013 ATR Proposal) and 78 FR 35429 (June 12, 2013) (May 2013 ATR Final Rule). On January 17, 2013, the Bureau issued the Real Estate Settlement Procedures Act (Regulation X) and Truth in Lending Act (Regulation Z) Mortgage Servicing Final Rules, 78 FR 10901 (Feb. 14, 2013) (Regulation Z) and 78 FR 10695 (Feb. 14, 2013) (Regulation X) (2013 Mortgage Servicing Final Rules). On January 18, 2013, the Bureau issued the Disclosure and Delivery Requirements for Copies of Appraisals and Other Written Valuations Under the Equal Credit Opportunity Act (Regulation B), 78 FR 7215 (Jan. 31, 2013) (2013 ECOA Valuations Final Rule) and, jointly with other agencies, issued Appraisals for Higher-Priced Mortgage Loans (Regulation Z), 78 FR 10367 (Feb. 13, 2013) (2013 Interagency Appraisals Final Rule). On January 20, 2013, the Bureau issued the Loan Originator Compensation Requirements under the Truth in Lending Act (Regulation Z), 78 FR 11279 (Feb. 15, 2013) (2013 Loan Originator Final Rule).

    2 78 FR 10695 (Feb. 14, 2013).

    3 78 FR 10901 (Feb. 14, 2013).

    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) 4 and (2) Amendments to the 2013 Mortgage Rules under the Equal Credit Opportunity Act (Regulation B), Real Estate Settlement Procedures Act (Regulation X), and the Truth in Lending Act (Regulation Z) (September 2013 Mortgage Final Rule).5 In October 2013, the Bureau issued clarified compliance requirements in relation to successors in interest, early intervention requirements, bankruptcy law, and the Fair Debt Collection Practices Act (FDCPA),6 through an Interim Final Rule (IFR) 7 and a contemporaneous compliance bulletin (October 2013 Servicing Bulletin).8 Among other things, the IFR provisionally exempted servicers from the periodic statement requirement for a mortgage loan while the consumer is a debtor in bankruptcy and indicated that the Bureau would continue to examine the issue and might reinstate the requirement to provide a consumer in bankruptcy with a periodic statement.9 In October 2014, the Bureau added an alternative definition of small servicer in the Amendments to the 2013 Mortgage Rules under the Truth in Lending Act (Regulation Z).10 The purpose of each of these updates was to address important questions raised by industry, consumer advocacy groups, and other stakeholders. The 2013 Mortgage Servicing Final Rules, as amended in 2013 and 2014, are referred to herein as the Mortgage Servicing Rules.

    4 78 FR 44685 (July 24, 2013).

    5 78 FR 60381 (Oct. 1, 2013).

    6 15 U.S.C. 1692 et seq.

    7 78 FR 62993 (Oct. 23, 2013).

    8 Consumer Fin. Prot. Bureau, CFPB Bulletin 2013-12, Implementation Guidance for Certain Mortgage Servicing Rules (Oct. 15, 2013), available at http://files.consumerfinance.gov/f/201310_cfpb_mortgage-servicing_bulletin.pdf.

    9 78 FR 62993, 63000-01 (Oct. 23, 2013). The Bureau received comments in response to the IFR that it took into account in developing the proposed rule and sample forms for consumers in bankruptcy.

    10 79 FR 65300, 65304 (Nov. 3, 2014).

    On December 15, 2014, the Bureau published for notice and comment a proposed rule amending Regulation X and Regulation Z.11 Among other things, the proposed amendments to § 1026.41 of Regulation Z would require servicers to provide modified periodic statements to consumers who have filed for bankruptcy, subject to certain exceptions, 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.12 The Bureau also proposed related sample periodic statement forms,13 and indicated that it would conduct consumer testing of the proposed sample forms. As the Bureau explained in the proposed rule, “[p]rior to finalizing any such sample forms, the Bureau will publish and seek comment on a report summarizing the methods and results of the consumer testing.” 14

    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.15 In addition, the Bureau has conducted ex parte outreach to servicers to gain insight into their mortgage processing systems and capabilities to implement proposed changes to the servicing of loans in bankruptcy.16 After the close of the comment period, as discussed in more detail below, the Bureau conducted consumer testing of sample periodic statement forms that servicers could use for consumers in bankruptcy to comply with the related proposed amendments to § 1026.41.

    11 79 FR 74176 (Dec. 15, 2014).

    12 The discussion of the relevant portions of the proposed rule pertaining to the bankruptcy periodic statements are available at 79 FR 74176, 74256-66 (Dec. 15, 2014).

    13 79 FR 74176, 74267 and 74300-02 (Dec. 15, 2014).

    14 79 FR 74175, 74266 (Dec. 15, 2014).

    15See Consumer Fin. Prot. Bureau, CFPB Bulletin 11-3, CFPB Policy on Ex Parte Presentations in Rulemaking Proceedings (Aug. 16, 2011), available at http://files.consumerfinance.gov/f/2011/08/Bulletin_20110819_ExPartePresentationsRulemakingProceedings.pdf. Materials pertaining to these presentations are filed in the record and are publicly available at http://www.regulations.gov.

    16 Summaries of the Bureau's outreach are filed in the record and are publicly available at http://www.regulations.gov.

    II. Discussion and Request for Comment

    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,17 the Bureau and FMG worked closely to develop and test the Bureau's proposed sample modified periodic statement forms and various revisions thereto. Between May 2015 and August 2015, FMG conducted three rounds of one-on-one cognitive interviews regarding the forms with a total of 51 participants in Arlington, Virginia, Fort Lauderdale, Florida, and Chicago, Illinois. Efforts were made to recruit a significant number of participants who had filed for bankruptcy, who had a mortgage (preferably when they filed for bankruptcy), and who had trouble making mortgage payments in the last two years.

    17 Fors Marsh Group, Testing of Bankruptcy Periodic Statement Forms for Mortgage Servicing (Feb. 2016), available at http://www.consumerfinance.gov/reports (report on consumer testing submitted to the CFPB).

    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 submissions accordingly to the report, its findings, and conclusions.

    Dated : April 21 , 2016. Richard Cordray, Director, Bureau of Consumer Financial Protection.
    [FR Doc. 2016-09695 Filed 4-25-16; 8:45 am] BILLING CODE 4810-AM-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket Number USCG-2016-0131] RIN 1625-AA00 Safety Zone, Shallowbag Bay; Manteo, NC AGENCY:

    Coast Guard, DHS.

    ACTION:

    Notice of proposed rulemaking.

    SUMMARY:

    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.

    DATES:

    Comments and related material must be received by the Coast Guard on or before May 11, 2016.

    ADDRESSES:

    You may submit comments identified by docket number USCG-2016-0131 using the Federal eRulemaking Portal at http://www.regulations.gov. See the “Public Participation and Request for Comments” portion of the SUPPLEMENTARY INFORMATION section for further instructions on submitting comments.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions about this proposed rulemaking, call or email LCDR Derek J. Burrill, Coast Guard Sector North Carolina, Coast Guard; telephone (910) 772-2230, email [email protected]

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

    On 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.

    III. Discussion of Proposed Rule

    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.

    IV. Regulatory Analyses

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

    A. Regulatory Planning and Review

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

    This regulatory action determination is based on the size, location, duration, and time-of-day of the safety zone. Vessel traffic would be able to safely transit around this safety zone which would impact a small designated area of 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.

    B. Impact on Small Entities

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

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

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

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

    C. Collection of Information

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

    D. Federalism and Indian Tribal Governments

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

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

    E. Unfunded Mandates Reform Act

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

    F. Environment

    We have analyzed this proposed rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This proposed rule involves: A safety zone lasting less than 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.

    G. Protest Activities

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

    V. Public Participation and Request for Comments

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

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

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

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

    List of Subjects in 33 CFR Part 165

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

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

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

    33 U.S.C. 1231; 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.

    2. Add temporary § 165.T05-0437 to read as follows:
    § 165.T05-0437 Safety Zone, Shallowbag Bay; Manteo, NC.

    (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.

    Dated: April 7, 2016. J.S. Dufresne, Captain, U.S. Coast Guard, Captain of the Port North Carolina.
    [FR Doc. 2016-09677 Filed 4-25-16; 8:45 am] BILLING CODE 9110-04-P
    LIBRARY OF CONGRESS Copyright Royalty Board 37 CFR Chapter III [Docket No. 15-CRB-0010-CA] Adjustment of Cable Statutory License Royalty Rates AGENCY:

    Copyright Royalty Board, Library of Congress.

    ACTION:

    Proposed rule.

    SUMMARY:

    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.

    DATES:

    Comments are due no later than May 17, 2016.

    ADDRESSES:

    Submit electronic comments via email to [email protected] or online at http://www.regulations.gov. Those who choose not to submit comments electronically should see How to Submit Comments in the SUPPLEMENTARY INFORMATION section below for physical addresses and further instructions. The proposed rule is also posted on the agency's Web site (www.loc.gov/crb).

    FOR FURTHER INFORMATION CONTACT:

    Kimberly Whittle, Attorney Advisor, by telephone at (202) 707-7658, or by email at [email protected]

    SUPPLEMENTARY INFORMATION: Background

    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. See 17 U.S.C. 111(d)(1)(B) and 37 CFR 256.2(c)-(d). Motion of the Participating Parties to Adopt Partial Settlement, Docket No. 15-CRB-0010-CA (2015-2019) (Motion). The Judges hereby publish proposed regulations reflecting the proposed settlement and request comments from interested parties as required by 17 U.S.C. 801(b)(7)(A).

    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 2015.1 Therefore, the Judges initiated this rate adjustment proceeding by notice published in the Federal Register in June 2015. See 17 U.S.C. 801(b)(2), 803(b)(1), 804(a) and (b); 80 FR 35403 (Jun. 19, 2015).

    1 The cable rates were last adjusted in 2005, at a time when the Copyright Office was transferring responsibility for royalty rate proceedings from Copyright Arbitration Royalty Panels (CARP) to the newly authorized Copyright Royalty Judges. Although the Judges commenced a rate proceeding relating to the 2010 rate adjustment, the Judges terminated it when passage of the Satellite Television Extension and Localism Act of 2010, Public Law 111-151, 124 Stat. 1027 (“2010 STELA”), rendered the proceeding unnecessary. See Order Granting Request to Terminate Proceeding, Docket No. 2010-1 CRB Cable Rate (July 13, 2010). At that time, although the act changed the relevant rates, neither the Register of Copyrights nor the Judges updated the statement of the prior rates in subsections (a) and (b) of section 256 of 37 CFR, the chapter of the Regulations applying to CARP. The STELA Reauthorization Act of 2014 did not change the cable royalty rates in § 111. See Public Law 113-200, 28 Stat. 2059 (Dec. 4, 2014).

    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”.2 The Judges accepted these petitions and commenced a Voluntary Negotiation Period (VNP).

    2 The Phase I Parties consist of Program Suppliers, Joint Sports Claimants, Public Television Claimants, Commercial Television Claimants, Music Claimants, Canadian Claimants Group, National Public Radio, and Devotional Claimants.

    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),3 had filed a “Petition . . . to Initiate Cable Royalty Rate Adjustment Proceedings” with a self-styled caption indicating a proceeding for cable rate adjustments “for Retransmission of Certain Sports Telecasts.” Given the seemingly conflicting positions of the JSC, the Judges rejected the settlement, without prejudice.

    3 Joint Sports Claimants are: The National Basketball Association, the National Collegiate Athletic Association, the National Football League, the National Hockey League, the Office of the Commissioner of Baseball, and the Women's National Basketball Association.

    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 4 in the event the Federal Communications Commission (FCC) changes its rule “with respect to . . . sports program exclusivity. . . .” The JSC base their November 23, 2015 petition on an FCC rule change, viz., repeal of the sports exclusivity rules, effective November 24, 2014.5 The Judges announce commencement of further proceedings on the issue raised by that petition in a separate notice in the Federal Register.

    4 Apart from the quinquennial proceedings required by § 804 of the Act.

    5 Petition of the Joint Sports Claimants to Initiate Cable Royalty Rate Adjustment Proceedings (Nov. 23, 2015). In its petition, JSC requests that the Judges “initiate proceedings to adjust the cable statutory license royalty rates `to assure that such rates are reasonable in light of' the repeal of the Sports Blackout Rules.” Petition at 1. In its Motion to Adopt Partial Settlement, the self-styled “Participating Parties,” which includes JSC, states that “[t]he Joint Sports Rule Petition requests a new Section 111 royalty rate pursuant to 17 U.S.C. 801(b)(2)(C) to account for the November 2014 elimination of the [FCC's] Sports Rule (a “Sports Rule Surcharge”). Motion at 1-2. According to the Motion, “[n]either the Judges nor their predecessors have previously conducted any proceeding under Section 801(b)(2)(C) to consider the adoption of a cable rate to account for changes in the FCC Sports Rule,” although Section 801(b)(2)(C) has been invoked twice since its enactment with respect to the syndicated exclusivity provision of the section. Motion at 2, n.2.

    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 existing cable royalty rates (the base rates, 3.75 percent rate and the Syndicated Exclusivity Surcharge) and existing gross receipts limitations during the years 2015-19. It simply does not address the issue of whether the Judges should make any changes in cable rates pursuant to 17 U.S.C. 801(b)(2)(B) & (C) to account for changes in FCC cable rules.

    Motion at 5-6 (emphasis original).
    Statutory Timing of Adoption of Rates and Terms

    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.

    Proposed Adjustments to Rates and Terms

    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.

    How To Submit Comments

    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.

    Email: [email protected]; or

    Online: http://www.regulations.gov; or

    U.S. mail: Copyright Royalty Board, P.O. Box 70977, Washington, DC 20024-0977; or

    Overnight service (only USPS Express Mail is acceptable): Copyright Royalty Board, P.O. Box 70977, Washington, DC 20024-0977; or

    Commercial courier: Address package to: Copyright Royalty Board, Library of Congress, James Madison Memorial Building, LM-403, 101 Independence Avenue SE., Washington, DC 20559-6000. Deliver to: Congressional Courier Acceptance Site, 2nd Street NE., and D Street NE., Washington, DC; or

    Hand delivery: Library of Congress, James Madison Memorial Building, LM-401, 101 Independence Avenue SE., Washington, DC 20559-6000.

    List of Subjects in 37 CFR Part 387

    Copyright, Cable Television, Royalties.

    Proposed Regulations

    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.

    PART 387—ADJUSTMENT OF ROYALTY FEE FOR CABLE COMPULSORY LICENSE Sec. 387.1 General 387.2 Royalty fee for compulsory license for secondary transmission by cable systems. Authority:

    17 U.S.C. 801(b)(2), 803(b)(6).

    § 387.1 General.

    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.

    § 387.2 Royalty fee for compulsory license for secondary transmission by cable systems.

    (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 located outside the 35-mile specified zone of a commercial VHF station that places a predicted Grade B contour, in whole or in part, over the cable system, and that is not significantly viewed or otherwise exempt from the FCC's syndicated exclusivity rules in effect on June 24, 1981, for each distant signal equivalent or fraction thereof represented by the carriage of such commercial VHF station, the royalty rate shall be, in addition to the amount specified in paragraph (a) of this section,

    (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).

    Dated: April 20, 2016. Suzanne M. Barnett, Chief Copyright Royalty Judge.
    [FR Doc. 2016-09626 Filed 4-25-16; 8:45 am] BILLING CODE 1410-72-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R08-OAR-2013-0561, FRL-9945-57-Region 8] Promulgation of State Implementation Plan Revisions; Infrastructure Requirements for the 2008 Lead, 2008 Ozone, 2010 NO2, 2010 SO2, and 2012 PM2.5 National Ambient Air Quality Standards; Utah AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    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 (NO2) on January 22, 2010, sulfur dioxide (SO2) on June 2, 2010 and fine particulate matter (PM2.5) on December 14, 2012. The EPA is also proposing to approve SIP revisions the State submitted regarding state boards. Section 110(a) of the CAA requires that each state submit a SIP for the implementation, maintenance, and enforcement of each NAAQS promulgated by the EPA.

    DATES:

    Written comments must be received on or before May 26, 2016.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R08-OAR-2013-0561 at http://www.regulations.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. The EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (i.e., on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

    FOR FURTHER INFORMATION CONTACT:

    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, [email protected]

    SUPPLEMENTARY INFORMATION: I. General Information What should I consider as I prepare my comments for the EPA?

    1. Submitting Confidential Business Information (CBI). Do not submit CBI to the EPA through http://www.regulations.gov or email. Clearly mark the part or all of the information that you claim to be CBI. For CBI information on a disk or CD ROM that you mail to the EPA, mark the outside of the disk or CD ROM as CBI and then identify electronically within the disk or CD ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

    2. Tips for preparing your comments. When submitting comments, remember to:

    • Identify the rulemaking by docket number and other identifying information (subject heading, Federal Register volume, date, and page number);

    • 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.

    II. Background

    On March 12, 2008, the EPA promulgated a new NAAQS for ozone, revising the levels of the primary and secondary 8-hour ozone standards from 0.08 parts per million (ppm) to 0.075 ppm (73 FR 16436, March 27, 2008). Subsequently, on October 15, 2008, the EPA revised the level of the primary and secondary Pb NAAQS from 1.5 micrograms per cubic meter (μg/m3) to 0.15 μg/m3 (73 FR 66964, Nov. 12, 2008). On January 22, 2010, the EPA promulgated a new 1-hour primary NAAQS for NO2 at a level of 100 parts per billion (ppb) while retaining the annual standard of 53 ppb. The 2010 NO2 NAAQS is expressed as the three-year average of the 98th percentile of the annual distribution of daily maximum one-hour average concentrations. The secondary NO2 NAAQS remains unchanged at 53 ppb (75 FR 6474, Feb. 9, 2010). On June 2, 2010, the EPA promulgated a revised primary SO2 standard at 75 ppb, based on a three-year average of the annual 99th percentile of one-hour daily maximum concentrations (75 FR 35520, June 22, 2010). Finally, on December 14, 2012, the EPA promulgated a revised annual PM2.5 standard by lowering the level to 12.0 μg/m3 and retaining the 24-hour PM2.5 standard at a level of 35 μg/m3 (78 FR 3086, Jan. 15, 2013).

    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 PM2.5, ozone, Pb, NO2, and SO2 already meet those requirements. The EPA highlighted this statutory requirement in an October 2, 2007, guidance document entitled “Guidance on SIP Elements Required Under Sections 110(a)(1) and (2) for the 1997 8-hour Ozone and PM2.5 National Ambient Air Quality Standards” (2007 Memo). On September 25, 2009, the EPA issued an additional guidance document pertaining to the 2006 PM2.5 NAAQS entitled “Guidance on SIP Elements Required Under Sections 110(a)(1) and (2) for the 2006 24-Hour Fine Particle (PM2.5) National Ambient Air Quality Standards (NAAQS)” (2009 Memo), followed by the October 14, 2011, “Guidance on Infrastructure SIP Elements Required Under Sections 110(a)(1) and (2) for the 2008 Lead (Pb) National Ambient Air Quality Standards (NAAQS)” (2011 Memo). Most recently, the EPA issued “Guidance on Infrastructure State Implementation Plan (SIP) Elements under Clean Air Act Sections 110(a)(1) and (2)” on September 13, 2013 (2013 Memo).

    III. What is the scope of this rulemaking?

    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 NO2, 2010 SO2, and 2012 PM2.5 NAAQS. The requirement for states to make a SIP submission of this type arises out of CAA section 110(a)(1). Pursuant to section 110(a)(1), states must make SIP submissions “within three years (or such shorter period as the Administrator may prescribe) after the promulgation of a national primary ambient air quality standard (or any revision thereof),” and these SIP submissions are to provide for the “implementation, maintenance, and enforcement” of such NAAQS. The statute directly imposes on states the duty to make these SIP submissions, and the requirement to make the submissions is not conditioned upon the EPA taking any action other than promulgating a new or revised NAAQS. Section 110(a)(2) includes a list of specific elements that “[e]ach such plan” submission must address.

    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.1 The EPA therefore believes that while the timing requirement in section 110(a)(1) is unambiguous, some of the other statutory provisions are ambiguous. In particular, the EPA believes that the list of required elements for infrastructure SIP submissions provided in section 110(a)(2) contains ambiguities concerning what is required for inclusion in an infrastructure SIP submission.

    1 For example: Section 110(a)(2)(E)(i) provides that states must provide assurances that they have adequate legal authority under state and local law to carry out the SIP; section 110(a)(2)(C) provides that states must have a SIP-approved program to address certain sources as required by part C of title I of the CAA; and section 110(a)(2)(G) provides that states must have legal authority to address emergencies as well as contingency plans that are triggered in the event of such emergencies.

    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 PM2.5, 2008 Lead, 2008 Ozone, and 2010 NO2 National Ambient Air Quality Standards; South Dakota (79 FR 71040, Dec. 1, 2014) under “III. What is the Scope of this Rulemaking?”

    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”).

    IV. What infrastructure elements are required under sections 110(a)(1) and (2)?

    CAA section 110(a)(1) provides the procedural and timing requirements for SIP submissions after a new or revised NAAQS is promulgated. Section 110(a)(2) lists specific elements the SIP must contain or satisfy. These infrastructure elements include requirements such as modeling, monitoring, and emissions inventories, which are designed to assure attainment and maintenance of the NAAQS. The elements that are the subject of this action are listed below.

    • 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.

    V. How did Utah address the infrastructure elements of sections 110(a)(1) and (2)?

    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 NO2 NAAQS on January 31, 2013; 2010 SO2 NAAQS on June 2, 2013; and 2012 PM2.5 on December 4, 2015. Utah's infrastructure certifications demonstrate how the State, where applicable, has plans in place that meet the requirements of section 110 for the 2008 Pb, 2008 ozone, 2010 NO2, 2010 SO2 and 2012 PM2.5 NAAQS. These plans reference the Utah Code Annotated (UCA), Utah Administrative Code (UAC) rules, and the Utah SIP. These submittals are available within the electronic docket for today's proposed action at www.regulations.gov. The UCA, UAC, and the Utah SIP referenced in the submittals are publicly available at http://le.utah.gov/xcode/code.html, http://www.rules.utah.gov/publicat/code/r307/r307-110.htm and http://www.deq.utah.gov/Laws_Rules/daq/sip/index.htm. Air pollution control regulations and statutes that have been previously approved by the EPA and incorporated into the Utah SIP can be found at 40 CFR 52.2320.

    VI. Analysis of the State Submittals

    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 NO2, 2010 SO2, and 2012 PM2.5 infrastructure requirements cite SIP Section I (Legal Authority) which allows the adoption of emission standards and other limits necessary for attainment and maintenance of national ambient air quality standards. SIP Section I (Legal Authority), in combination with other specific control measures adopted by the Utah Air Quality Board (AQB) and multiple SIP-approved state air quality regulations within the UAC and cited in Utah's certifications, provide enforceable emission limitations and other control measures, means of techniques, schedules for compliance, and other related matters necessary to meet the requirements of the CAA section 110(a)(2)(A) for the 2008 Pb, 2008 ozone, 2010 NO2, 2010 SO2 and 2012 PM2.5 NAAQS, subject to the following clarifications.

    First, this infrastructure element does not require the submittal of regulations or emission limitations developed specifically for attaining the 2008 Pb, 2008 ozone, 2010 NO2, 2010 SO2 and 2012 PM2.5 NAAQS. Utah's certifications (contained within this docket) generally list provisions and enforceable control measures within its SIP which regulate pollutants through various programs. This includes its stationary source permit program which requires sources to demonstrate that emissions will not cause or contribute to a violation of any NAAQS. This suffices, in the case of Utah, to meet the requirements of section 110(a)(2)(A) for the 2008 Pb, 2008 ozone, 2010 NO2, 2010 SO2 and 2012 PM2.5 NAAQS.

    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 2 and the agency is addressing such state regulations separately (80 FR 33840, June 12, 2015).

    2 Steven Herman, Assistant Administrator for Enforcement and Compliance Assurance, and Robert Perciasepe, Assistant Administrator for Air and Radiation, Memorandum to the EPA Air Division Directors, “State Implementation Plans (SIPs): Policy Regarding Emissions During Malfunctions, Startup, and Shutdown.” (September 20, 1999).

    Therefore, the EPA is proposing to approve Utah's infrastructure SIP for the 2008 Pb, 2008 ozone, 2010 NO2, 2010 SO2 and 2012 PM2.5 NAAQS with respect to the general requirement in section 110(a)(2)(A) to include enforceable emission limitations and other control measures, means, or techniques to meet the applicable requirements of this element.

    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 (Ambient Air Monitoring Program), and provides a brief description of the purposes of the air monitoring program approved by the EPA in the early 1980s and most recently on June 25, 2003 (68 FR 37744). Utah's annual monitoring network plan (AMNP), is made available by the Department for public review and comment prior to submission to the EPA.

    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 NO2, 2010 SO2 and 2012 PM2.5 NAAQS. As explained elsewhere in this action, the EPA is not evaluating nonattainment related provisions, such as the nonattainment NSR program required by part D of the Act. The EPA is evaluating the State's PSD program as required by part C of the Act, and the State's minor NSR program as required by 110(a)(2)(C).

    Enforcement of Control Measures Requirement

    The State's submissions for the 2008 Pb, 2008 ozone, 2010 NO2, 2010 SO2, and 2012 PM2.5 infrastructure requirements cite SIP Section I (Legal Authority) which allows for enforcement of applicable laws, regulations, and standards and to seek injunctive relief, and also provides authority to prevent construction, modification, or operation of any stationary source at any location where emissions from such source will prevent the attainment or maintenance of a national standard or interfere with prevention of significant deterioration requirements.

    PSD Requirements

    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 (Prevention of Significant Deterioration) applies to all air pollutants regulated under the CAA.

    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. Utility Air Regulatory Group v. Environmental Protection Agency, 134 S.Ct. 2427. The Supreme Court held that the EPA may not treat GHGs as an air pollutant for purposes of determining whether a source is a major source required to obtain a PSD permit. The Court also held that the EPA could continue to require that PSD permits, otherwise required based on emissions of pollutants other than GHGs (anyway sources) contain limitations on GHG emissions based on the application of Best Available Control Technology (BACT).

    In accordance with the Supreme Court decision, on April 10, 2015, the U.S. Court of Appeals for the District of Columbia Circuit (the 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.3 With respect to Step 2 sources, the DC Circuit's amended judgment vacated the regulations at issue in the litigation, including 40 CFR 51.166(b)(48)(v), “to the extent they require a stationary source to obtain a PSD permit if greenhouse gases are the only pollutant (i) that the source emits or has the potential to emit above the applicable major source thresholds, or (ii) for which there is a significant emission increase from a modification.”

    3See 77 FR 41066 (July 12, 2012) rulemaking for definition of “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 PSD program rules in response to the court decisions.

    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 PM2.5. In particular, on May 16, 2008, the EPA promulgated the rule, “Implementation of the New Source Review Program for Particulate Matter Less Than 2.5 Micrometers (PM2.5)” (73 FR 28321). On October 20, 2010 the EPA promulgated the rule, “Prevention of Significant Deterioration (PSD) for Particulate Matter Less Than 2.5 Micrometers (PM2.5)—Increments, Significant Impact Levels (SILs) and Significant Monitoring Concentration (SMC)” (75 FR 64864). The EPA regards adoption of these PM2.5 rules as a necessary requirement when assessing a PSD program for the purposes of element (C).

    On January 4, 2013, the U.S. Court of Appeals, in Natural Resources Defense Council v. EPA, 706 F.3d 428 (D.C. Cir.), issued a judgment that remanded the EPA's 2007 and 2008 rules implementing the 1997 PM2.5 NAAQS. The court ordered the EPA to “repromulgate these rules pursuant to Subpart 4 consistent with this opinion.” Id. at 437. Subpart 4 of part D, Title 1 of the CAA establishes additional provisions for particulate matter nonattainment areas.

    The 2008 Implementation rule addressed by Natural Resources Defense Council, “Implementation of New Source Review (NSR) Program for Particulate Matter Less Than 2.5 Micrometers (PM2.5),” (73 FR 28321, May 16, 2008), promulgated NSR requirements for implementation of PM2.5 in nonattainment areas (nonattainment NSR) and attainment/unclassifiable areas (PSD). As the requirements of Subpart 4 only pertain to nonattainment areas, the EPA does not consider the portions of the 2008 Implementation rule that address requirements for PM2.5 attainment and unclassifiable areas to be affected by the court's opinion. Moreover, the EPA does not anticipate the need to revise any PSD requirements promulgated in the 2008 Implementation rule in order to comply with the court's decision. Accordingly, the EPA's proposed approval of Utah's infrastructure SIP as to elements C or J with respect to the PSD requirements promulgated by the 2008 Implementation rule does not conflict with the court's opinion.

    The court's decision with respect to the nonattainment NSR requirements promulgated by the 2008 Implementation rule also does not affect 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 PM2.5 is contained in the EPA's October 20, 2010 rule, “Prevention of Significant Deterioration (PSD) for Particulate Matter Less Than 2.5 Micrometers (PM2.5)—Increments, Significant Impact Levels (SILs) and Significant Monitoring Concentration (SMC)” (75 FR 64864). The EPA regards adoption of the PM2.5 increments as a necessary requirement when assessing a PSD program for the purposes of element (C).

    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 PM2.5. The EPA therefore is proposing to approve Utah's SIP for the 2008 ozone, 2008 Pb, 2010 NO2, 2010 SO2 and 2012 PM2.5 NAAQS with respect to the requirement in section 110(a)(2)(C) to include a permit program in the SIP as required by part C of the Act.

    Minor NSR

    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 PM2.5, lead, and ozone and its precursors.

    The EPA is proposing to approve Utah's infrastructure SIP for the 2008 Pb, 2008 ozone, 2010 NO2, 2010 SO2 and 2012 PM2.5 NAAQS with respect to the general requirement in section 110(a)(2)(C) to include a program in the SIP that regulates the enforcement, modification, and construction of any stationary source as necessary to assure that the NAAQS are achieved.

    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 measures required to be included in the applicable implementation plan for any other state under part C (element 3) to prevent significant deterioration of air quality or (element 4) to protect visibility. In this action, the EPA is only addressing element 3 of CAA section 110(a)(2)(D)(i)(II) for the 2008 ozone, 2008 Pb, 2010 SO2, 2010 NO2 and 2012 PM2.5 NAAQS. All other transport elements will be addressed in separate rulemaking actions.

    Evaluation of Interference With Measures To Prevent Significant Deterioration (PSD)

    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.4 As noted in the discussion for infrastructure element (C) earlier in this notice, the EPA is proposing to approve CAA section 110(a)(2) element (C) for Utah's infrastructure SIP for the 2008 Pb, 2008 ozone, 2010 NO2, 2010 SO2, and 2012 PM2.5 NAAQS with respect to PSD requirements. As discussed in detail in that section, Utah's SIP meets the current PSD-related requirements of section 110(a)(2)(C). For this reason, we are also proposing to approve Utah's infrastructure SIP as meeting the 110(a)(2)(D)(i)(II) element 3 (PSD) requirements for 2006 24-hour PM2.5 NAAQS.

    4 See 2013 Memo at 31.

    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.5 One way a state may satisfy element 3 with respect to these sources is by citing an air agency's EPA-approved nonattainment NSR provisions addressing any pollutants for which the state has designated nonattainment areas. Utah has a SIP-approved nonattainment NSR program which ensures regulation of major sources and major modifications in nonattainment areas, and therefore satisfies element 3 with regard to this requirement.6

    5 Id. at 31.

    6 See R307-403.

    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 PM2.5, 2008 Pb, 2008 Ozone, 2010 NO2, 2010 SO2 and 2012 PM2.5 NAAQS.

    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.7 This suffices to meet the notice requirement of section 126(a).

    7 See R307-110-9.

    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 NO2, 2010 SO2 and 2012 PM2.5 NAAQS. The EPA is also proposing to approve the Utah SIP as meeting the requirements of section 110(a)(2)(D)(ii) for the 1997 and 2006 PM2.5 NAAQS. Utah submitted an infrastructure certification generally addressing CAA section 110(a)(2)(D) for the 1997 PM2.5 NAAQS on December 3, 2007, and 2006 PM2.5 NAAQS on September 21, 2010.

    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.”

    a. Sub-Elements (i) and (iii): Adequate Personnel, Funding, and Legal Authority Under State Law To Carry Out Its SIP, and Related Issues

    The provisions contained in Chapter 2 of Title 19 of the Utah Code and Utah SIP Section I, Legal Authority provide UDAQ and the AQB adequate authority to carry out its SIP obligations with respect to the 2008 Pb, 2008 ozone, 2010 NO2, 2010 SO2 and 2012 PM2.5 NAAQS. The State receives sections 103 and 105 grant funds through its Performance Partnership Grant along with required state matching funds to provide funding necessary to carry out Utah's SIP requirements (Utah SIP Section V, Resources). Utah's Performance Partnership Agreement (available within the docket) with the EPA documents resources needed to provide resources to carry out agreed upon environmental program goals, measures, and commitments, including developing and implementing appropriate SIPs for all areas of the State. Annually, states update these grant commitments based on current SIP requirements, air quality planning, and applicable requirements related to the NAAQS. Utah satisfactorily met all commitments agreed to in the Air Planning Agreement for fiscal year 2015. Furthermore, R307-414, Permits: Fees for Approval Orders, requires the owner and operator of each new major source or major modification to pay a fee sufficient to cover reasonable costs of reviewing and acting upon the notice of intent and implementing and enforcing requirements placed on such source by any approval order issued. Collectively, these rules and commitments provide evidence that Utah DAQ has adequate personnel, funding, and legal authority to carry out the State's implementation plan and related issues.

    With respect to section 110(a)(2)(E)(iii), the regulations cited by Utah in their certifications (Utah SIP Section VI, Intergovernmental Cooperation) and contained within this docket also provide the necessary assurances that the State has responsibility for adequate implementation of SIP provisions by local governments. Therefore, we propose to approve Utah's SIP as meeting the requirements of section 110(a)(2)(E)(i) and (E)(iii) for the 2008 Pb, 2008 ozone, 2010 NO2, 2010 SO2 and 2012 PM2.5 NAAQS.

    b. Sub-Element (ii): State Boards

    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 PM2.5 NAAQS for CAA Section 110(a)(2)(E)(ii) because the Utah SIP did not contain provisions meeting requirements of CAA section 128. Under section 110(c)(1)(B), this disapproval started a two-year clock for the EPA to promulgate a federal implementation plan (FIP) to address the deficiency.

    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 (Authority), R307-104-2 (Purpose) and R307-104-3 (Disclosure of conflict of interest), is available within this docket. These rules address conflict of interest requirements of section 128(a)(2). We propose to approve this new rule language as meeting the requirements of section 128 for the reasons explained in more detail below. Because this revision meets the requirements of section 128, we also propose to approve the State's infrastructure SIP submissions for element 110(a)(2)(E)(ii). The State submitted the provisions to meet section 128 separately, but section 128 is not NAAQS-specific and once the State has met the requirements of section 128, that is sufficient for purposes of section 110(a)(2)(E)(ii) for all NAAQS. If we finalize this proposed approval for the 2008 Pb, 2008 ozone, 2010 NO2, 2010 SO2, and 2012 PM2.5 NAAQS, this will also resolve the prior disapproval for element 110(a)(2)(E)(ii) for the 1997 and 2006 PM2.5 NAAQS and terminate the EPA's FIP obligation.

    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 128.8 In this proposal notice, we discuss additional relevant aspects of section 128. We first note that, in the conference report of the 1977 amendments to the CAA, the conference committee stated, “[i]t is the responsibility of each state to determine the specific requirements to meet the general requirements of [section 128].” 9 This legislative history indicates that Congress intended states to have some latitude in adopting SIP provisions with respect to section 128, so long as states meet the statutory requirements of the section. We also note that Congress explicitly provided in section 128 that states could elect to adopt more stringent requirements, as long as the minimum requirements of section 128 are met.

    8 Memorandum from David O. Bickart, Deputy General Counsel, to Regional Air Directors, Guidance to States for Meeting Conflict of Interest Requirements of Section 128 (Mar. 2, 1978).

    9 H.R. Rep. 95-564 (1977), reprinted in 3 Legislative History of the Clean Air Act Amendments of 1977, 526-27 (1978).

    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 PM2.5 NAAQS certification, the State asserts that there is no such multi-member board or body, citing Utah Code section 19-2-104, Powers of the board. Subsection 19-2-104(7) specifies that the Utah AQB lacks authority over permits, and subsection 19-2-104(3) gives the Utah AQB authority only to recommend that the Director issue and enforce orders. The EPA proposes to determine that the Utah AQB does not approve permits or enforcement orders under the Act, and as a result, Utah need not submit any provisions to address the requirements of section 128(a)(1).10 However, the EPA interprets subsection 128(a)(2) to apply to all states, regardless of whether the state has a multi-member board that approves permits or enforcement orders. As a result, 128(a)(2) applies to Utah, and, as previously explained, must be met through SIP-approved, federally enforceable provisions.

    10 In 2012, the Utah Legislature amended state law to generally transfer authority of the Utah AQB over permits and enforcement orders to the Director of Utah DAQ and Executive Director of Utah DEQ. See 78 FR 52477, 52482 (Aug. 23, 2013).

    The EPA has evaluated Utah's submittal containing R307-104-1 (Authority), R307-104-2 (Purpose) and R307-104-3 (Disclosure of conflict of interest) (available within this docket) from the State in light of the requirements of section 128, these key considerations previously noted, and the recommendations in the 1978 guidance. To meet the requirements of subsection 128(a)(2), the State's R307-104-3 (Disclosure of conflict of interest), includes disclosure of conflicts of interest requirements applying to “any member of the board or body which approves permits or enforcement orders, the head of the Utah [DAQ] with similar powers, and the head of the Utah [DEQ] with similar powers.” Under Utah's administrative procedures, the Director of Utah DAQ has the initial authority to issue air permits and enforcement orders, and the Executive Director of Utah DEQ has the ultimate authority to resolve administrative adjudicative proceedings regarding permits and enforcement orders. See Utah Code 19-1-301, 19-1-301.5. Thus, Utah's submittal addresses disclosure of potential conflicts of interest from the heads of executive agencies that approve permits and enforcement orders under the Act.

    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, 2010 NO2, 2010 SO2 and 2012 PM2.5 NAAQS.

    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 Source Surveillance, (including R307-150, and R307-165) pertain to its program of periodic emissions testing and plant inspections of stationary sources, and related testing requirements and protocols (including periodic reporting) to assure compliance with emissions limits. R307-170 requires certain large sources to install and maintain continuous emission monitors to assure compliance with emission limitations established in approval orders and the SIP. In addition, Utah provides for monitoring, recordkeeping, and reporting requirements for sources subject to minor and major source permitting.

    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 months, giving states one calendar-year to submit emissions data. All states are required to submit a comprehensive emissions inventory every three years and report emissions for certain larger sources annually through the EPA's online Emissions Inventory System. States report emissions data for the six criteria pollutants and their associated precursors—nitrogen oxides, sulfur dioxide, ammonia, lead, carbon monoxide, particulate matter and volatile organic compounds. Many states also voluntarily report emissions of hazardous air pollutants. Utah made its latest update to the NEI in March 2016. The EPA compiles the emissions data, supplementing it where necessary, and releases it to the general public through the Web site https://www.epa.gov/air-emissions-inventories.

    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, 2010 NO2, 2010 SO2 and 2012 PM2.5 NAAQS.

    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.” 11 If such action may not practicably assure prompt protection, then the Administrator has authority to issue temporary administrative orders to protect the public health or welfare, or the environment, and such orders can be extended if the EPA subsequently files a civil suit. We propose to find that Utah's infrastructure SIP submittals provide for authority for the State comparable to that granted to the EPA Administrator to act in the face of an imminent and substantial endangerment to the public's health or welfare, or the environment.

    11 A discussion of the requirements for meeting CAA section 303 is provided in our notice of proposed rulemaking: Promulgation of State Implementation Plan Revisions; Infrastructure Requirements for the 1997 and 2006 PM2.5, 2008 Lead, 2008 Ozone, and 2010 NO2 National Ambient Air Quality Standards; South Dakota (79 FR 71040, Dec. 1, 2014) under “VI. Analysis of State Submittals, 8. Emergency powers.”

    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 Legal Authority codified at R307-110-2) to abate pollutant emissions on an emergency basis to prevent substantial endangerment to the health of persons. Utah Code 19-2-116(3)(a) also provides the director the power to “initiate an action for appropriate injunctive relief . . . when it appears necessary for the protection of health and welfare.” Utah Code 19-2-112(1)(a) provides authority to the “executive director, with the concurrence of the governor” to order people “causing or contributing to . . . air pollution to reduce or discontinue immediately the emission of air pollutants” if the “executive director finds that a generalized condition of air pollution exists and that it creates an emergency requiring immediate action to protect human health or safety.” Utah Code 19-2-112(2)(a) describes how in instances of an “absence of a generalized condition of air pollution” referred to in subsection (1), the executive director may still commence adjudicative proceedings as long as the executive director “finds that emissions from the operation of one or more air pollutant sources is causing imminent danger to human health or safety.”

    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. See Utah Code 53-2a-209(3).

    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 (Prevention of Air Pollution Emergency Episodes), codified at R307-110-8, most recently on February 14, 2006 at 71 FR 7679. We find that Utah's air pollution emergency rules include PM10,12 ozone, NO2, and SO2; establish stages of episode criteria; provide for public announcement whenever any episode stage has been determined to exist; and specify emission control actions to be taken at each episode stage, consistent with the EPA emergency episode SIP requirements set forth at 40 CFR part 51 subpart H (prevention of air pollution emergency episode) for particulate matter, ozone, NO2, and SO2.

    12 The EPA has not yet promulgated regulations for ambient levels pertaining to priority levels for PM2.5 under the 2012 NAAQS (2013 Memo, p. 47). EPA's September 25, 2009 Memo (available within the docket) suggested that states with areas that have had a PM2.5 exceedance greater than 140.4 mg/m3 should develop and submit an emergency episode plan. If no such concentration was recorded in the last three years, the guidance suggested that the State can rely on its general emergency authorities. In this rulemaking, we continue to view these suggestions as appropriate in assessing Utah's SIP for this element. Utah has not had such a recorded PM2.5 level and thus an emergency episode plan for PM2.5 is not necessary. The SIP therefore meets the requirements of CAA section 110(a)(2)(G) for the 2012 PM2.5 NAAQS.

    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).13 Accordingly, the EPA believes the central components of a contingency plan would be to reduce emissions from the source at issue and communicate with the public as needed. We note that 40 CFR part 51, subpart H (51.150-51.152) and 40 CFR part 51, Appendix L do not apply to Pb.

    13 October 14, 2011, “Guidance on Infrastructure SIP Elements Required Under Sections 110(a)(1) and (2) for the 2008 Lead (Pb) National Ambient Air Quality Standards (NAAQS).”

    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 NO2, 2010 SO2 and 2012 PM2.5 NAAQS.

    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 quality standard or the availability of improved or more expeditious methods of attaining such standard[;] and (ii) except as provided in paragraph (3)(C), whenever the Administrator finds on the basis of information available to the Administrator that the [SIP] is substantially inadequate to attain the [NAAQS] which it implements or to otherwise comply with any additional requirements under this [Act].”

    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 (Legal Authority) adopting requirements for transportation consultation, SIP Section VI (Intergovernmental Cooperation), and SIP Section XII (Transportation Conformity Consultation) to meet the requirements of CAA section 121. The State has demonstrated that it has the authority and rules in place to provide a process of consultation with general purpose local governments, designated organizations of elected officials of local governments and any Federal Land Manager having authority over federal land to which the SIP applies, consistent with the requirements of CAA section 121 (see 59 FR 2988, Jan. 20, 1994). Furthermore, SIP section XVI, cited by Utah, meets the general requirements of CAA section 127 to notify the public when the NAAQS have been exceeded.

    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, 2010 NO2, 2010 SO2 and 2012 PM2.5 NAAQS.

    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, 2010 NO2, 2010 SO2 and 2012 PM2.5 NAAQS.

    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, Permits: Fees for Approval Orders, requires the owner and operator of each new major source or major modification to pay a fee sufficient to cover the reasonable costs of reviewing and acting upon the notice of intent and implementing and enforcing requirements placed on such source by any approval order issued. The EPA approved R307-414 most recently on February 14, 2006 at 71 FR 7679. SIP Section I (Legal Authority) “identifies the statutory authority to charge a fee to major sources to cover permit and enforcement expenses . . .” SIP Section I was codified at R307-10-2 and the EPA approved it most recently on June 25, 2003 at 68 FR 37744.

    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, 2010 NO2, 2010 SO2 and 2012 PM2.5 NAAQS.

    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 (Intergovernmental Cooperation) codified at R307-110-7 and SIP Section XII (Transportation Conformity Consultation) codified at R307-110-20, contained within this docket) meet the requirements of CAA section 110(a)(2)(M). We propose to approve Utah's SIP as meeting these requirements for the 2008 Pb, 2008 ozone, 2010 NO2, 2010 SO2 and 2012 PM2.5 NAAQS.

    VII. What action is the EPA taking?

    In this action, the EPA is proposing to approve infrastructure elements for the 2008 Pb, 2008 ozone, 2010 NO2, 2010 SO2 and 2012 PM2.5 NAAQS from the State's certifications as shown in Table 1. Elements we propose no action on are reflected in Table 2. Finally, the EPA is proposing to approve a new UAC submitted on March 14, 2016 to satisfy requirements of element (E)(ii),which refers to requirements related to state boards.

    A comprehensive summary of infrastructure elements, and revisions and additions to the UAC organized by the EPA's proposed rule action are provided in Table 1 and Table 2.

    Table 1—List of Utah Infrastructure Elements and Revisions That the EPA Is Proposing To Approve Proposed for approval December 3, 2007 submittal—1997 PM2.5 NAAQS: (D)(ii) September 21, 2010 submittal—2006 PM2.5 NAAQS: (D)(ii) January 19, 2012 submittal—2008 Pb NAAQS: (A), (C), (D)(i)(II) element 3, (D)(ii), (E), (F), (G), (H), (J), (K), (L) and (M). June 2, 2013 submittal—2010 SO2 NAAQS: (A), (C), (D)(i)(II) element 3, (D)(ii), (E), (F), (G), (H), (J), (K), (L) and (M). January 31, 2013 submittal—2008 Ozone NAAQS: (A), (B), (C), (D)(i)(II) element 3, (D)(ii), (E), (F), (G), (H), (J), (K), (L) and (M). January 31, 2013 submittal—2010 NO2 NAAQS: (A), (C), (D)(i)(II) element 3, (D)(ii), (E), (F), (G), (H), (J), (K), (L) and (M). December 4, 2015 submittal—2012 PM2.5 NAAQS: (A), (C), (D)(i)(II) element 3, (D)(ii), (E), (F), (G), (H), (J), (K), (L) and (M). March 14, 2016 submittal—New Rules to UAC Rules, CAA Section 128 R307-104-1, R307-104-2 and R307-104-3. Table 2—List of Utah Infrastructure Elements and Revisions That the EPA Is Proposing To Take No Action On Proposed for no action
  • (Revision to be made in separate rulemaking action)
  • January 19, 2012 submittal—2008 Pb NAAQS: (B), (D)(i)(I) elements 1 and 2, (D)(i)(II) element 4. January 31, 2013 submittal—2008 Ozone NAAQS: (D)(i)(I) elements 1 and 2, (D)(i)(II) element 4. January 31, 2013 submittal—2010 NO2 NAAQS: (B), (D)(i)(I) elements 1 and 2, (D)(i)(II) element 4. June 2, 2013 submittal—2010 SO2 NAAQS: (B), (D)(i)(I) elements 1 and 2, (D)(i)(II) element 4. December 22, 2015 submittal—2012 PM2.5 NAAQS: (B), (D)(i)(I) elements 1 and 2, (D)(i)(II) element 4.
    VIII. Incorporation by Reference

    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. Sub-element (ii): State boards, of this preamble. The EPA has made, and will continue to make, these documents generally available electronically through www.regulations.gov and/or in hard copy at the appropriate EPA office (see the ADDRESSES section of this preamble for more information).

    IX. Statutory and Executive Orders Review

    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 et seq.);

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

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

    • Does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, 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).

    List of Subjects in 40 CFR Part 52

    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.

    Authority:

    42 U.S.C. 7401 et seq.

    Dated: April 13, 2016. Debra H. Thomas, Acting Regional Administrator, Region 8.
    [FR Doc. 2016-09586 Filed 4-25-16; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R03-OAR-2016-0002; FRL-9945-46-Region 3] 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 AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    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 Federal Register, EPA is approving Pennsylvania's SIP submittal as a direct final rule without prior proposal because the Agency views this as a noncontroversial submittal and anticipates no adverse comments. The rationale for the approval is set forth in the direct final rule. More detailed descriptions of the state submittal and EPA's evaluation are included in Technical Support Documents (TSD) prepared in support of this rulemaking action. Copies of the TSDs are available, upon request, from the EPA Regional Office listed in the ADDRESSES section of this document or are also available electronically within the Docket for this rulemaking action. If no adverse comments are received in response to this action, no further activity is contemplated. If EPA receives adverse comments, the direct final rule will be withdrawn and all public comments received will be addressed in a subsequent final rule based on this proposed rule. EPA will not institute a second comment period. Any parties interested in commenting on this action should do so at this time.

    DATES:

    Comments must be received in writing by May 26, 2016.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R03-OAR-2016-0002 at http://www.regulations.gov, or via email to [email protected] For comments submitted at Regulations.gov, follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. For either manner of submission, EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be confidential business information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. EPA will generally not consider comments or comment contents located outside of the primary submission (i.e. on the web, cloud, or other file sharing system). For additional submission methods, please contact the person identified in the FOR FURTHER INFORMATION CONTACT section. For the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

    FOR FURTHER INFORMATION CONTACT:

    Maria A. Pino, (215) 814-2181, or by email at [email protected]

    SUPPLEMENTARY INFORMATION:

    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 Federal Register.

    Dated: April 8, 2016. Shawn M. Garvin, Regional Administrator, Region III.
    [FR Doc. 2016-09590 Filed 4-25-16; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 52 and 81 [EPA-R04-OAR-2012-0323; FRL-9945-63-Region 4] Air Plan Approval and Air Quality Designation; TN; Redesignation of the Sullivan County Lead Nonattainment Area to Attainment AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    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.

    DATES:

    Comments must be received on or before May 26, 2016.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R04-OAR-2012-0323 at http://www.regulations.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. EPA will generally not consider comments or comment contents located outside of the primary submission (i.e. on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

    FOR FURTHER INFORMATION CONTACT:

    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 [email protected]

    SUPPLEMENTARY INFORMATION: I. What are the actions EPA is proposing to take?

    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. See 77 FR 52232. In that determination and in accordance with EPA's clean data policy, EPA suspended the requirements for the Area to submit a SIP revision addressing RACM, RFP plans, contingency measures, and certain other Subpart 1 requirements so long as the Area continues to attain the 2008 lead NAAQS.1 Although these requirements are suspended, EPA is proposing to determine that the State's Subpart 1 RACM determination meets the requirements of section 172(c)(1) of the CAA and is proposing to approve this RACM determination into the SIP for the reasons discussed in Section V.A, below.

    1 Following enactment of the CAA Amendments of 1990, EPA promulgated its interpretation of the requirements for implementing the NAAQS in the general preamble for the Implementation of Title I of the CAA Amendments of 1990 (General Preamble) 57 FR 13498, 13564 (April 16, 1992). In 1995, based on the interpretation of CAA sections 171 and 172, and section 182 in the General Preamble, EPA set forth what has become known as its “Clean Data Policy” for the 1-hour ozone NAAQS. See Memorandum from John S. Seitz, Director, Office of Air Quality Planning and Standards, “RFP, Attainment Demonstration, and Related Requirements for Ozone Nonattainment Areas Meeting the Ozone National Ambient Air Quality Standard” (May 10, 1995). Since 1995, EPA has applied its interpretation under the Clean Data Policy in many rulemakings, suspending certain attainment-related planning requirements for individual areas, based on a determination of attainment and that interpretation has been upheld by federal courts. For more information on the Clean Data Policy and its application to the 2008 lead NAAQS, see EPA's August 29, 2012, final action. See 77 FR 52232.

    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.2

    2 The date of the transmittal letter for Tennessee's submittal is July 10, 2015.

    II. What is the background for EPA's proposed actions?

    On November 12, 2008, EPA promulgated a revised primary and secondary lead NAAQS of 0.15 micrograms per cubic meter (µg/m3). See 73 FR 66964. Under EPA's regulations at 40 CFR part 50, the 2008 lead NAAQS are met when the maximum arithmetic 3-month mean concentration for a 3-year period, as determined in accordance with appendix R of 40 CFR part 50, is less than or equal to 0.15 µg/m3. See 40 CFR 50.16. Ambient air quality monitoring data for the 3-year period must meet a data completeness requirement.

    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. See 75 FR 71033. This established an attainment date five years after the December 31, 2010, effective date for the 2008 lead nonattainment designations pursuant to CAA section 172(a)(2)(A). Therefore, the Bristol Area's attainment date is December 31, 2015.

    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. See 77 FR 52232. Although a Clean Data Determination waives the requirements for an attainment demonstration, a state must submit, and EPA must approve, a redesignation request and a maintenance plan SIP revision before an area can be redesignated to attainment.

    III. What are the criteria for redesignation?

    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 the area under section 110(k); (3) the Administrator determines that the improvement in air quality is due to permanent and enforceable reductions in emissions resulting from implementation of the applicable SIP and applicable Federal air pollutant control regulations and other permanent and enforceable reductions; (4) the Administrator has fully approved a maintenance plan for the area as meeting the requirements of section 175A; and (5) the state containing such area has met all requirements applicable to the area for purposes of redesignation under section 110 and part D of the CAA.

    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.

    IV. Why is EPA proposing these actions?

    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.

    V. What is EPA's analysis of the state's redesignation request and SIP revision?

    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.

    A. RACM Determination 1. Relationship Between Subpart 1 RACM and the Redesignation Criteria

    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. See 80 FR 16331 (March 27, 2015). However, on March 18, 2015, the United States Court of Appeals for the Sixth Circuit (Sixth Circuit) issued an opinion in Sierra Club v. EPA, 781 F.3d 299 (6th Cir. 2015), that is inconsistent with this longstanding interpretation regarding section 107(d)(3)(E)(ii). In its decision, the Court vacated EPA's redesignation of the Indiana and Ohio portions of the Cincinnati-Hamilton nonattainment area to attainment for the 1997 PM2.5 NAAQS because EPA had not yet approved Subpart 1 RACM for the Cincinnati Area into the Indiana and Ohio SIPs.3 The Court concluded that “a State seeking redesignation `shall provide for the implementation' of RACM/RACT, even if those measures are not strictly necessary to demonstrate attainment with the PM2.5 NAAQS. . . . If a State has not done so, EPA cannot `fully approve[]' the area's SIP, and redesignation to attainment status is improper.” Sierra Club, 781 F.3d at 313.

    3 The Court issued an amended decision on July 14, 2015, revising some of the legal aspects of the Court's analysis of the relevant statutory provisions (section 107(d)(3)(E)(ii) and section 172(c)(1)) but maintaining its prior holding that section 172(c)(1) “unambiguously requires implementation of RACM/RACT prior to redesignation . . . even if those measures are not strictly necessary to demonstrate attainment with the PM2.5 NAAQS.” See Sierra Club v. EPA, 793 F.3d 656, 670 (6th Cir. 2015).

    EPA is bound by the Sixth Circuit's decision in Sierra Club v. EPA within the Court's jurisdiction.4 Although EPA continues to believe that Subpart 1 RACM is not an applicable requirement under section 107(d)(3)(E) for an area that has already attained the 2008 lead NAAQS, EPA is proposing to approve Tennessee's RACM determination into the SIP pursuant to the Court's decision.5 6

    4 The states of Kentucky, Michigan, Ohio, and Tennessee are located within the Sixth Circuit's jurisdiction.

    5 Pursuant to 40 CFR 56.5(b), the EPA Region 4 Regional Administrator signed a memorandum on July 20, 2015, seeking concurrence from the Director of EPA's Air Quality Policy Division (AQPD) in the Office of Air Quality Planning and Standards to act inconsistent with EPA's interpretation of CAA sections 107(d)(3)(E) and 172(c)(1) when taking action on pending and future redesignation requests in Kentucky and Tennessee because the Region is bound by the Sixth Circuit's decision in Sierra Club v. EPA. The AQPD Director issued her concurrence on July 22, 2015. The July 20, 2015, memorandum with AQPD concurrence is located in the docket for today's proposed actions.

    6 On September 3, 2015, the Sixth Circuit denied the petitions for rehearing en banc of this portion of its opinion that were filed by EPA, the state of Ohio, and industry groups from Ohio. Sierra Club v. EPA, Nos. 12-3169, 12-3182, 12-3420, Doc. 136-1 (6th Cir. Sept. 3, 2015). On March 28, 2016, the United States Supreme Court denied Ohio's petition for a writ of certiorari seeking review of Sierra Club v. EPA.

    2. Subpart 1 RACM Requirements

    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.” See CAA section 172(c)(1). EPA has consistently interpreted this provision to require only implementation of potential RACM measures that could advance attainment.7 Thus, where an area is already attaining the standard, no additional RACM measures are required. EPA's interpretation that Subpart 1 requires only the implementation of RACM measures that would advance attainment was upheld by the United States Court of Appeals for the Fifth Circuit 8 and by the United States Court of Appeals for the DC Circuit.9

    7 This interpretation was adopted in the General Preamble, see 57 FR 13498 (April 16, 1992), and has been upheld as applied to the Clean Data Policy, as well as to nonattainment SIP submissions. See NRDC v. EPA, 571 F.3d 1245 (D.C. Cir. 2009); Sierra Club v. EPA, 294 F.3d 155 (D.C. Cir. 2002).

    8Sierra Club v. EPA, 314 F.3d 735, 743-745 (5th Cir. 2002).

    9Sierra Club v. EPA, 294 F.3d 155, 162-163 (D.C. Cir. 2002); NRDC v. EPA, 571 F.3d 1245, 1252 (D.C. Cir. 2009).

    3. Proposed Action on RACM Based on Attainment of the NAAQS

    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. See 77 FR 52232. Because the Area has attained the standard, there are no emissions controls that could advance the attainment date; thus, no emissions controls are necessary to satisfy Subpart 1 RACM.

    4. Proposed Action on RACM Based on the State's Analysis

    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.

    B. Redesignation Request and Maintenance Demonstration

    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.

    Criteria (1)—The Bristol Area Has Attained the 2008 Lead NAAQS

    For redesignating a nonattainment area to attainment, the CAA requires EPA to determine that the area has attained the applicable NAAQS. See CAA section 107(d)(3)(E)(i). For lead, an area may be considered to be attaining the 2008 lead NAAQS if it meets the 2008 lead NAAQS, as determined in accordance with 40 CFR 50.16 and Appendix R of part 50, based on three complete, consecutive calendar years of quality-assured air quality monitoring data. To attain the NAAQS, the maximum arithmetic 3-month mean concentration for a 3-year period lead concentrations measured at each monitor within an area over each year must not exceed 0.15 µg/m3. Based on the data handling and reporting convention described in 40 CFR part 50, Appendix R, the NAAQS are attained if the design value is 0.15 µg/m3 ppm or below. The data must be collected and quality-assured in accordance with 40 CFR part 58 and recorded in the EPA Air Quality System (AQS). The monitors generally should have remained at the same location for the duration of the monitoring period required for demonstrating attainment.

    On August 29, 2012, EPA determined that the Bristol Area was attaining the 2008 lead NAAQS based on certified 2009-2011 data. See 77 FR 52232. In this proposed action, EPA is preliminarily determining that the Bristol Area has continued to attain the 2008 lead NAAQS since 2011. EPA has reviewed quality-assured lead monitoring data, recorded in AQS, for 2012-2014 from the state-run monitoring station in the Bristol Area as well as preliminary data from this station for 2015.10 The 3-year design values for 2008-2014 from this monitoring station are summarized in Table 1, below.

    10 Data from the state-run monitor can be used for comparison with the NAAQS because it is operated in accordance with 40 CFR part 58. In addition to the State-run monitor, Exide Technologies operates three monitors in the Area. Although data from Exide's monitors cannot be used for comparison with the NAAQS because compliance with the quality assurance provisions in 40 CFR part 58 has not been verified, Tennessee provided the measurements from these monitors as additional support information in the July 15, 2015, SIP submission.

    Table 1—2008-2014 Design Value Concentrations for the Bristol Area (µg/m 3) Monitoring station 2008-2010 2009-2011 2010-2012 2011-2013 2012-2014 47-163-3004 0.05 0.08 0.08 0.08 0.07

    The 3-year design value for 2012-2014 for the Bristol Area is 0.07 µg/m3 which meets the NAAQS. Although 2012-2014 data are the most recent quality-assured and certified data, preliminary 2015 data indicate that the Area continues to attain the standard. In today's proposed action, EPA is proposing to determine that the Bristol Area is continuing to attain the 2008 lead NAAQS. If the Area does not continue to attain the standard before EPA finalizes the redesignation, EPA will not go forward with the redesignation. As discussed in more detail below, Tennessee has committed to continue monitoring ambient air lead concentrations in this Area in accordance with 40 CFR part 58.

    Criteria (2)—Tennessee has a Fully Approved SIP Under Section 110(k) for the Bristol Area; and Criteria (5)—Tennessee Has Met all Applicable Requirements Under Section 110 and Part D of Title I of the CA

    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 approval of Tennessee's Subpart 1 RACM determination for the Area. In making these proposed determinations, EPA ascertained which requirements are applicable to the Area and, if applicable, that they are fully approved under section 110(k). SIPs must be fully approved only with respect to requirements that were applicable prior to submittal of the complete redesignation request.

    a. The Bristol Area Has Met All Applicable Requirements Under Section 110 and Part D of the CAA

    General SIP requirements. General SIP elements and requirements are delineated in section 110(a)(2) of title I, part A of the CAA. These requirements include, but are not limited to, the following: Submittal of a SIP that has been adopted by the state after reasonable public notice and hearing; provisions for establishment and operation of appropriate procedures needed to monitor ambient air quality; implementation of a source permit program; provisions for the implementation of part C requirements (Prevention of Significant Deterioration (PSD)) and provisions for the implementation of part D requirements (New Source Review (NSR) permit programs); provisions for air pollution modeling; and provisions for public and local agency participation in planning and emission control rule development.

    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 (i.e., for redesignations) of conformity and oxygenated fuels requirements, as well as with section 184 ozone transport requirements. See Reading, Pennsylvania, proposed and final rulemakings (61 FR 53174-53176, October 10, 1996), (62 FR 24826, May 7, 2008); Cleveland-Akron-Loraine, Ohio, final rulemaking (61 FR 20458, May 7, 1996); and Tampa, Florida, final rulemaking at (60 FR 62748, December 7, 1995). See also the discussion on this issue in the Cincinnati, Ohio, redesignation (65 FR 37890, June 19, 2000), and in the Pittsburgh, Pennsylvania, redesignation (66 FR 50399, October 19, 2001). Nonetheless, EPA has approved Tennessee's SIP revision related to the section 110 requirements for the 2008 lead NAAQS. See 78 FR 36440 (June 18, 2013); and 78 FR 67307 (November 12, 2013).

    Title I, Part D, applicable SIP requirements. Subpart 1 of part D, found in sections 172-176 of the CAA, sets forth the basic nonattainment requirements applicable to all nonattainment areas. All areas that were designated nonattainment for the 2008 lead NAAQS were designated under Subpart 1 of the CAA in accordance with the deadlines in subpart 5. For purposes of evaluating this redesignation request, the applicable part D, Subpart 1 SIP requirements for all nonattainment areas are contained in sections 172(c)(1)-(9) and in section 176. A thorough discussion of the requirements contained in sections 172 and 176 can be found in the General Preamble for Implementation of title I. See 57 FR 13498 (April 16, 1992).

    Subpart 1 Section 172 Requirements. Section 172 requires states with nonattainment areas to submit attainment plans providing for timely attainment and meeting a variety of other requirements. However, EPA's final determination that the Area is attaining the lead standard suspended Tennessee's obligation to submit most of the attainment planning requirements that would otherwise apply.

    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. See 57 FR 13498, 13564 (April 16, 1992). EPA noted that the requirements for reasonable further progress (RFP) and other measures designed to provide for attainment do not apply in evaluating redesignation requests because those nonattainment planning requirements “have no meaning” for an area that has already attained the standard. Id. This interpretation was also set forth in the Calcagni Memorandum. EPA's understanding of section 172 also forms the basis of its Clean Data Policy, which suspends a state's obligation to submit most of the attainment planning requirements that would otherwise apply, including an attainment demonstration and planning SIPs to provide for RFP, RACM, and contingency measures under section 172(c)(9). However, as discussed above, EPA is proposing to approve Tennessee's RACM determination into the SIP in response to the Sixth Circuit's decision that section 172(c)(1) RACM is an applicable requirement under 107(d)(3)(E)(ii) and must be approved into the SIP before EPA can redesignate an area that is subject to section 172(c)(1) requirements.

    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. See 79 FR 1593.

    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).

    Section 176 Conformity Requirements. Section 176(c) of the CAA requires states to establish criteria and procedures to ensure that federally supported or funded projects conform to the air quality planning goals in the applicable SIP. The requirement to determine conformity applies to transportation plans, programs, and projects that are developed, funded, or approved under title 23 of the United States Code (U.S.C.) and the Federal Transit Act (transportation conformity) as well as to all other federally supported or funded projects (general conformity). State transportation conformity SIP revisions must be consistent with Federal conformity regulations relating to consultation, enforcement, and enforceability that EPA promulgated pursuant to its authority under the CAA. In light of the elimination of lead additives in gasoline, transportation conformity does not apply to the lead NAAQS. See 73 FR 66964.

    b. The Bristol Area Has a Fully Approved Applicable SIP Under Section 110(k) of the CAA

    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 (see Calcagni Memorandum at p. 3; Southwestern Pennsylvania Growth Alliance v. Browner, 144 F.3d 984, 989-90 (6th Cir. 1998); Wall, 265 F.3d 426) plus any additional measures it may approve in conjunction with a redesignation action. See 68 FR 25426 (May 12, 2003) and citations therein. Following passage of the CAA of 1970, Tennessee has adopted and submitted, and EPA has fully approved at various times, provisions addressing various SIP elements applicable for the 2008 lead NAAQS in the Bristol Area (e.g., 78 FR 36440 (June 18, 2013); and 78 FR 67307 (November 12, 2013)). In today's proposed action, EPA is proposing to approve the State's Subpart 1 RACM determination for the Area into the Tennessee SIP.

    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.

    Criteria (3)—The Air Quality Improvement in the Bristol Area Is Due to Permanent and Enforceable Reductions in Emissions Resulting From Implementation of the SIP and Applicable Federal Air Pollution Control Regulations and Other Permanent and Enforceable Reductions

    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. See Appendix F of the State's submittal. EPA considers the emissions reductions from the Exide Facility to be permanent and enforceable.

    Criteria (4)—The Tennessee Portion of the Area Has a Fully Approved Maintenance Plan Pursuant to Section 175A of the CAA

    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. See CAA section 107(d)(3)(E)(iv). In conjunction with its request to redesignate the Tennessee portion of the Bristol Area to attainment for the 2008 lead NAAQS, TDEC submitted a SIP revision to provide for maintenance of the 2008 lead NAAQS for at least 10 years after the effective date of redesignation to attainment. EPA believes that this maintenance plan meets the requirements for approval under section 175A of the CAA.

    a. What is required in a maintenance plan?

    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 contingency measures as EPA deems necessary to assure prompt correction of any future 2008 lead violations. The Calcagni Memorandum provides further guidance on the content of a maintenance plan, explaining that a maintenance plan should address five requirements: The attainment emissions inventory, maintenance demonstration, monitoring, verification of continued attainment, and a contingency plan. As is discussed more fully below, EPA has preliminarily determined that Tennessee's maintenance plan includes all the necessary components and is thus proposing to approve it as a revision to the Tennessee SIP.

    b. Attainment Emissions Inventory

    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 (i.e., 2010 through 2025). Tennessee determined that there are no sources of lead emissions in the Area from non-road and on-road sources based on EPA's 2008 NEI ver.2 database. Table 2, below, identifies base year emissions, attainment year emissions and projected emissions for 2010, 2012, 2015, and 2025.

    c. Maintenance Demonstration

    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.

    11 For 2015 and 2025, Tennessee included fugitive emissions of 0.01 tpy and area source emissions of 0.01 tpy (a conservative approach given that the State calculated area source emissions of 0.0001 tpy).

    Table 2—Actual and Projected Annual Lead Emissions (tpy) for the Bristol Area11 2010 Base year 2012 Attainment year 2015 Interim year 2025 Maintenance year 0.7 0.5 0.02 0.02

    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/m3; and lead emissions from all source categories are projected to be approximately one order of magnitude below the NAAQS in 2025.

    d. Monitoring Network

    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.

    e. Verification of Continued Attainment

    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 is required to develop a comprehensive, annual, statewide emissions inventory every three years that is due twelve to eighteen months after the completion of the inventory year. The AERR inventory years match the base year and final year of the inventory for the maintenance plan, and are within one or two years of the interim inventory years of the maintenance plan. Therefore, TDEC commits to compare the AERR inventories as they are developed with the 2010 and 2025 inventories in the maintenance plan to evaluate compliance with the 2008 lead NAAQS in this Area.

    f. Contingency Measures in the Maintenance Plan

    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/m3 (i.e., 90 percent of the standard) occurs within the Area. A warning level response will consist of a study to determine whether the lead value indicates a trend toward higher lead values. The study will evaluate whether the trend, if any, is likely to continue and, if so, what control measures are necessary to reverse the trend taking into consideration ease and timing for implementation as well as economic and social considerations. Implementation of necessary controls in response to a warning level response trigger will take place as expeditiously as possible, but in no event later than 12 months from the conclusion of the most recent calendar year.

    An action level response is triggered whenever the 3-month rolling average concentration of 0.143 μg/m3 (i.e., 95 percent of the standard) or greater occurs within the Area. A violation of the standard (any 3-month rolling average over a 36-month rolling average period (3-calendar years plus the preceding 2 months) exceeds 0.15 μg/m3) shall also prompt an action level response. In the event that the action level is triggered and is not found to be due to an exceptional event, malfunction, or noncompliance with a permit condition or rule requirement, TDEC in conjunction with the entity(ies) believed to be responsible for the exceedance will evaluate additional control measures needed to assure future attainment of the 2008 lead NAAQS. Measures that can be implemented in a short time will be selected in order to be in place within 18 months from the close of the calendar year that prompted the action level. TDEC will also consider the action level trigger and determine if additional, significant new regulations not currently included as part of the maintenance provisions will be implemented in a timely manner.

    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.

    VI. Proposed Actions

    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 data in AQS for 2015, that the Area continues to attain the 2008 lead NAAQS following EPA's determination of attainment.

    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.

    VII. Statutory and Executive Order Reviews

    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. See 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, these proposed actions merely approve state law as meeting federal requirements and do not impose additional requirements beyond those imposed by State law. For that reason, these proposed actions:

    • 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 et seq.);

    • 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 et seq.);

    • 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.

    List of Subjects 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Lead, Reporting and recordkeeping requirements.

    40 CFR Part 81

    Environmental protection, Air pollution control.

    Authority:

    42 U.S.C. 7401 et seq.

    Dated: April 14, 2016. Heather McTeer Toney, Regional Administrator, Region 4.
    [FR Doc. 2016-09600 Filed 4-25-16; 8:45 am] BILLING CODE 6560-50-P
    LEGAL SERVICES CORPORATION 45 CFR Part 1627 Subgrants and Membership Fees or Dues AGENCY:

    Legal Services Corporation.

    ACTION:

    Further notice of proposed rulemaking.

    SUMMARY:

    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.

    DATES:

    Comments must be submitted by June 10, 2016.

    ADDRESSES:

    You may submit comments by any of the following methods:

    Email: [email protected] Include “Part 1627 FNPRM” in the subject line of the message.

    Fax: (202) 337-6519, ATTN: Part 1627 FNPRM.

    Mail: Stefanie K. Davis, Assistant General Counsel, Legal Services Corporation, 3333 K Street NW., Washington, DC 20007, ATTN: Part 1627 FNPRM.

    Hand Delivery/Courier: Stefanie K. Davis, Assistant General Counsel, Legal Services Corporation, 3333 K Street NW., Washington, DC 20007, ATTN: Part 1627 FNPRM.

    Instructions: Electronic submissions are preferred via email with attachments in Acrobat PDF format. LSC will not consider written comments received after the end of the comment period.

    FOR FURTHER INFORMATION CONTACT:

    Stefanie K. Davis, Assistant General Counsel, Legal Services Corporation, 3333 K Street NW., Washington, DC 20007, (202) 295-1563 (phone), (202) 337-6519 (fax), [email protected]

    SUPPLEMENTARY INFORMATION: I. Introduction

    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 Grant (TIG) program. In its audit report, OIG disagreed with LSC management's (Management) interpretation and application of the rules governing subgrants and transfers of LSC funds because “[t]he subgrant rule appears to have been written with the LSC's principal legal service grants in mind, such that ordinarily, programmatic activities consist of the provision of legal services, and business services can easily be classified as ancillary. This division is not as easy to make in the case of TIG grants, and the rule does not seem to have anticipated this problem.” Audit of Legal Services Corporation's Technology Initiative Grant Program, Report No. AU-11-01, at 42, Dec. 2010.

    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 Federal Register for notice and comment. On April 14, 2015, the Board accepted the Committee's recommendation and approved publication of the NPRM. The NPRM was published in the Federal Register on April 20, 2015, with a comment closing date of May 20, 2015. 80 FR 21692, Apr. 20, 2015. After receiving a request to extend the comment period, LSC gave interested parties an additional 21 days to respond to the NPRM. 80 FR 29600, May 22, 2015.

    II. Request for Comments

    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 Federal Register. This FNPRM is limited to soliciting additional comment on the proposed changes described herein. Commenters need not reiterate or resubmit comments in response to this supplemental notice that they previously submitted relating to these matters or other aspects of the proposed rule. LSC will consider all public comments submitted pursuant to the NPRM published on April 20, 2015, and in response to this FNPRM, when drafting the final rule.

    Proposed Change 1: Removing the Proposed Definition of “Programmatic”

    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.1 The current rule defines subrecipient, in relevant part, as an entity that accepts Corporation funds from a recipient under a grant contract, or agreement to conduct certain activities specified by or supported by the recipient related to the recipient's programmatic activities. 45 CFR 1627.2(b)(1). LSC proposed simplifying the definition of subrecipient and adding a definition of the term programmatic that included an explicit reference to the LSC Act's definition of legal assistance:

    1 The LSC Act defines “legal assistance” as “the provision of any legal services consistent with the purposes and provisions of this subchapter.” 42 U.S.C. 2996a(5). LSC incorporated that definition at 45 CFR 1600.1, and that definition applies to part 1627. In contrast, LSC has defined the term “legal assistance” more narrowly in other contexts to mean legal analysis tailored to a client's particular issue as opposed to “legal information” that does not involve the application of law to a person's specific problem. 45 CFR 1614.3(e) and (f); LSC Case Service Report Handbook, p. 3 (2008, as amended 2011).

    Programmatic means activities or functions carried out to provide legal assistance, as defined in § 1002 of the LSC Act, 42 U.S.C. 2996a(5). Programmatic activities do not include the provision of goods or services by vendors or consultants in the normal course of business that the recipient would not be expected to provide itself.

    80 FR 21692, 21694, Apr. 20, 2015. LSC proposed this definition to clearly limit the term programmatic to those activities in which the subrecipient essentially stands in the recipient's shoes to provide legal assistance.

    NLADA and NJP both objected to the proposed definition. NLADA called the definition:

    ambiguous as to what activities which involve the provision of legal services to eligible clients fall within LSC's definition of programmatic in order to be considered a subgrant rather than a procurement contract for goods or services. . . . The proposed definition is broad enough to encompass activities and services that do not involve the direct provision of legal services to eligible clients. NJP similarly stated that it “reads the definition of `programmatic' in subsection (b) as too broad and inconsistent for the purposes it appears intended to achieve.” Both organizations commented that the definition could be read to include transactions such as leasing office space. NJP further read the definition as potentially including the payment of bar dues or travel reimbursements to staff, and “providing fee-for-service contracts to lawyers or legal organizations that provide ongoing expertise in support of recipients' delivery of legal assistance, none of which are `vendors or consultants.'”

    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 programmatic to include “the provision of services under a special LSC grant project.”

    LSC agrees that its proposed definition of the term programmatic creates more problems than it solves. Commenters identified several ambiguities with the proposed definition and suggested solutions, but LSC determined that the potential solutions themselves created problems. For example, both NLADA and NJP stated that LSC's proposed definition was too broad and unclear, so both organizations offered language they believe would clarify that programmatic means only the delivery of legal assistance to eligible clients. Both NLADA's and NJP's suggested language, however, would narrow the definition beyond what LSC intended.

    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 programmatic also appears to be inconsistent with LSC's intent. The proposed rule emphasizes the nature of the activity funded, rather than the method of funding. For example, if “special LSC grant project” includes TIG awards or disaster relief grants, then “the provision of services under a special LSC grant project” could include pure technology developments or construction activities paid for using those grant funds. LSC intends to exclude from the rule those types of activities when conducted by a third party using LSC funds. By contrast, awards to carry out legal services activities would still be included in the rule, even though the award is made through a TIG.

    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 programmatic with a degree of precision sufficient to give grantees clear guidance about the term's meaning. LSC determined that the outer boundaries of the term were the restrictive concept of “direct provision of legal assistance and legal information to clients” and the comprehensive concept of “anything that supports the delivery of legal assistance and legal information to clients,” but could not develop a clear statement of where the line between programmatic and non-programmatic activities lay. LSC analyzed fact patterns using the five subgrant factors in the Uniform Guidance, 2 CFR 200.330. LSC intends to adopt this five-factor analysis in part 1627. LSC determined that the guidance provided by the factors is adequate to assess whether a particular arrangement with a third party should be considered a subgrant or a procurement contract. Including the term programmatic did not improve the factors' utility.

    In this FNPRM, LSC proposes to remove the proposed definition of programmatic in § 1627.2 and to remove the term from the list of factors in proposed § 1627.3(b)(2). In its place, LSC proposes to define the term procurement contract in § 1627.2(b). LSC proposes to define and use this term for two reasons. The first is to highlight the distinction between subgrants, which involve provision of legal assistance, and procurement contracts, which are agreements to purchase goods or services that a recipient needs to carry out its LSC grant. The second is that LSC anticipates incorporating Uniform Guidance principles applicable to procurement contracts into part 1630 and the Property Acquisition and Management Manual (PAMM) through an ongoing rulemaking.

    Proposed Change 2: Allowing Recipients To Use Property or Services Acquired in Whole or in Part With LSC Funds as Support for a Subgrant

    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,

    a number of LSC funded programs would be prevented from using one of their most valuable assets—property they have invested in to provide economical office space for their operations. In a time of severe fiscal constraints, this non-monetary asset could be used in innovative ways to partner with community organizations, particularly pro bono programs, to enhance the availability of legal services for people who are poor and in need of legal services. They concluded their discussion of this issue by expressing their understanding that LSC must be able to ensure that recipients spend their LSC funding only on permissible activities. NLADA urged LSC to consider alternatives that “will not sever existing relationships or stifle further development based on in kind exchanges of goods and services funded in part or wholly by LSC.”

    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.

    MVL stated that a “major impact of the proposed rule would be increased costs of administration” to both it and CLS. It also pointed out that the rule could impact organizations with similar arrangements by limiting or prohibiting the receipt of in-kind services to assist and alleviate costs for both organizations; maintaining proximity to and continuity with the referral source; maintaining flexibility to serve its community; and “contending with LSC regulations contrary to organizational missions, objectives, and administration.” MVL concluded by urging LSC to reject the proposed rule.

    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 whether recipients may provide in-kind support to private attorneys under § 1614.4(b)(3). Additionally, NJP noted that the language requiring subgrants to be supported with LSC funds is inconsistent with the PAI rule, which directs recipients to spend “an amount equal to at least twelve and one-half percent (12.5%) of the recipient's annualized Basic Field-General award” to PAI activities. 45 CFR 1614.2(a). NJP stated: “If the goal is to ensure that subgrants mean the payment of LSC funds to a third party to carry out legal assistance activities, the definition of `subgrants' in proposed § 1627.2(d)(1) is adequate to accomplish this purpose. . . . Moreover, accounting for the use of LSC funds through auditing both subgrants and PAI cost allocations is adequate to ensure that LSC funds are spent consistent with governing statutes and regulations.” NJP suggested that LSC could revise the definition of subgrant to more specifically reference the use of LSC funds and requested that LSC not adopt proposed § 1627.3(c), which limits subgrant funding to LSC funds.

    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 subgrant as § 1627.2(e) and revise it to make clear that LSC funds and property or services acquired in whole or in part with LSC funds may be used to support a subgrant to a third party. Fourth, LSC proposes a new § 1627.4(a)(2), which explains how recipients are to assess the value of the goods or services to be awarded to a third party to carry out a subgrant. Fifth, LSC proposes to add language reflecting the decision to permit in-kind subgrants in paragraph (d)(2), which pertains to a recipient's responsibility to ensure its subrecipient's proper use of, accounting for, and auditing of LSC resources. Lastly, LSC proposes to add a new paragraph (f) setting forth the requirements for accounting for in-kind subgrants.

    Proposed Change 3: Establishing a $15,000 Threshold at Which Recipients Must Seek LSC's Written Approval Before Awarding a Subgrant

    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 (a)(2)(i), LSC proposes to require recipients to seek prior approval for subgrants when either the fair market value or the actual cost to the recipient of the property or service that supports the subgrant exceeds $15,000. LSC also proposes to require recipients to obtain independent property appraisals to assess the fair market value of real property that it contributes to a subgrant. Because LSC believes that $15,000 represents the amount at which it should have increased oversight of subgrants, LSC wants recipients to evaluate the value of the asset being exchanged based on both the fair market value and their internal cost to determine whether an amount that represents $15,000 or more of LSC funds is being given to a third party to carry out legal assistance activities. In paragraph (a)(2)(ii), LSC proposes to adopt language from the Uniform Guidance that requires recipients to document and support the valuation of property or services acquired in whole or in part with LSC funds by the same methods used internally for its other in-kind valuations.

    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.

    Proposed Change 4: Notifying Recipients of Decisions on Requests for Prior Approval of Subgrants

    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 2 because LSC believed that the provision was both unnecessary to ensure timely responses from LSC and reflective of poor grants management policy.

    2 Existing § 1627.3(a)(2) states that if LSC fails to act on the subgrant proposal within 45 days of submission, the recipient “shall notify the Corporation of this failure” and gives LSC seven additional days to respond to the proposal. The subgrant is deemed approved if LSC fails to respond within the additional seven days. For ease of reference, we refer to the entire § 1627.3(a)(2) period as “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. Id. 200.308(d). Section 200.308(i) of the Uniform Guidance requires Federal agencies to respond to a request for prior approval within 30 days of receipt. Id. 200.308(i). If a decision is still pending at the end of the 30-day period, the agency must advise the requester in writing of the date by which the requester can expect a decision. Id. The Uniform Guidance does not include a provision deeming a request approved based on agency inaction.

    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.

    Proposed Change 5: Adopting a Flexible Timekeeping Requirement

    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) to adopt the timekeeping standards applicable to recipients in part 1635. LSC proposed this requirement to provide a consistent standard for recipients and subrecipients alike. LSC specifically sought comment on this proposal because LSC understood that some subrecipients, particularly smaller legal services programs, may have difficulty complying with the requirement. NJP and NLADA both objected to LSC's proposal to require all subrecipients to comply with part 1635's timekeeping requirements. OIG supported the proposal.

    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.

    List of Subjects in 45 CFR Part 1627

    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:

    PART 1627—SUBGRANTS AND MEMBERSHIP FEES OR DUES 1. The authority citation is revised to read as follows: Authority:

    42 U.S.C. 2996g(e).

    2. Amend § 1627.2 as proposed to be amended at 80 FR 21692, April 20, 2015 by: a. Revising paragraph (b); b. Redesignating paragraphs (c) and (d) as paragraphs (d) and (e), respectively, and revising them; c. Adding a new paragraph (c); and d. Designating the undesignated paragraph captioned “Subrecipient” as paragraph (f).

    The revisions and additions read as follows:

    § 1627.2 Definitions.

    (b) Procurement contract means an agreement between a recipient and a third party under which the recipient purchases property or services for the benefit of the recipient that does not qualify as a subgrant as defined in paragraph (d)(1) of this section.

    (c) Property means real property or personal property.

    (d) Recipient as used in this part means any recipient as defined in section 1002(6) of the Act and any grantee or contractor receiving funds from LSC under section 1006(a)(1)(B) of the Act.

    (e)(1) Subgrant means an award of LSC funds or property or services purchased in whole or in part with LSC funds, from a recipient to a subrecipient for the subrecipient to carry out part of the recipient's legal assistance activities under the LSC grant, that has the characteristics set forth in § 1627.3(b).

    (2) Subgrant includes judicare arrangements and contracts with private attorneys for the direct delivery of legal assistance under 45 CFR part 1614 only when the cost of the arrangement or contract exceeds $60,000.

    3. Amend § 1627.3 as proposed to be amended at 80 FR 21692, April 20, 2015 by revising paragraphs (a) and (b)(2), (3), and (5) to read as follows:
    § 1627.3 Characteristics of subgrants.

    (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 may not be present in all cases, and the recipient must use judgment in classifying each agreement as a subgrant or a procurement contract. The recipient must make case-by-case determinations whether each agreement that it makes with another entity constitutes a subgrant or a procurement contract.

    (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.

    4. Amend § 1627.4 as proposed to be amended at 80 FR 21692, April 20, 2015 by: a. Redesignating paragraphs (a) through (e) as paragraphs (b) through (f), respectively; b. Adding a new paragraph (a); c. Revising the introductory text of newly redesignated paragraph (b); b. Redesignating the newly redesignated paragraph (b)(5) as (b)(5)(i) and adding paragraph (b)(5)(ii); c. Revising the newly redesignated paragraph (d)(2); and d. Adding paragraph (g).

    The revisions and additions read as follows:

    § 1627.4 Requirements for all subgrants.

    (a) Threshold. (1) A recipient must obtain LSC's written approval prior to making a subgrant when the cost of the award is $15,000 or greater.

    (2) Valuation of in-kind subgrants. (i) If either the actual cost to the recipient of the transferred property or service or the fair market value of the transferred property or service exceeds $15,000, the recipient must seek written approval from LSC prior to making a subgrant. If the asset transferred involves leased space, the fair market value of the office space must be determined by an independent property appraisal.

    (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) Corporation approval of subgrants. Recipients must submit all applications for subgrants exceeding the $15,000 threshold to LSC in writing for prior written approval. LSC will publish notice of the requirements concerning the format and contents of the application annually in the Federal Register and on LSC's Web site.

    (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) Accounting for in-kind subgrants. (1) The value of property or services provided by a recipient to a subrecipient through a subgrant is subject to the audit and financial requirements of the Audit Guide for Recipients and Auditors and the Accounting Guide for LSC Recipients. Subgrants involving in-kind exchanges of property or services may be separately disclosed and accounted for, and reported upon in the audited financial statements of a recipient. The relationship between the recipient and subrecipient will determine the proper method of financial reporting following generally accepted accounting principles.

    (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.

    5. Amend § 1627.5 as proposed to be amended at 80 FR 21692, April 20, 2015 by revising paragraphs (c) and (d) to read as follows:
    § 1627.5 Applicability of restrictions, timekeeping, and recipient priorities; private attorney involvement subgrants.

    (c) Timekeeping. A recipient must account for how its subgrantees spend LSC funds. Accurate and contemporaneous time records must identify for each attorney and paralegal:

    (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) PAI subgrant. (1) The prohibitions and requirements set forth in 45 CFR part 1610 apply only to the subgranted funds or property or services acquired in whole or in part with LSC funds when the subrecipient is a bar association, pro bono program, private attorney or law firm, or other entity that receives a subgrant for the sole purpose of funding private attorney involvement activities (PAI) pursuant to 45 CFR part 1614.

    (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.

    6. Amend § 1627.6 as proposed to be amended at 80 FR 21692, April 20, 2015 by revising paragraph (b) to read as follows:
    § 1627.6 Subgrants to other recipients.

    (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.

    Dated: April 19, 2016. Stefanie K. Davis, Assistant General Counsel.
    [FR Doc. 2016-09384 Filed 4-25-16; 8:45 am] BILLING CODE 7050-01-P
    DEPARTMENT OF ENERGY 48 CFR Part 970 RIN 1991-AC03 Acquisition Regulation: Nondisplacement of Qualified Workers Under Service Contracts and Other Changes to the Contractor Purchasing System Clause AGENCY:

    Department of Energy.

    ACTION:

    Notice of proposed rulemaking and opportunity for comment.

    SUMMARY:

    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.

    DATES:

    Written comments on the proposed rulemaking must be received on or before close of business May 26, 2016.

    ADDRESSES:

    You may submit comments, identified by DEAR: Nondisplacement of Qualified Workers and RIN 1991-AC03, by any of the following methods:

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

    Email to: [email protected] Include DEAR: Nondisplacement of Qualified Workers and RIN 1991-AC03 in the subject line of the message.

    Mail to: U.S. Department of Energy, Office of Acquisition Management, MA-611, 1000 Independence Avenue SW., Washington, DC 20585. Comments by email are encouraged.

    FOR FURTHER INFORMATION CONTACT:

    Lawrence Butler at (202) 287-1945 or by email [email protected]

    SUPPLEMENTARY INFORMATION:

    I. Background II. Section-by-Section Analysis III. Procedural Requirements A. Review Under Executive Orders 12866 and 13563. B. Review Under Executive Order 12988. C. Review Under the Regulatory Flexibility Act. D. Review Under the Paperwork Reduction Act. E. Review Under the National Environmental Policy Act. F. Review Under Executive Order 13132. G. Review Under the Unfunded Mandates Reform Act of 1995. H. Review Under the Treasury and General Government Appropriations Act, 1999. I. Review Under Executive Order 13211. J. Review Under the Treasury and General Government Appropriations Act, 2001. K. Approval by the Office of the Secretary of Energy. I. Background

    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, e.g., contracts for routine, recurring maintenance, are subject to various labor laws implemented by FAR part 22.

    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.

    II. Section-by-Section Analysis

    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).

    III. Procedural Requirements A. Review Under Executive Orders 12866 and 13563

    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 regulation only upon a reasoned determination that its benefits justify its costs and, in choosing among alternative regulatory approaches, those approaches maximize net benefits.

    B. Review Under Executive Order 12988

    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.

    C. Review Under the Regulatory Flexibility Act

    This proposed rule has been reviewed under the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., which requires preparation of an initial regulatory flexibility analysis for any rule that must be proposed for public comment and which is likely to have a significant economic impact on a substantial number of small entities. As required by Executive Order 13272, “Proper Consideration of Small Entities in Agency Rulemaking,” (67 FR 53461, August 16, 2002), DOE published procedures and policies on February 19, 2003, to ensure that the potential impacts of its rules on small entities are properly considered during the rulemaking process (68 FR 7990). DOE has made its procedures and policies available on the Office of General Counsel's Web site at http://www.gc.doe.gov.

    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.

    D. Review Under the Paperwork Reduction Act

    This proposed rule does not impose a collection of information requirement subject to the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. Existing burdens associated with the collection of certain contractor data under the DEAR have been cleared under OMB control number 1910-4100.

    E. Review Under the National Environmental Policy Act

    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 et seq.). Specifically, this proposed rule is categorically excluded from NEPA review because the amendments to the DEAR are strictly procedural (categorical exclusion A6). Therefore, this proposed rule does not require an environmental impact statement or environmental assessment pursuant to NEPA.

    F. Review Under Executive Order 13132

    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.

    G. Review Under the Unfunded Mandates Reform Act of 1995

    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.

    H. Review Under the Treasury and General Government Appropriations Act, 1999

    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.

    I. Review Under Executive Order 13211

    Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use, (66 FR 28355, May 22, 2001) requires Federal agencies to prepare and submit to Office of Information and Regulatory Affairs (OIRA) of the Office of Management and Budget, a Statement of Energy Effects for any proposed significant energy action. A “significant energy action” is defined as any action by an agency that promulgates or is expected to lead to promulgation of a final rule, and that: (1) Is a significant regulatory action under Executive Order 12866, or any successor order; (2) is likely to have a significant adverse effect on the supply, distribution, or use of energy, or (3) is designated by the Administrator of OIRA as a significant energy action. For any proposed significant energy action, the agency must give a detailed statement of any adverse effects on energy supply, distribution, or use should the proposal be implemented, and of reasonable alternatives to the action and their expected benefits on energy supply, distribution, and use. This proposed rule is not a significant energy action. Accordingly, DOE has not prepared a Statement of Energy Effects.

    J. Review Under the Treasury and General Government Appropriations Act, 2001

    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.

    K. Approval by the Office of the Secretary of Energy

    Issuance of this proposed rule has been approved by the Office of the Secretary of Energy.

    List of Subjects in 48 CFR Part 970

    Government procurement.

    Issued in Washington, DC on April 19, 2016. Berta Schreiber, Acting Senior Procurement Executive, Office of Acquisition Management, Department of Energy. Joseph Waddell, Senior Procurement Executive and Deputy Associate Administrator, National Nuclear Security Administration, Office of Acquisition Management.

    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.

    PART 970—DOE MANAGEMENT AND OPERATING CONTRACTS 1. The authority citation for part 970 continues to read as follows: Authority:

    42 U.S.C. 2201; 2282a; 2282b; 2282c; 42 U.S.C. 7101 et seq.; 50 U.S.C. 2401 et seq.

    2. Add section 970.2212 to subpart 970.22 to read as follows:
    970.2212 Nondisplacement of qualified workers.

    48 CFR subpart 22.12 is applicable to subcontracts under the Department's management and operating contracts (see 970.5244-1(x)).

    3. Section 970.5244-1 is amended by: a. Revising the clause date; b. Revising the first sentence of paragraph (f)(1); c. Revising paragraphs (f)(2) and (3) and (g); and d. Adding paragraph (x)(7).

    The revisions and additions read as follows:

    970.5244-1 Contractor purchasing system. Contractor Purchasing System (XXX 20xx)

    (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) Buy American. The Contractor shall comply with the provisions of the Buy American Act as reflected in 48 CFR 52.225-1 and 48 CFR 52.225-9. The Contractor shall forward determinations of non-availability of individual items to the DOE Contracting Officer for approval. Items in excess of $500,000 require the prior concurrence of the Head of Contracting Activity. If the Contractor has an approved purchasing system, the Head of the Contracting Activity may authorize the Contractor to make determinations of non-availability for individual items valued at $500,000 or less.

    (x) * * *

    (7) Nondisplacement of Qualified Workers clause prescribed in 48 CFR 22.1207.

    [FR Doc. 2016-09688 Filed 4-25-16; 8:45 am] BILLING CODE 6450-01-P
    81 80 Tuesday, April 26, 2016 Notices DEPARTMENT OF AGRICULTURE Agricultural Marketing Service [Doc. No. AMS-LPS-16-0016] Request for Extension and Revision of a Currently Approved Information Collection for the Federal Seed Act Program AGENCY:

    Agricultural Marketing Service, USDA.

    ACTION:

    Notice and request for comments.

    SUMMARY:

    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.

    DATES:

    Comments must be received by June 27, 2016.

    ADDRESSES:

    Comments should either be submitted electronically at www.regulations.gov, or to Ernest L. Allen, Director, Seed Regulatory and Testing Division (SRTD), Livestock, Poultry, and Seed Program, AMS, USDA, 801 Summit Crossing Place, Suite C, Gastonia, NC 28054-2193; or by facsimile to (704) 852-4109. All comments should reference docket number AMS-LPS-16-0016 and note the date and the page number of this issue of the Federal Register. All comments received will be posted without change, including any personal information provided, online at http://www.regulations.gov and will be made available for public inspection at the above physical address during regular business hours.

    FOR FUTHER INFORMATION CONTACT:

    Ernest L. Allen, SRTD, Livestock, Poultry, and Seed Program, AMS, USDA; Telephone: (704) 810-8871, or Email: [email protected].

    SUPPLEMENTARY INFORMATION:

    Title: Federal Seed Act Program.

    OMB Number: 0581-0026.

    Expiration Date of Approval: August 31, 2016.

    Type of Request: Request for extension of and revision of currently approved information collection.

    Abstract: This information collection and these recordkeeping requirements are necessary to conduct the Federal Seed Act (FSA) (7 U.S.C. 1551 et seq.) program with respect to certain testing, labeling, and recordkeeping requirements for agricultural and vegetable seeds in interstate commerce. Regulations under the FSA are contained in 7 CFR part 201.

    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.

    Seed Testing, Labeling, and Recordkeeping

    Estimate of Burden: Public reporting burden for this collection of information is estimated to average 2.69 hours per response.

    Respondents: Interstate shippers and labelers of seed.

    Estimated Number of Respondents: 3,157.

    Estimated Number of Responses per Respondent: 3.25.

    Estimated Total Annual Responses: 10,260.

    Estimated Total Annual Burden on Respondents: 27,600 hours.

    Eligibility Requirements for Certification of New Varieties and Recordkeeping

    Estimate of Burden: Public reporting burden for this collection of information (eligibility for certification of new varieties) is estimated to average 2.42 hours per response.

    Respondents: Entities seeking to enter new varieties into State seed certification programs.

    Estimated Number of Respondents: 88.

    Estimated Number of Responses per Respondent: 9.

    Estimated Total Annual Responses: 792.

    Estimated Total Annual Burden on Respondents: 1,917 hours.

    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.

    Dated: April 20, 2016. Elanor Starmer, Administrator, Agricultural Marketing Service.
    [FR Doc. 2016-09607 Filed 4-25-16; 8:45 am] BILLING CODE 3410-02-P
    DEPARTMENT OF AGRICULTURE Agricultural Marketing Service [Doc. No. AMS-FV-16-0025, SC-16-333] 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 AGENCY:

    Agricultural Marketing Service, USDA.

    ACTION:

    Notice of renewal and merge request.

    SUMMARY:

    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.

    DATES:

    Comments on this notice must be received by June 27, 2016 to be considered.

    ADDRESSES:

    Interested persons are invited to submit comments concerning this notice. Comments should be submitted online at www.regulations.gov or sent to ToiAyna Thompson, U.S. Department of Agriculture (USDA), 1400 Independence Avenue SW., Stop 0247, Room 1543-S Washington, DC 20250-0250, or by facsimile to (202) 690-3824. All comments should reference the document number, and the date and page number of this issue of the Federal Register. All comments received will be posted without change, including any personal information provided, online at http://www.regulations.gov and will be made available for public inspection at the above physical address during regular business hours.

    FOR FURTHER INFORMATION CONTACT:

    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 [email protected]; or, Internet: http://www.regulations.gov.

    SUPPLEMENTARY INFORMATION:

    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.

    Title: Regulations Governing Inspection Certification of Fresh & Processed Fruits, Vegetables, & Other Products 7 CFR part 51 and 52.

    OMB Number: 0581-0125.

    Expiration Date of Approval: 3 years from approval.

    Type of Request: Extension and Revision of a currently approved information collection.

    Abstract: The Agricultural Marketing Act of 1946, (7 U.S.C. 1621-1627) as amended authorizes the Agricultural Marketing Service, Specialty Crops Inspection Division to provide inspection and certification of the quality and condition of agricultural products. The Specialty Crops Inspection Division provides a nationwide inspection, grading, and auditing service for fresh and processed fruits, vegetables and other products for shippers, importers, processors, sellers, buyers, and other financially interested parties on a user-fee basis. The use of services is voluntary and is made available only upon request or when specified by a special program or contract. Information is needed to carry out the inspection, grading, or auditing services. Such information includes; the name and location of the person or company requesting services; the type of inspection being requested; and information that will identify the product or type and scope of audit requested. Upon approval, AMS will request discontinuations of 0581-0292 from OMB. With this submission of renewal and merging of two collections that have been previously approved, the Division will be better able to efficiently manage the collection and prevent duplication of burden.

    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.

    OMB 0581-0125 Regulations Governing Inspection, Certification of Fresh and Processed Fruits, Vegetables and Other Products 7 CFR Part 51 and 52

    Estimate of Burden: Public reporting burden for this collection is estimated to average 0.15 hours per response.

    Respondents: Business or other for-profit, nonprofit organization, farms or Federal, state, local or Tribal governments.

    Estimated Number of Respondents: 10,108.

    Estimated Total Annual Responses: 144,992.

    Estimated Number of Responses per Respondent: 14.34.

    Estimated Total Annual Burden on Respondents: 21,127.

    OMB 0581-0292 Specialty Crops Inspection Division Order Forms

    Estimate of Burden: Public reporting burden for this collection of information is estimated to average .08 hours per response.

    Respondents: Federal and State.

    Estimated Number of Respondents: 49,892.

    Estimated Total Annual Responses: 49,892.

    Estimated Number of Responses per Respondent: 1.

    Estimated Total Annual Burden on Respondents: 4,156.

    OMB 0581-0292 Specialty Crops Inspection Division Order Forms Merged into OMB 0581-0125 Regulations Governing Inspection Certification of Fresh & Processed Fruits, Vegetables & Other Products 7 CFR Part 51 and 52

    Estimated Total Annual Responses: 194,176.

    Estimated Total Annual Burden on Respondents: 25,283.

    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 use; (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. Comments may be sent to 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; telephone: (202) 720-0867; FAX: (202) 690-3824; or Internet: http://www.regulations.gov.

    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.

    Dated: April 20, 2016. Elanor Starmer, Administrator.
    [FR Doc. 2016-09619 Filed 4-25-16; 8:45 am] BILLING CODE 3410-02-P
    DEPARTMENT OF AGRICULTURE Agricultural Marketing Service [Document No. AMS-TM-16-0030] 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 AGENCY:

    Agricultural Marketing Service, USDA.

    ACTION:

    Notice and request for comments.

    SUMMARY:

    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.

    DATES:

    Comments on this notice must be received by June 27, 2016 to be assured of consideration.

    ADDRESSES:

    AMS Transportation and Marketing Program, 1400 Independence Avenue SW., Stop 0264, Washington, DC 20250-0264.

    FOR FURTHER INFORMATION CONTACT:

    Trista Etzig, Grants Division Director; Telephone: (202) 720-8356; Email: [email protected]

    SUPPLEMENTARY INFORMATION:

    Title: AMS Grant Programs.

    OMB Number: 0581-0240.

    Expiration Date of Approval: 9/30/2016.

    Type of Request: Extension, revision, and consolidation of currently approved information collection.

    Abstract: AMS grant programs (Farmers' Market and Local Food Promotion Program (FMLFPP), Specialty Crop Block Grant Program (SCBGP), Specialty Crop Multi-State Program (SCMP), and Federal-State Marketing Improvement Program (FSMIP)) are authorized pursuant to the Agricultural Marketing Act of 1946 (AMA) (7 U.S.C. 1621, et seq.) and the Farmer-to-Consumer Direct Marketing Act of 1976 (FCDMA) (7 U.S.C. 3001) and are implemented through the Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards (Super Circular) (2 CFR 200). Recently, AMS consolidated the management of its grant programs into one Grants Division to streamline and standardize processes and procedures for the programs, which includes the need to consolidate the information collection requirements for each grant program.

    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 effectuate the purposes of title II of the Agricultural Marketing Act of 1946. FSMIP provides matching funds on a competitive basis to assist eligible entities in exploring new market opportunities for U.S. food and agricultural products and to encourage research and innovation aimed at improving the efficiency and performance of the marketing system. AMS has been allocated approximately $1 million in fiscal years 2013, 2014, and 2015 for FSMIP; and it is anticipated that funding will remain at or near this level for fiscal years 2016 and 2017.

    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:

    Combined Burden for AMS Grant Programs

    Estimate of Burden: 2.59.

    Respondents: Agricultural Cooperatives, Agriculture Business Entities; Community Supported Agriculture Networks or Associations; Producer Networks or Associations; Local and Tribal Governments; Nonprofit Corporations; Public Benefit Corporations; Economic Development Corporations; Regional Farmers' Market Authorities; State departments of agriculture; State agricultural experiment stations; and other appropriate State Agencies.

    Estimated Number of Respondents: 1,866.

    Estimated Total Annual Responses: 20,230.

    Estimated Number of Responses per Respondent: 10.84.

    Estimated Total Annual Burden on Respondents: 52,413.11.

    0581-0235: Farmers' Market Promotion Program

    Estimate of Burden: 2.73.

    Respondents: Agricultural Cooperatives, Producer Networks, or Producer Associations; Local Governments; Nonprofit Corporations; Public Benefit Corporations; Economic Development Corporations; Regional Farmers' Market Authorities; and Tribal Governments.

    Estimated Number of Respondents: 750.

    Estimated Total Annual Responses: 7,470.

    Estimated Number of Responses per Respondent: 9.96.

    Estimated Total Annual Burden on Respondents: 20,391.27.

    0581-0240: Federal-State Market Improvement Program

    Estimate of Burden: 2.29.

    Respondents: State departments of agriculture; State agricultural experiment stations; and other appropriate State Agencies.

    Estimated Number of Respondents: 70.

    Estimated Total Annual Responses: 1,018.

    Estimated Number of Responses per Respondent: 14.54.

    Estimated Total Annual on Respondents: 2,328.01.

    0581-0248: Specialty Crop Block Grant Program-Farm Bill

    Estimate of Burden: 3.30.

    Respondents: State departments of agriculture.

    Estimated Number of Respondents: 56.

    Estimated Total Annual Responses: 616.

    Estimated Number of Responses per Respondent: 11.

    Estimated Total Annual Burden on Respondents: 2,030.

    Specialty Crop Multi-State Program-New Segment of SCBGP

    Estimate of Burden: 2.24.

    Respondents: State departments of agriculture.

    Estimated Number of Respondents: 240.

    Estimated Total Annual Responses: 2,906.

    Estimated Number of Responses per Respondent: 12.11.

    Estimated Total Annual Burden on Respondents: 6,522.56.

    0581-0287: Local Food Promotion Program

    Estimate of Burden: 2.57.

    Respondents: Agricultural Cooperatives, Agriculture Business Entities; Community Supported Agriculture Networks or Associations; Producer Networks or Associations; Local and Tribal Governments; Nonprofit Corporations; Public Benefit Corporations; Economic Development Corporations; and Regional Farmers' Market Authorities.

    Estimated Number of Respondents: 750.

    Estimated Total Annual Responses: 8,220.

    Estimated Number of Responses per Respondent: 10.96.

    Estimated Total Annual Burden on Respondents: 21,141.27.

    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.

    Dated: April 20, 2016. Elanor Starmer, Administrator, Agricultural Marketing Service.
    [FR Doc. 2016-09612 Filed 4-25-16; 8:45 am] BILLING CODE 3410-02-P
    DEPARTMENT OF AGRICULTURE Agricultural Marketing Service [Doc. No. AMS-LPS-16-0023] Request for an Extension and Revision of a Currently Approved Information Collection for the Seed Service Testing Program AGENCY:

    Agricultural Marketing Service, USDA.

    ACTION:

    Notice and request for comments.

    SUMMARY:

    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.

    DATES:

    Comments received by June 27, 2016.

    ADDRESSES:

    Comments should be submitted electronically at http://www.regulations.gov or to Ernest L. Allen, Director, Seed Regulatory and Testing Division (SRTD), Livestock, Poultry, and Seed Program, AMS, USDA, 801 Summit Crossing Place, Suite C, Gastonia, NC 28054-2193, or by facsimile to (704) 852-4109. All comments should reference docket number AMS-LPS-16-0023 and note the date and page number of this issue in the Federal Register. All comments received will be posted without change, including any personal information provided, online at http://www.regulations.gov and will be made available for public inspection at the above physical address during regular business hours.

    FOR FURTHER INFORMATION CONTACT:

    Ernest L. Allen, SRTD, Livestock, Poultry, and Seed Program, AMS, USDA; Telephone: (704) 810-8871, or Email: [email protected]

    SUPPLEMENTARY INFORMATION:

    Title: Seed Service Testing Program.

    OMB Number: 0581-0140.

    Expiration Date of Approval: August 31, 2016.

    Type of Request: Extension and revision of a currently approved information collection.

    Abstract: This information collection is necessary to conduct voluntary seed testing on a fee-for-service basis. The Agricultural Marketing Act of 1946, as amended, 7 U.S.C. 1621 et seq., authorizes the Secretary of Agriculture to inspect and certify the quality of agricultural products and collect such fees as are reasonable to cover the cost of service rendered. Regulations for inspection and certification of quality of agricultural and vegetable seeds are contained in 7 CFR part 75.

    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.

    Estimate of Burden: Public reporting burden for this collection of information is estimated to average 0.25 hours per response.

    Respondents: Applicants for seed testing service.

    Estimated Number of Respondents: 55.

    Estimated Number of Responses per Respondent: 22.92.

    Estimated Total Annual Burden on Respondents: 315.25 hours.

    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.

    Dated: April 20, 2016. Elanor Starmer, Administrator, Agricultural Marketing Service.
    [FR Doc. 2016-09617 Filed 4-25-16; 8:45 am] BILLING CODE 3410-02-P
    DEPARTMENT OF AGRICULTURE Agricultural Research Service Submission for OMB Review; Comment Request April 21, 2016.

    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: [email protected] or fax (202) 395-5806 and to Departmental Clearance Office, USDA, OCIO, Mail Stop 7602, Washington, DC 20250-7602. Copies of the submission(s) may be obtained by calling (202) 720-8958.

    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.

    Agricultural Research Service

    Title: Peer Review Related Forms for the Office of Scientific Quality Review.

    OMB Control Number: 0518-0028.

    Summary of Collection: The Office of Scientific Quality Review (OSQR) oversees peer review of Agricultural Research Service (ARS) research plans in response to Congressional mandate in the Agricultural Research Extension, and Education Reform Act of 1998 (Pub. L. 105-185, Section 103d). The ARS peer-review panels are comprised of scientists who review current scientific research projects and who have expert knowledge in the fields being reviewed.

    Need and Use of the Information: ARS will collect the information using the following forms:

    ARS-199A, Ad Hoc Peer Review of ARES Research Project ARS-200PA, Confidentiality Agreement ARS-202P, Chair & Panelist Information Form ARS-203PA, Suggested Peer Reviewer Form ARS-209P, OSQR Expense Report ARS-211P, Request for Honorarium ARS-223P Panel Recommendation on ARS Research Project Plan ARS-225P, Panelist Peer Review of ARS Research Project ARS-227P, Action Class Judgement ARS-231 Reviewer Comment Form

    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).

    Description of Respondents: Individuals or households.

    Number of Respondents: 230.

    Frequency of Responses: Reporting: Quarterly; Weekly; Annually.

    Total Burden Hours: 2,708.

    Ruth Brown, Departmental Information Collection Clearance Officer.
    [FR Doc. 2016-09747 Filed 4-25-16; 8:45 am] BILLING CODE 3410-03-P
    DEPARTMENT OF AGRICULTURE Animal and Plant Health Inspection Service Submission for OMB Review; Comment Request April 21, 2016.

    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: [email protected] or fax (202) 395-5806 and to Departmental Clearance Office, USDA, OCIO, Mail Stop 7602, Washington, DC 20250-7602. Copies of the submission(s) may be obtained by calling (202) 720-8958.

    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.

    Animal and Plant Health Inspection Service

    Title: Importation of Wooden Handicrafts from China.

    Omb Control Number: 0579-0357.

    Summary of Collection: Under the Plant Protection Act (7 U.S.C. 7701 et seq.), the Secretary of Agriculture is authorized to carry out operations or measures to detect, eradicate, suppress, control, prevent, or retard the spread of plant pests new to the United States or not known to be widely distributed throughout the United States. The regulations in “Subpart-Logs, Lumber, and Other Unmanufactured Wood Articles” (7 CFR 319.40-1 through 319.40-11, referred to as the regulations) govern the importation of various logs, lumber, and other unmanufactured wood products in the United States. APHIS' regulations provide for the importation of wooden handicrafts from China under certain conditions. Trade in these handicrafts has resumed while continuing to protect the United States against the introduction of plant pests.

    Need and Use of the Information: APHIS uses the following information activities to allow for trade in Chinese wooden handicrafts while continuing to protect the United States: Merchandise tags, a fumigation certification, and an application for permit to import timber or timber products. Failure to collect this information would cause foreign countries to refuse any shipments from the United States that contained wooden handcrafts, a development that could cause a significant disruption in trade with foreign countries and result in serious economic consequences not only to U.S. exporters, but to many U.S. industries that export products to foreign countries.

    Description of Respondents: Business or other for-profit.

    Number of Respondents: 361.

    Frequency of Responses: Reporting: On occasion.

    Total Burden Hours: 5,271.

    Ruth Brown, Departmental Information Collection Clearance Officer.
    [FR Doc. 2016-09743 Filed 4-25-16; 8:45 am] BILLING CODE 3410-34-P
    DEPARTMENT OF AGRICULTURE Food and Nutrition Service Submission for OMB Review; Comment Request April 21, 2016.

    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), [email protected] or fax (202) 395-5806 and to Departmental Clearance Office, USDA, OCIO, Mail Stop 7602, Washington, DC 20250-7602. Copies of the submission(s) may be obtained by calling (202) 720-8958.

    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.

    Food and Nutrition Service

    Title: 7 CFR part 245, Determining Eligibility for Free and Reduced Price Meals and Free Milk in Schools.

    OMB Control Number: 0584-0026.

    Summary of Collection: The Richard B. Russell National School Lunch Act (NSLA), as amended, authorizes the National School Lunch Program (NSLP). Section 9, Paragraph 9(b) of the NSLA provides that the income guidelines for determining eligibility for free school meals must be 130 percent, and reduced price school meals must be 185 percent, of the applicable family size income levels contained in the non-farm income poverty guidelines prescribed by the Office of Management and Budget, as adjusted annually. The Code of Federal Regulations (CFR), Title 7 CFR part 245, Determining Eligibility for Free and Reduced Price Meals and Free Milk in Schools, sets forth policies and procedures for implementing these provisions. These federal regulations require schools operating the NSLP to determine children's eligibility for free and reduced-price meals on the basis of each child's household income and size, and to establish operating procedures that will prevent physical segregation, or other discrimination against, or overt identification of children unable to pay the full price for meals or milk. Section 104 of the Child Nutrition and WIC Reauthorization Act of 2004 added section 9(b)(4) to the NSLA (42 U.S.C. 1758(b)(4)) to require school food authorities to directly certify, without further application, any child who is a member of a household receiving Supplemental Nutrition Assistance Program (SNAP) benefits.

    Need and Use of the Information: FNS will collect information to determine eligibility of children for free and reduced price meals and for free milk and to assure that there is no physical segregation of, or other discrimination against, or overt identification of children unable to pay the full price for meals or milk.

    Description of Respondents: Individuals or households; State, Local, or Tribal Government.

    Number of Respondents: 5,409,878.

    Frequency of Responses: Recordkeeping; Reporting: Annually; Other (3 per year).

    Total Burden Hours: 945,743.

    Food Nutrition Service

    Title: Regional Office Administered Program (ROAP) Child Nutrition Payment Center (for the National School Lunch, School Breakfast, and Special Milk Programs).

    OMB Control Number: 0584-0284.

    Summary of Collection: Section 5 of the Child Nutrition Act of 1966 [U.S.C. 1774] specifies that if the Secretary of Agriculture is administering (in whole or in part) any program authorized under this Act, the State in which the Secretary is administering the program may, upon request to the Secretary, assume administration of that program. If a State educational agency is not permitted by law to disburse the funds paid to it under this Act to any of the nonpublic schools in the State, the Secretary shall disburse the funds directly to such schools within the State for the same purposes and subject to the same conditions as are authorized or required with respect to the disbursements to public schools within the State by the State educational agency. In States where the FNS Regional Office administers the National School Lunch, School Breakfast, and Special Milk Programs as a Regional Office Administered Program (ROAP), school food authorities (SFAs) or local institutions must submit the monthly claim for reimbursement data to the Regional Office for processing to receive reimbursement.

    Need and Use of the Information: The information is collected electronically from school food authorities that participate in the National School Lunch, School Breakfast, and Special Milk Programs that are administered directly by the associated USDA FNS Regional Office as a ROAP. The ROAP system is used to collect application and meal count information which is used to process claims for reimbursement. The application information is collected annually, while the meal count information is collected monthly.

    Description of Respondents: State, Local or Tribal Government.

    Number of Respondents: 60.

    Frequency of Responses: Reporting: Annually; Monthly.

    Total Burden Hours: 330.

    Ruth Brown, Departmental Information Collection Clearance Officer.
    [FR Doc. 2016-09746 Filed 4-25-16; 8:45 am] BILLING CODE 3410-30-P
    DEPARTMENT OF AGRICULTURE Forest Service Forest Resource Coordinating Committee AGENCY:

    Forest Service, USDA.

    ACTION:

    Notice of meeting.

    SUMMARY:

    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 http://www.fs.fed.us/spf/coop/frcc/.

    DATES:

    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 FOR FURTHER INFORMATION CONTACT.

    ADDRESSES:

    The meeting will be held via teleconference. For anyone who would like to attend the teleconference, please visit the Web site listed under FOR FURTHER INFORMATION CONTACT.

    Written comments may be submitted as described under SUPPLEMENTARY INFORMATION. All comments, including names and addresses when provided, are placed in the record and are available for public inspection and copying. The public may inspect comments placed on the Committee's Web site listed above.

    FOR FURTHER INFORMATION CONTACT:

    Andrea Bedell-Loucks, Designated Federal Officer, at 202-205-1190 or via email at [email protected]

    Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8:00 a.m. and 8:00 p.m., Eastern Standard Time, Monday through Friday.

    SUPPLEMENTARY INFORMATION:

    The purpose of the meeting is to:

    1. 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 [email protected] A summary of the meeting will be posted on the Web site listed above within 21 days after the meeting.

    Meeting Accommodations: If you are a person requiring reasonable accommodation, please make requests in advance for sign language interpreting, assistive listening devices, or other reasonable accommodation. For access to the facility or proceedings, please contact the person listed in the section titled For Further Information Contact. All reasonable accommodation requests are managed on a case by case basis.

    Dated: April 15, 2016. Patricia Hirami, Associate Deputy Chief, State and Private Forestry.
    [FR Doc. 2016-09669 Filed 4-25-16; 8:45 am] BILLING CODE 3411-15-P
    DEPARTMENT OF AGRICULTURE Forest Service Information Collection; Secure Rural Schools Act AGENCY:

    Forest Service, USDA.

    ACTION:

    Notice; request for comment.

    SUMMARY:

    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.

    DATES:

    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.

    ADDRESSES:

    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: http://www.fs.usda.gov/main/pts/countyfunds/certification.

    FOR FURTHER INFORMATION CONTACT:

    David Bergendorf, National Secure Rural Schools Program Coordinator, by phone at 505-563-7117 or via email at [email protected]

    Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8:00 a.m. and 8:00 p.m., Eastern Standard Time, Monday through Friday.

    SUPPLEMENTARY INFORMATION:

    Title: Secure Rural Schools Act.

    OMB Number: 0596-0220.

    Expiration Date of Approval: June 30, 2016.

    Type of Request: Extension.

    Abstract: The Secure Rural Schools and Community Self-Determination Act of 2000 (the Act) (16 U.S.C. 7101 et seq.), as reauthorized in Public Law 110-343 and Public Law 112-141, requires the appropriate official of a county that receives funds under Title III of the Act to submit to the appropriate Secretary an annual certification that the funds expended have been used as authorized under section 302(a) of the Act.

    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 (http://www.gao.gov/products/GAO-12-775). A county's procedure for and documentation of its obligation of title III funds should be consistent with its procedures to obligate funds from other Federal sources.

    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 information collection because the Bureau of Land Management administers Federal lands in western Oregon covered by the Act. The information will be reviewed by the appropriate Secretary, or designee, to verify that participating counties have certified that funds were expended as authorized in the Act and to identify amounts not obligated by September 30th of the previous year. The information also may be used by the Department of the Interior because it is relevant to its Payments in Lieu of Taxes (PILT) program.

    Estimate of Annual Burden per Respondent: The estimated time required for each respondent to collect, prepare and submit the information is 24 hours each year, including an estimated 20 hours for collection and four hours for preparation and submission.

    Type of Respondents: Respondents are county officials.

    Estimated Annual Number of Respondents: 344 county officials are expected to respond each year.

    Estimated Annual Number of Responses per Respondent: The Act requires only one response for each participating county for each year expenditures are made, except that sixteen counties in western Oregon will respond separately to the Department of the Interior and the Department of Agriculture.

    Estimated Total Annual Burden on Respondents: The estimated time required for all respondents (344 counties) to collect, prepare, and submit the information is 8,256 hours each year.

    Comment Is Invited

    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.

    Dated: April 14, 2016. Mary Wagner, Associate Chief of the Forest Service.
    [FR Doc. 2016-09670 Filed 4-25-16; 8:45 am] BILLING CODE 3411-15-P
    DEPARTMENT OF AGRICULTURE Rural Housing Service Section 538 Guaranteed Rural Rental Housing Program 2016 Industry Forums—Open Teleconference and/or Web Conference Meetings AGENCY:

    Rural Housing Service, USDA.

    ACTION:

    Notice.

    SUMMARY:

    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.

    DATES:

    See SUPPLEMENTARY INFORMATION section for dates.

    FOR FURTHER INFORMATION CONTACT:

    Monica Cole, Financial and Loan Analyst, at (202) 720-1251, fax: (844) 875-8075, or email: [email protected]

    SUPPLEMENTARY INFORMATION:

    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.

    Registration: Any member of the public wishing to register for the calls and obtain the call-in number, access code, web link and other information for any of the public teleconference and/or web conference meetings may contact Monica Cole, Financial and Loan Analyst, at (202) 720-1251, fax: (844) 875-8075, or email: [email protected] Those who request registration less than 15 calendar days prior to the date of a teleconference and/or web conference meetings may not receive notice of that teleconference and/or web conference meeting, but will receive notice of future teleconference and/or web conference meetings.

    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.

    Non-Discrimination Requirements

    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.”

    Dated: April 19, 2016. Tony Hernandez, Administrator, Rural Housing Service.
    [FR Doc. 2016-09642 Filed 4-25-16; 8:45 am] BILLING CODE 3410-XV-P
    DEPARTMENT OF COMMERCE Foreign-Trade Zones Board [B-21-2016] Foreign-Trade Zone (FTZ) 46G—Cincinnati, Ohio; Notification of Proposed Production Activity; Givaudan Flavors Corporation; (Flavor Products); Cincinnati, Ohio

    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 www.trade.gov/ftz.

    For further information, contact Kathleen Boyce at [email protected] or (202) 482-1346.

    Dated: April 20, 2016. Andrew McGilvray, Executive Secretary.
    [FR Doc. 2016-09706 Filed 4-25-16; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE Foreign-Trade Zones Board [S-49-2016] Foreign-Trade Zone 61—San Juan, Puerto Rico; Application for Subzone; Rooms to Go (PR), Inc.; Toa Baja, Puerto Rico

    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 www.trade.gov/ftz. For further information, contact Camille Evans at [email protected] or (202) 482-2350.

    Dated: April 20, 2016. Andrew McGilvray, Executive Secretary.
    [FR Doc. 2016-09703 Filed 4-25-16; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE Foreign-Trade Zones Board [B-22-2016] Foreign-Trade Zone 291—Cameron Parish, Louisiana; Application for Subzone; G2 LNG LLC; Cameron, Louisiana

    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., Washington, DC 20230-0002, and in the “Reading Room” section of the FTZ Board's Web site, which is accessible via www.trade.gov/ftz.

    For further information, contact Camille Evans at [email protected] or (202) 482-2350.

    Dated: April 20, 2016. Andrew McGilvray, Executive Secretary.
    [FR Doc. 2016-09704 Filed 4-25-16; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration [Application No. 84-26A12] Export Trade Certificate of Review ACTION:

    Notice of Issuance of an Amended Export Trade Certificate of Review to the Northwest Fruit Exporters of Washington (“NFE”), Application No. (84-26A12).

    SUMMARY:

    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.

    FOR FURTHER INFORMATION CONTACT:

    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 [email protected]

    SUPPLEMENTARY INFORMATION:

    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 Federal Register. Under Section 305(a) of the Act and 15 CFR 325.11(a), any person aggrieved by the Secretary's determination may, within 30 days of the date of this notice, bring an action in any appropriate district court of the United States to set aside the determination on the ground that the determination is erroneous.

    Description of Amended Certificate

    NFE's Export Trade Certificate of Review has been amended to:

    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)):

    Apple House Warehouse & Storage, Inc. Blue Bird, Inc. Blue Star Growers, Inc. Borton & Sons, Inc. Chelan Fruit Cooperative Congdon Packing Co. L.L.C. Conrad & Adams Fruit L.L.C. Crane & Crane, Inc. Diamond Fruit Growers Inc. Gold Digger Apples, Inc. Hansen Fruit & Cold Storage Co., Inc. Highland Fruit Growers, Inc. HoneyBear Growers, LLC Matson Fruit Company McDougall & Sons, Inc. Stadelman Fruit, L.L.C. Stemilt Growers, LLC Strand Apples, Inc. The Dalles Fruit Company, LLC Valley Fruit III L.L.C.

    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”:

    Duckwall Fruit Naumes, Inc. Peshastin Hi-Up Growers Underwood Fruit & Warehouse Co.

    5. Add the following new Members of the Certificate for Export Trade Activities and Methods of Operation relating to apples:

    Piepel Premium Fruit Packing LLC Ron LeFore, d/b/a Ron LeFore Apple Farms Western Traders LLC

    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.

    NFE's complete Membership covered by the amended Export Trade Certificate of Review is listed below:

    1. Allan Bros., Naches, WA 2. AltaFresh L.L.C. dba Chelan Fresh Marketing, Chelan, WA 3. Apple House Warehouse & Storage, Inc., Brewster, WA 4. Apple King, L.L.C., Yakima, WA 5. Auvil Fruit Co., Inc., Orondo, WA 6. Baker Produce, Inc., Kennewick, WA 7. Blue Bird, Inc., Peshastin, WA 8. Blue Star Growers, Inc., Cashmere, WA 9. Borton & Sons, Inc., Yakima, WA 10. Brewster Heights Packing & Orchards, LP, Brewster, WA 11. Broetje Orchards LLC, Prescott, WA 12. C.M. Holtzinger Fruit Co., Inc., Yakima, WA 13. Chelan Fruit Cooperative, Chelan, WA 14. Chiawana, Inc. dba Columbia Reach Pack, Yakima, WA 15. Columbia Fruit Packers, Inc., Wenatchee, WA 16. Columbia Fruit Packers/Airport Division, Yakima, WA 17. Columbia Marketing International Corp., Wenatchee, WA 18. Columbia Valley Fruit, L.L.C., Yakima, WA 19. Congdon Packing Co. L.L.C., Yakima, WA 20. Conrad & Adams Fruit L.L.C., Grandview, WA 21. Cowiche Growers, Inc., Cowiche, WA 22. CPC International Apple Company, Tieton, WA 23. Crane & Crane, Inc., Brewster, WA 24. Custom Apple Packers, Inc., Brewster, Quincy, and Wenatchee, WA 25. Diamond Fruit Growers, Odell, OR 26. Domex Superfresh Growers LLC, Yakima, WA 27. Douglas Fruit Company, Inc., Pasco, WA 28. Dovex Export Company, Wenatchee, WA 29. Duckwall Fruit, Odell, OR 30. E. Brown & Sons, Inc., Milton-Freewater, OR 31. Evans Fruit Co., Inc., Yakima, WA 32. E.W. Brandt & Sons, Inc., Parker, WA 33. Frosty Packing Co., LLC, Yakima, WA 34. G&G Orchards, Inc., Yakima, WA 35. Garrett Ranches Packing, Wilder, ID 36. Gilbert Orchards, Inc., Yakima, WA 37. Gold Digger Apples, Inc., Oroville, WA 38. Hansen Fruit & Cold Storage Co., Inc., Yakima, WA 39. Henggeler Packing Co., Inc., Fruitland, ID 40. Highland Fruit Growers, Inc., Yakima, WA 41. HoneyBear Growers, Inc., (Brewster, WA) 42. Honey Bear Tree Fruit Co., LLC, Wenatchee, WA 43. Hood River Cherry Company, Hood River, OR 44. Ice Lakes LLC, E. Wenatchee, WA 45. JackAss Mt. Ranch, Pasco, WA 46. Jenks Bros Cold Storage Packing (Royal City, WA) 47. Kershaw Fruit & Cold Storage, Co., Yakima, WA 48. L&M Companies, Selah, WA 49. Larson Fruit Co., Selah, WA 50. Manson Growers Cooperative, Manson, WA 51. Matson Fruit Company, Selah, WA 52. McDougall & Sons, Inc., Wenatchee, WA 53. Monson Fruit Co.—Apple operations only, Selah, WA 54. Morgan's of Washington dba Double Diamond Fruit, Quincy, WA 55. Naumes, Inc., Medford, OR 56. Northern Fruit Company, Inc., Wenatchee, WA 57. Olympic Fruit Co., Moxee, WA 58. Oneonta Trading Corp., Wenatchee, WA 59. Orchard View Farms, Inc., The Dalles, OR 60. Pacific Coast Cherry Packers, LLC, Yakima, WA 61. Peshastin Hi-Up Growers, Peshastin, WA 62. Phillippi Fruit Company, Inc., Wenatchee, WA 63. Piepel Premium Fruit Packing, LLC, East Wenatchee, WA 64. Polehn Farm's Inc., The Dalles, OR 65. Price Cold Storage & Packing Co., Inc., Yakima, WA 66. Pride Packing Company, Wapato, WA 67. Quincy Fresh Fruit Co., Quincy, WA 68. Rainier Fruit Company, Selah, WA 69. Roche Fruit, Ltd., Yakima, WA 70. Ron Lefore, d/b/a Ron Lefore Apple Farms, Milton-Freewater, OR 71. Sage Fruit Company, L.L.C., Yakima, WA 72. Smith & Nelson, Inc., Tonasket, WA 73. Stadelman Fruit, L.L.C., Milton-Freewater, OR, and Zillah, WA 74. Stemilt Growers, LLC, Wenatchee, WA 75. Strand Apples, Inc., Cowiche, WA 76. Symms Fruit Ranch, Inc., Caldwell, ID 77. The Dalles Fruit Company, LLC, Bingen, WA 78. Underwood Fruit & Warehouse Co., Dallesport, WA 79. Valicoff Fruit Co., Inc., Wapato, WA 80. Valley Fruit III L.L.C., Wapato, WA 81. Washington Cherry Growers, Peshastin, WA 82. Washington Fruit & Produce Co., Yakima, WA 83. Western Sweet Cherry Group, LLC, Yakima, WA 84. Western Traders, LLC, East Wenatchee, WA 85. Whitby Farms, Inc. dba: Farm Boy Fruit Snacks LLC, Mesa, WA 86. Yakima Fresh, Yakima, WA 87. Yakima Fruit & Cold Storage Co., Yakima, WA 88. Zirkle Fruit Company, Selah, WA Dated: April 19, 2016 Joseph E. Flynn, Director, Office of Trade and Economic Analysis.
    [FR Doc. 2016-09651 Filed 4-25-16; 8:45 am] BILLING CODE 3510-DR-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration New England Fishery Management Council; Public Meeting AGENCY:

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

    ACTION:

    Notice; public meeting.

    SUMMARY:

    The New England Fishery Management Council (Council) is scheduling a public meeting of its 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.

    DATES:

    This meeting will be held on Thursday, May 12, 2016 beginning at 9:30 a.m.

    ADDRESSES:

    The meeting will be held at the DoubleTree by Hilton, 50 Ferncroft Road, Danvers, MA 01923; phone: (978) 777-2500.

    Council address: New England Fishery Management Council, 50 Water Street, Mill 2, Newburyport, MA 01950.

    FOR FURTHER INFORMATION CONTACT:

    Thomas A. Nies, Executive Director, New England Fishery Management Council; telephone: (978) 465-0492.

    SUPPLEMENTARY INFORMATION:

    Agenda

    The 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.

    Special Accommodations

    This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Thomas A. Nies, Executive Director, at (978) 465-0492, at least 5 days prior to the meeting date.

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: April 21, 2016. Tracey L. Thompson, Acting Deputy Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2016-09654 Filed 4-25-16; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration Western Pacific Fishery Management Council; Public Meetings AGENCY:

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

    ACTION:

    Notice of public meetings and hearings.

    SUMMARY:

    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.

    DATES:

    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 p.m. For agendas, see SUPPLEMENTARY INFORMATION.

    ADDRESSES:

    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.

    FOR FURTHER INFORMATION CONTACT:

    Kitty M. Simonds, Executive Director, phone: (808) 522-8220.

    SUPPLEMENTARY INFORMATION:

    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.

    Agenda for the Joint Hawaii AP, REAC and NCFAC Meeting Wednesday, May 11, 2016, 9 a.m.-12 p.m. 1. Welcome and Introductions 2. Report on Changes to the Pelagic and Archipelagic Annual Fisheries Reports 3. Review of Annual Report Fishery Performance Information A. Bottomfish B. Coral Reef C. Crustaceans D. Precious Corals E. Pelagics 4. Review of Annual Report Ecosystem Considerations Information and Data Gaps A. Habitat B. Protected Species C. Human Dimensions D. Climate Variables E. Marine Planning F. Data Integration 5. Report on FEP Implementation Activities 6. Public Comment 7. Discussion and Recommendations Agenda for the Hawaii AP meeting Wednesday, May 11, 2016, 1 p.m.-4 p.m. 1. Welcome and Introductions 2. Hawaii FEP Community Activities 3. Hawaii FEP AP Issues A. Island Fisheries B. Pelagic Fisheries C. Ecosystems and Habitat D. Indigenous and Fishing Communities E. Other Issues 6. Public Comment 7. Discussion and Recommendations 8. Other 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.

    Special Accommodations

    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.

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: April 21, 2016. Tracey L. Thompson, Acting Deputy Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2016-09655 Filed 4-25-16; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration North Pacific Fishery Management Council; Public Meeting AGENCY:

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

    ACTION:

    Notice of public meeting.

    SUMMARY:

    The North Pacific Fishery Management Council (Council) Observer Advisory Committee (OAC) will meet May 12 through May 13, 2016.

    DATES:

    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.

    ADDRESSES:

    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.

    Council address: North Pacific Fishery Management Council, 605 W. 4th Ave., Suite 306, Anchorage, AK 99501-2252; telephone: (907) 271-2809.

    FOR FURTHER INFORMATION CONTACT:

    Diana Evans, Council staff; telephone: (907) 271-2809.

    SUPPLEMENTARY INFORMATION:

    Agenda Thursday, May 12 and Friday, May 13, 2016

    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 http://www.npfmc. org/.

    Special Accommodations

    These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Shannon Gleason at (907) 271-2809 at least 7 working days prior to the meeting date.

    Dated: April 21, 2016. Tracey L. Thompson, Acting Deputy Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2016-09662 Filed 4-25-16; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration North Pacific Fishery Management Council; Public Meeting AGENCY:

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

    ACTION:

    Notice of telephonic meeting.

    SUMMARY:

    The North Pacific Fishery Management Council (Council) Electronic Monitoring Workgroup (EMWG) will hold a telephonic meeting on May 11, 2016.

    DATES:

    The meeting will be held on Wednesday, May 11, 2016, from 8 a.m. to 5 p.m. (Alaska Time).

    ADDRESSES:

    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.

    Council address: North Pacific Fishery Management Council, 605 W. 4th Ave., Suite 306, Anchorage, AK 99501-2252; telephone: (907) 271-2809.

    FOR FURTHER INFORMATION CONTACT:

    Diana Evans, Council staff; telephone: (907) 271-2809.

    SUPPLEMENTARY INFORMATION:

    Agenda Wednesday May 11, 2016

    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 June 2016 Council discussion. The Agenda is subject to change, and the latest version will be posted at http://www.npfmc.org/.

    Special Accommodations

    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.

    Dated: April 21, 2016. Tracey L. Thompson, Acting Deputy Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2016-09661 Filed 4-25-16; 8:45 am] BILLING CODE 3510-22-P
    BUREAU OF CONSUMER FINANCIAL PROTECTION [Docket No: CFPB-2016-0017] Agency Information Collection Activities: Comment Request AGENCY:

    Bureau of Consumer Financial Protection.

    ACTION:

    Notice and request for comment.

    SUMMARY:

    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.”

    DATES:

    Written comments are encouraged and must be received on or before June 27, 2016 to be assured of consideration.

    ADDRESSES:

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

    • 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.

    Please note that comments submitted after the comment period will not be accepted. In general, all comments received will become public records, including any personal information provided. Sensitive personal information, such as account numbers or social security numbers, should not be included.

    FOR FURTHER INFORMATION CONTACT:

    Documentation prepared in support of this information collection request is available at www.regulations.gov. Requests for additional information should be directed to the Consumer Financial Protection Bureau, (Attention: PRA Office), 1700 G Street NW., Washington, DC 20552, (202) 435-9575, or email: [email protected] Please do not submit comments to this mailbox.

    SUPPLEMENTARY INFORMATION:

    Title of Collection: Consumer Advisory Boards, Groups and Committees.

    OMB Control Number: 3170-0037.

    Type of Review: Extension without change of a currently approve collection.

    Affected Public: Individuals.

    Estimated Number of Respondents: 425.

    Estimated Total Annual Burden Hours: 503.

    Abstract: The Consumer Advisory Board (CAB) and other Advisory Groups may invite individuals with special expertise to advise the groups on an ad hoc basis (Special Advisors). The selection-related information will allow the Bureau to obtain information on the qualifications of individuals nominated to the CAB and will aid the Bureau in selecting members for other Advisory Groups. The selection-related information from potential Special Advisors will aid the Bureau in selecting Special Advisors to the CAB and other Advisory Groups. The selection-related information will also aid the Bureau in determining the appropriateness of participation in particular matters. The information collected/advice from members and Special Advisors will aid the Bureau in the exercise of its functions. The feedback collected will allow the Bureau to evaluate and improve its advisory group program. Information collected will be used to issue travel orders or provide reimbursement for travel expenses, as applicable.

    Request for Comments: Comments are invited on: (a) Whether the collection of information is necessary for the proper performance of the functions of the Bureau, including whether the information will have practical utility; (b) The accuracy of the Bureau's estimate of the burden of the collection of information, including the validity of the methods and the assumptions used; (c) Ways to enhance the quality, utility, and clarity of the information to be collected; and (d) Ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval. All comments will become a matter of public record.

    Dated: April 20, 2016. Darrin A. King, Paperwork Reduction Act Officer, Bureau of Consumer Financial Protection.
    [FR Doc. 2016-09694 Filed 4-25-16; 8:45 am] BILLING CODE 4810-AM-P
    DEPARTMENT OF DEFENSE Department of the Air Force United States Air Force F-35A Operational Beddown—Pacific

    ACTION: Notice of Availability (NOA) Record of Decision (ROD).

    SUMMARY: On April 4, 2016, the United States Air Force signed the ROD for the United States Air Force F-35A Operational Beddown—Pacific Final Environmental Impact Statement (EIS). This ROD states the Air Force decision is to select the Proposed Action. The decision means that the Air Force will beddown two squadrons of F-35A aircraft (48 Primary Assigned Aircraft and 6 Backup Inventory) at Eielson Air Force Base, Alaska. The F-35A aircraft will use related airspace and ranges, particularly the Joint Alaska Pacific Range Complex (JAPRC); no new airspace has been proposed to accommodate the F-35A operations.

    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 Federal Register (Volume 81, Number 43, Page 11557) with a post-filing waiting period that ended on April 3, 2016. This ROD documents only the Air Force decision on the proposed actions analyzed in the Final EIS. Authority: This NOA is published pursuant to the regulations (40 CFR 1506.6) implementing the provisions of the National Environmental Policy Act of 1969 (42 U.S.C. 4321, et seq.) and the Air Force's Environmental Impact Analysis Process (32 CFR Secs. 989.21(b) and 989.24(b)(7))

    FOR FURTHER INFORMATION CONTACT:

    Toni Ristau, AFCEC/CZN 2261 Hughes Ave, Ste 155, JBSA Lackland, TX 78236, (210) 925-2738.

    Henry Williams, Acting Air Force Federal Register Liaison Officer.
    [FR Doc. 2016-09683 Filed 4-25-16; 8:45 am] BILLING CODE 5001-10-P
    DEPARTMENT OF DEFENSE Office of the Secretary [Docket ID DoD-2016-OS-0047] Proposed Collection; Comment Request AGENCY:

    Office of the Under Secretary of Defense for Acquisition, Technology and Logistics, DoD.

    ACTION:

    Notice.

    SUMMARY:

    In compliance with the Paperwork Reduction Act of 1995, the Office of the Assistant Secretary of Defense for Research and Engineering announces a proposed public information collection and seeks public comment on the provisions thereof. Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed information collection; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the information collection on respondents, including through the use of automated collection techniques or other forms of information technology.

    DATES:

    Consideration will be given to all comments received by June 27, 2016.

    ADDRESSES:

    You may submit comments, identified by docket number and title, by any of the following methods:

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

    • Mail: ODCMO, Directorate for Oversight and Compliance, 4800 Mark Center Drive, ATTN: Mailbox 24, Alexandria, VA 22350-1700.

    Instructions: All submissions received must include the agency name, docket number and title for this Federal Register document. The general policy for comments and other submissions from members of the public is to make these submissions available for public viewing on the Internet at http://www.regulations.gov as they are received without change, including any personal identifiers or contact information. Any associated form(s) for this collection may be located within this same electronic docket and downloaded for review/testing. Follow the instructions at http://www.regulations.gov for submitting comments. Please submit comments on any given form identified by docket number, form number, and title.

    FOR FURTHER INFORMATION CONTACT:

    To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to the 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.

    SUPPLEMENTARY INFORMATION:

    Title; Associated Form; and OMB Number: Representations to Implement Appropriation Act Provisions on Felony Convictions and Unpaid Federal Tax Liabilities, OMB Control Number 0704-0494.

    Needs and Uses: The information collection requirement is necessary to enable DoD awarding officials to exercise due diligence and continue to comply with provisions found in Sections 745 and 746 of the Financial Services and General Government Appropriations Act, 2016 (Division E of Pub. L. 114-113, the Consolidated Appropriations Act, 2016), as well as similar provisions that future years' appropriations acts may include. The requirements of these provisions were originally enacted in three Fiscal Year (FY) 2012 appropriations acts that made funds available to DoD Components for obligation. The details of the provisions in the three FY 2012 acts varied somewhat but they generally required DoD to consider suspension or debarment before using appropriated funding to enter into a grant or cooperative agreement with a corporation if the awarding official was aware that the corporation had an unpaid federal tax liability or was convicted of a felony criminal violation within the preceding 24 months. The FY 2012 provisions were in:

    • 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.

    Affected Public: Not-For-Profit institutions; Individuals or Households; Business or Other For-Profit; Farms; Federal Government; or State, Local or Tribal Government.

    Annual Burden Hours: 1,250.

    Number of Respondents: 2,500.

    Responses per Respondent: 6.

    Annual Responses: 15,000.

    Average Burden per Response: 5.

    Frequency: On occasion.

    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 (http://www.acq.osd.mil/rd/basic_research/funding/documents/appropriations_act_provisions.pdf).

    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—i.e., to decide whether the agency must first consider suspension or debarment of the entity and determine that further action is not necessary to protect the interests of the Government. An entity that fails to submit a required representation therefore will be ineligible to receive a grant or cooperative agreement from the agency.

    Dated: April 21, 2016. Aaron Siegel, Alternate OSD Federal Register Liaison Officer, Department of Defense.
    [FR Doc. 2016-09652 Filed 4-25-16; 8:45 am] BILLING CODE 5001-06-P
    DEPARTMENT OF DEFENSE Office of the Secretary Charter Renewal of Department of Defense Federal Advisory Committees AGENCY:

    Department of Defense.

    ACTION:

    Renewal of Federal Advisory Committee.

    SUMMARY:

    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”).

    FOR FURTHER INFORMATION CONTACT:

    Jim Freeman, Advisory Committee Management Officer for the Department of Defense, 703-692-5952.

    SUPPLEMENTARY INFORMATION:

    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 http://www.facadatabase.gov/. The Board provides the Secretary of Defense independent advice and recommendations on matters relating to the Army's scientific, technical, manufacturing, acquisition, logistics, and business management functions, as well as other Department of the Army related matters as determined by the Secretary of the Army. The Board shall be composed of no more than 20 members who are eminent authorities in one or more of the following disciplines: Science, technology, manufacturing, acquisition, logistics, and business management functions, as well as other matters of special interest to the Department of the Army. Members who are not full-time or permanent part-time Federal officers or employees will be appointed as experts or consultants pursuant to 5 U.S.C. 3109 to serve as special government employee members. Members who are full-time or permanent part-time Federal officers or employees will serve as regular government employee members. All members are appointed to provide advice on behalf of the Government on the basis of their best judgment without representing any particular point of view and in a manner that is free from conflict of interest. Except for reimbursement of official Board-related travel and per diem, members serve without compensation.

    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.

    Dated: April 21, 2016. Aaron Siegel, Alternate OSD Federal Register Liaison Officer, Department of Defense.
    [FR Doc. 2016-09639 Filed 4-25-16; 8:45 am] BILLING CODE 5001-06-P
    DEPARTMENT OF DEFENSE Office of the Secretary Judicial Proceedings Since Fiscal Year 2012 Amendments Panel (Judicial Proceedings Panel); Notice of Federal Advisory Committee Meeting AGENCY:

    Department of Defense.

    ACTION:

    Notice of meeting.

    SUMMARY:

    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.

    DATES:

    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.

    ADDRESSES:

    The Judge Advocate General's Legal Center and School, 600 Massie Rd., Charlottesville, VA 22903.

    FOR FURTHER INFORMATION CONTACT:

    Ms. Julie Carson, Judicial Proceedings Panel, One Liberty Center, 875 N. Randolph Street, Suite 150, Arlington, VA 22203. Email: [email protected] Phone: (703) 693-3849. Web site: http://jpp.whs.mil.

    SUPPLEMENTARY INFORMATION:

    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.

    Purpose of the Meeting: In Section 576(a)(2) of the National Defense Authorization Act for Fiscal Year 2013 (Pub. L. 112-239), as amended, Congress tasked the Judicial Proceedings Panel to conduct an independent review and assessment of judicial proceedings conducted under the Uniform Code of Military Justice (UCMJ) involving adult sexual assault and related offenses since the amendments made to the UCMJ by section 541 of the National Defense Authorization Act for Fiscal Year 2012 (Public Law 112-81; 125 Stat. 1404), for the purpose of developing recommendations for improvements to such proceedings. At this meeting, the Panel will review training and experience for military attorneys involved in the adjudication of sexual assault offenses. The Panel is interested in written and oral comments from the public, including non-governmental organizations, relevant to these issues or any of the Panel's tasks.

    Agenda —8:30 a.m.-9:00 a.m. Administrative Work (41 CFR 102-3.160, not subject to notice & open meeting requirements) —9:00 a.m.-10:30 a.m. Overview on Judge Advocate Military Justice Training (Public meeting begins)Speakers: Leaders from the Services' schools for judge advocate training —10:30 a.m.-12:00 p.m. Overview on Training and Experience of Attorneys Prosecuting Adult Sexual Assault Cases—Speakers: Service experts on trial counsel training —12:00 p.m.-1:00 p.m. Lunch and Tour of the Army JAG School —1:00 p.m.-2:30 p.m. Overview on Training and Experience of Attorneys Defending Adult Sexual Assault Cases—Speakers: Service experts on defense counsel training —2:30 p.m.-4:00 p.m. Overview of Training and Experience of Special Victims' Counsel—Speakers: Service experts on victim counsel training —4:00 p.m.-4:15 p.m. Public Comment

    Availability of Materials for the Meeting: A copy of the May 13, 2016 public meeting agenda or any updates or changes to the agenda, to include individual speakers not identified at the time of this notice, as well as other materials provided to Panel members for use at the public meeting, may be obtained at the meeting or from the Panel's Web site at http://jpp.whs.mil. In the event the Office of Personnel Management closed the government due to inclement weather or any other reason, please consult the Web site for any changes in the public meeting date or time.

    Public's Accessibility to the Meeting: Pursuant to 5 U.S.C. 552b and 41 CFR 102-3.140 through 102-3.165, and the availability of space, this meeting is open to the public. Parking is available at the Legal Center and School. To park, attendees must present a government-issued photo identification card to the Legal Center and School security guard, who will direct you to the parking lot designated for the event. To enter the building, attendees must present a government-issued photo identification card to the security guard, register with staff, and wear a visitor badge while in the building. Staff will direct attendees to the location of the meeting. Seating is limited and is on a first-come basis.

    Special Accommodations: Individuals requiring special accommodations to access the public meeting should contact the Judicial Proceedings Panel at [email protected] at least five (5) business days prior to the meeting so that appropriate arrangements can be made.

    Procedures for Providing Public Comments: Pursuant to 41 CFR 102-3.140 and section 10(a)(3) of the Federal Advisory Committee Act of 1972, the public or interested organizations may submit written comments to the Panel about its mission and topics pertaining to this public session. Written comments must be received by the JPP at least five (5) business days prior to the meeting date so that they may be made available to the Judicial Proceedings Panel for their consideration prior to the meeting. Written comments should be submitted via email to the Judicial Proceedings Panel at [email protected] in the following formats: Adobe Acrobat or Microsoft Word. Please note that since the Judicial Proceedings Panel operates under the provisions of the Federal Advisory Committee Act, as amended, all written comments will be treated as public documents and will be made available for public inspection. If members of the public are interested in making an oral statement, a written statement must be submitted as above along with a request to provide an oral statement. After reviewing the written comments, the Chairperson and the Designated Federal Officer will determine who of the requesting persons will be able to make an oral presentation of their issue during the open portion of this meeting. Determination of who will be making an oral presentation is at the sole discretion of the Committee Chair and the Designated Federal Officer and will depend on time available and relevance to the Panel's activities, and on a first-come basis. Oral presentations by members of the public will be permitted from 4:00 p.m. to 4:15 p.m. on May 13, 2016 in front of the Panel members.

    Committee's Designated Federal Officer: The Panel's Designated Federal Officer is Ms. Maria Fried, Department of Defense, Office of the General Counsel, 1600 Defense Pentagon, Room 3B747, Washington, DC 20301-1600.

    Dated: April 21, 2016. Aaron Siegel, Alternate OSD Federal Register Liaison Officer, Department of Defense.
    [FR Doc. 2016-09671 Filed 4-25-16; 8:45 am] BILLING CODE 5001-06-P
    DENALI COMMISSION [3300-01-m] Denali Commission Fiscal Year 2016 Draft Work Plan AGENCY:

    Denali Commission.

    ACTION:

    Notice.

    SUMMARY:

    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 Federal Register, providing an opportunity for a 30-day period of public review and written comment. This Federal Register notice serves to announce the 30-day opportunity for public comment on the Denali Commission Draft Work Plan for Federal Fiscal Year 2016 (FY 2016).

    DATES:

    Comments and related material to be received by May 25, 2016.

    ADDRESSES:

    Submit comments to the Denali Commission, Attention: Sabrina Cabana, 510 L Street, Suite 410, Anchorage, AK 99501.

    FOR FURTHER INFORMATION CONTACT:

    Ms. Sabrina Cabana, Denali Commission, 510 L Street, Suite 410, Anchorage, AK 99501. Telephone: (907) 271-1414. Email: [email protected]

    Background: The Denali Commission's mission is to partner with tribal, federal, state, and local governments and collaborate with all Alaskans to improve the effectiveness and efficiency of government services, to build and ensure the operation and maintenance of Alaska's basic infrastructure, and to develop a well-trained labor force employed in a diversified and sustainable economy.

    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 www.denali.gov for review by the public in advance of public testimony.

    • 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 Federal Register providing a 30-day period for public review and written comment. During this time, the draft Work Plan will also be disseminated to Commission program partners including, but not limited to, the Bureau of Indian Affairs (BIA), the Economic Development Administration (EDA), Department of Agriculture—Rural Utilities Service (USDA/RUS), and the State of Alaska.

    • At the conclusion of the Federal Register Public comment period Commission staff provides the Federal Co-Chair with a summary of public comments and recommendations, if any, on the draft Work Plan.

    • 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.

    FY 2016 Appropriations Summary

    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 (i.e. “discretionary” or “base” funding) is eligible for use in all programs.

    • 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.

    Denali Commission FY 2016 Funding Summary Source Available for program activities Energy & Water Funds: FY 2016 Appropriations $8,000,000 Prior Year Funds and Anticipated Recoveries 2,000,000 Subtotal 10,000,000 TAPL Funds: FY 2016 Annual Allocation 11,500,000 Prior Year Allocation Prior Year Funds and Anticipated Recoveries 1,000,000 Subtotal 12,500,000 Grand Total 22,500,000 Denali Commission FY 2016 Work Plan Program and type of investment Energy & water funds TAPL funds Total Energy: New Rural Power System Upgrade (RPSU) Projects $2,800,000 $2,800,000 RPSU Maintenance & Improvements 500,000 500,000 Audits, Technical Assistance, & Community Energy Efficiency Projects 500,000 500,000 New & Refurbishment Bulk Fuel Projects * 3,400,000 3,400,000 Bulk Fuel Maintenance & Improvements 1,000,000 1,000,000 Bulk Fuel Operations & Maintenance Practices 200,000 250,000 450,000 Subtotal 4,000,000 4,650,000 8,650,000 Transportation: Barge Landings & Mooring Points 7,200,000 7,200,000 Subtotal 0 7,200,000 7,200,000 Environmentally Threatened Communities: Mertarvik 2,870,000 150,000 3,020,000 Shaktoolik 520,000 500,000 1,020,000 Shishmaref 520,000 520,000 Kivalina 520,000 520,000 Other Communities in GAO Report 09-551 490,000 490,000 Statewide Activities/Support 1,080,000 1,080,000 Subtotal ** 6,000,000 650,000 6,650,000 Grand Total 10,000,000 12,500,000 22,500,000 * $1M from prior year funds and anticipated recoveries directed to the AEA Kipnuk Bulk Fuel Project. ** $2M from prior year funds, $1,080,000 of which is for Statewide Activities/Support. Environmentally Threatened Communities Program—Draft FY 2016 Investment Plan

    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 (http://www.gao.gov/products/GAO-09-551) was instrumental in charting prospective Commission investments.

    Mertarvik

    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.

    Shaktoolik

    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

    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

    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.

    Other Communities in the 2009 GAO Report

    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.

    Statewide

    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.

    Statement Regarding FY 2017 Work Plan

    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.

    Joel Neimeyer, Federal Co-Chair.
    [FR Doc. 2016-09708 Filed 4-25-16; 8:45 am] BILLING CODE P
    DEPARTMENT OF EDUCATION Applications for New Awards; Performance Partnership Pilots AGENCY:

    Office of Career, Technical, and Adult Education, Department of Education.

    ACTION:

    Notice.

    Overview Information:

    Performance Partnership Pilots

    Notice inviting applications for new awards for fiscal year (FY) 2015.

    Catalog of Federal Domestic Assistance (CFDA) Number: 84.420A.

    Dates:

    Applications Available: April 26, 2016.

    Deadline for Notice of Intent to Apply: May 26, 2016.

    Note:

    Submission of a notice of intent to apply is optional.

    Deadline for Transmittal of Applications: June 27, 2016.

    Deadline for Intergovernmental Review: August 24, 2016.

    Full Text of Announcement I. Funding Opportunity Description

    Purpose of Program: Performance Partnership Pilots (P3), first authorized by Congress for FY 2014 by the Consolidated Appropriations Act, 2014 (2014 Appropriations Act) and reauthorized for FY 2015 by the Consolidated and Further Continuing Appropriations Act, 2015 (2015 Appropriations Act) and for FY 2016 by the Consolidated Appropriations Act, 2016 (2016 Appropriations Act) (together, the Acts), enable pilot sites to test innovative, outcome-focused strategies to achieve significant improvements in educational, employment, and other key outcomes for disconnected youth using new flexibility to blend existing Federal funds and to seek waivers of associated program requirements.

    Background: The Acts authorize the Departments of Education (ED), Labor (DOL), Health and Human Services (HHS), Housing and Urban Development (HUD),1 and Justice (DOJ),2 the Corporation for National and Community Service (CNCS), and the Institute of Museum and Library Services (IMLS) (collectively, the Agencies), to enter into Performance Partnership Agreements (performance agreements) with State, local, or tribal governments to provide additional flexibility in using certain of the Agencies' discretionary funds,3 including competitive and formula grant funds, across multiple Federal programs. Entities that seek to participate in these pilots will be required to commit to achieving significant improvements in outcomes for disconnected youth in exchange for this new flexibility. The authorizing statute states that “ ‘[t]o improve outcomes for disconnected youth' means to increase the rate at which individuals between the ages of 14 and 24 (who are low-income and either homeless, in foster care, involved in the juvenile justice system, unemployed, or not enrolled in or at risk of dropping out of an educational institution) achieve success in meeting educational, employment, or other key goals.”

    1 The 2016 Appropriations Act authorizes HUD to enter into performance agreements with respect to FY 2016 Homeless Assistance Grants. HUD is not authorized to enter into performance agreements that will be established under this notice. A notice inviting applications for FY 2016 pilots that may include FY 2016 Homeless Assistance Grants is expected to be issued later this year.

    2 DOJ was first authorized to enter into performance agreements by the 2015 Appropriations Act.

    3 Discretionary funds are funds that Congress appropriates on an annual basis, rather than through a standing authorization. They exclude “entitlement” (or mandatory) programs such as Social Security, Medicare, Medicaid, most Foster Care IV-E programs, Vocational Rehabilitation State Grants, and Temporary Assistance to Needy Families (TANF). Discretionary programs administered by the Agencies support a broad set of public services, including education, job training, health and mental health, and other low-income assistance programs.

    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.4 Immigrants and refugees are another high-need subpopulation at great risk of dropping out. In 2014, the status dropout rate of immigrant youth ages 16 to 24 was 12 percent, compared with 8 percent for children of foreign-born parents, and 6 percent for children with native-born parents.5 Applicants wishing to serve a subpopulation of disconnected youth at risk of dropping out—such as the examples above—should consider whether that subpopulation faces an elevated risk of dropping out based on sound research.

    4 EDFacts/Consolidated State Performance Report, School Year 2013-14. Retrieved from nces.ed.gov/ccd/tables/ACGR_RE_and_characteristics_2013-14.asp

    5 Child Trends Data Bank (2015). High School Dropout Rates. Retrieved from www.childtrends.org/wp-content/uploads/2014/10/01_Dropout_Rates.pdf

    FY 2015 and FY 2016 Funds

    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, including programs funded under DOJ's Office of Justice Programs,6 due to the authority in the 2016 Appropriations Act. However, if an applicant intends to use solely FY 2016 funds, it is not eligible to be a second-round pilot.

    6 Under the language of the 2015 Appropriations Act, applicants may not propose to blend or request any waiver of program requirements associated with FY 2015 funds from DOJ's Office of Justice Programs. However, they may propose to braid those funds in this round of pilots.

    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.

    Absolute Priorities

    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.7 Though the economy has recovered strongly in many places, many communities continue to struggle with high youth unemployment, low graduation rates, and crime. These and other continuing challenges can manifest in different instances of civil unrest, such as large protests or instances of civil disobedience increases in self-directed or interpersonal violence in concentrated areas, or civic disorder prompted by a public health emergency. In response to the priority, an applicant should describe the instance(s) of civil unrest, including (1) a description of the civil unrest that occurred in the community or communities it intends to serve; and (2) the date or dates the civil unrest occurred. We include this priority in the FY 2015 P3 competition in the hopes that P3 flexibilities, including waivers and the blending and braiding of funds, will empower communities to improve educational and employment outcomes for disconnected youth in these communities.

    7 The 2016 Appropriations Act states that the FY 2015 cohort of P3 pilots is to include communities that have recently experienced civil unrest.

    Competitive Preference Priorities

    Competitive preference priorities allow applicants to receive extra points for satisfying certain criteria.

    Competitive Preference Priority 1

    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.8 Living in a neighborhood with a high concentration of poverty is another barrier. Research indicates that individuals who reside in high-poverty neighborhoods often have diminished access to employment options and high-quality educational opportunities.9 Involvement with the justice system is another example of a significant barrier to education and employment for youth who are neither employed nor enrolled in school. Many youth involved with the justice system face significant barriers to accessing the education and training they need to achieve independence and reintegrate into the community because the education and training available to them through correctional facilities, as well as upon release, often does not meet their needs.10 For older youth involved with the adult criminal justice system, having a criminal record can severely limit the ability to secure employment.11 Reconnecting these young people to education and employment is a national imperative, and including this priority as a competitive preference priority will create incentives for applicants and communities to design projects to serve this hard-to-reach population.

    9 Federal Reserve System and Brookings Institution (2008). The Enduring Challenge of Concentrated Poverty in America: Case Studies from Communities Across the U.S. Washington, DC: Authors. Retrieved from www.frbsf.org/community-development/files/cp_fullreport.pdf.

    10 See, for example, Juvenile Justice Students Face Barriers to High School Graduation and Job Training (2010). Report No. 10-55. Tallahassee, FL: Office of Program Policy Analysis and Government Accountability, the Florida Legislature, Retrieved from: www.oppaga.state.fl.us/MonitorDocs/Reports/pdf/1055rpt.pdf.

    11 See, for example, Pager, D.P. and Western, B. (2009). Investigating Prisoner Reentry: The Impact of Conviction Status on the Employment Prospects of Young Men: Final Report to the National Institute of Justice. Document No.: 228584. Retrieved from: www.ncjrs.gov/pdffiles1/nij/grants/228584.pdf.

    Competitive Preference Priority 2

    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.12 For youth who are not enrolled in school, year-round employment, and not just employment during the summer, is critically important. The work-based learning opportunities must be integrated with academic and technical instruction because research suggests that work experience must be combined with academic and technical training in order to have a positive impact on the employment and earnings outcomes of youth.13

    12 Gelber, A., Isen, A. and Kessler, J.B. (2014). The Effects of Youth Employment: Evidence from New York City Summer Youth Employment. Program Lotteries. NBER Working Paper No. 20810. Cambridge, MA: National Bureau of Economic Research.

    13 Sattar, S. (2010). Evidence Scan of Work Experience Programs. Oakland, CA: Mathematica Policy Research. See also Roder, A. and Elliott, M. (2014). Sustained Gains: Year-Up's Continued Impact on Young Adults' Earnings. New York, NY: Economic Mobility Corporation, Inc.

    Competitive Preference Priority 3

    This competition also includes a competitive preference priority for projects that are designed to serve and coordinate with a federally designated Promise Zone. Promise Zone designees have committed to establishing comprehensive, coordinated approaches in order to ensure that America's most vulnerable children succeed from cradle to career. Thirteen Promise Zones have been designated. They are located in: The Choctaw Nation of Oklahoma; Los Angeles, California; Sacramento, California; Hartford, Connecticut; Indianapolis, Indiana; the Kentucky Highlands in Kentucky; Minneapolis, Minnesota; St. Louis and St. Louis County, Missouri; Camden, New Jersey; Philadelphia, Pennsylvania; Barnwell, South Carolina; Porcupine, South Dakota; and San Antonio, Texas. Additional Promise Zones are expected to be designated later this year. The Promise Zone designation is designed to assist local leaders in creating jobs, increasing economic activity, improving educational opportunities, leveraging private investment, and reducing violent crime in high-poverty urban, rural, and tribal communities.14

    14 For additional information on Promise Zones, see www.whitehouse.gov/the-press-office/2014/01/08/fact-sheet-president-obama-s-promise-zones-initiative.

    Competitive Preference Priority 4

    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 Program Requirements section of this notice. In proposing these site-specific impact evaluations, applicants should use the strongest possible designs and research methods and use high-quality administrative data in order to maximize confidence in the evaluation findings and minimize the costs of conducting these evaluations. Federal start-up funds and blended funds may be used to finance these evaluations.

    Priorities: This competition includes four absolute priorities, four competitive preference priorities, and two invitational priorities. Absolute Priorities 1, 2 and 3 and Competitive Preference Priorities 1, 2 and 4 are from the notice of final priorities, requirements, definitions, and selection criteria for this program published elsewhere in this issue of the Federal Register (P3 NFP). Absolute Priority 4 is from section 525(b) of Division H of the 2016 Appropriations Act. Competitive Preference Priority 3 is from notice of final priority—Promise Zones, published in the Federal Register on March 27, 2014 (79 FR 17035) (Promise Zones NFP).

    Absolute Priorities: These priorities are considered absolute priorities for FY 2015 and any subsequent year for which we make awards from the list of unfunded applicants from this competition. Under 34 CFR 75.105(c)(3) we consider only applications that meet Absolute Priority 1, 2, 3, or 4.

    Note:

    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:

    Absolute Priority 1—Improving Outcomes for Disconnected Youth.

    To meet this priority, an applicant must propose a pilot that is designed to improve outcomes for disconnected youth.

    Absolute Priority 2—Improving Outcomes for Disconnected Youth in Rural Communities.

    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.

    Note:

    An applicant should describe in its application how it meets the priority.

    Absolute Priority 3—Improving Outcomes for Disconnected Youth in Tribal Communities.

    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.

    Absolute Priority 4—Improving Outcomes for Disconnected Youth in Communities that Have Recently Experienced Civil Unrest.

    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.

    Competitive Preference Priorities: For FY 2015 and any subsequent year for which we make awards from the list of unfunded applicants from this competition, these priorities are competitive preference priorities. Under 34 CFR 75.105(c)(2)(i), we award up to an additional five points to an application based on how well the application meets Competitive Preference Priority 1, an additional three points to an application that meets Competitive Preference Priority 2, an additional two points to an application that meets Competitive Preference Priority 3, and up to an additional 10 points to an application based on how well the application meets Competitive Preference Priority 4.

    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.

    Competitive Preference Priority 1—Improving Outcomes for Youth Who Are Unemployed and Out of School (Up to 5 points).

    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.

    Competitive Preference Priority 2—Work-Based Learning Opportunities (0 or 3 points).

    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.

    Competitive Preference Priority 3—Promise Zones (0 or 2 points).

    This priority is for projects that are designed to serve and coordinate with a federally designated Promise Zone.

    Competitive Preference Priority 4—Site-Specific Evaluation (Up to 10 points).

    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 randomized controlled trial or quasi-experimental evaluation study.

    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—i.e., blended funding, start-up funding, State, local, or tribal government funding, or other funding (such as philanthropic). The budget must include a breakout of costs by evaluation activity (such as data collection and participant follow-up), and the applicant must describe a strategy for refining the budget after the services of an evaluator have been procured. The applicant must include travel costs for the qualified independent evaluator to attend at least one in-person conference in Washington, DC during the period of evaluation. All costs included in this supplementary budget narrative must be reasonable and appropriate to the project timeline and deliverables.

    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]

    Invitational Priorities:

    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.

    Invitational Priority 1—Improving Outcomes for Homeless Youth.

    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.

    Invitational Priority 2—Improving Outcomes for Youth Involved in the Justice System.

    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.

    Application Requirements:

    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) Executive Summary. The applicant must provide an executive summary that briefly describes the proposed pilot, the flexibilities being sought, and the interventions or systems changes that would be implemented by the applicant and its partners to improve outcomes for disconnected youth.

    (b) Target Population. The applicant must complete Table 1, specifying the target population(s) for the pilot, including the age range of youth who will be served and the estimated number of youth who will be served over the course of the pilot.

    Table 1—Target Population Target
  • population
  • Age range Estimated number of youth served over the course of the pilot

    (c) Flexibility, including waivers:

    1. Federal requests for flexibility, including waivers. For each program to be included in a pilot, the applicant must complete Table 2, Requested Flexibility. The applicant must identify two or more discretionary Federal programs that will be included in the pilot, at least one of which must be administered (in whole or in part) by a State, local, or tribal government.15 The applicant must identify one or more program requirements that would inhibit implementation of the pilot and request that the requirement(s) be waived in whole or in part. Examples of potential waiver requests and other requests for flexibility include, but are not limited to: Blending of funds and changes to align eligibility requirements, allowable uses of funds, and performance reporting.

    15 Local governments that are requesting waivers of requirements in State-administered programs are strongly encouraged to consult with the State agencies that administer the programs in preparing their applications.

    Table 2—Requested Flexibility Program name Federal
  • agency
  • Program
  • requirements
  • to be waived
  • in whole or
  • in part
  • Statutory or regulatory
  • citation
  • Name of
  • program
  • grantee
  • Blending funds?
  • (Yes/No)
  • Note: Please note in “Name of Program Grantee” if the grantee is a State, local, or tribal government, or non-governmental entity.

    2. Non-Federal flexibility, including waivers. The applicant must provide written assurance that:

    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; 16 or

    16 This includes, for example, for local governments, instances in which a waiver must be agreed upon by a State. It also includes instances in which waivers may only be requested by the State on the local government's behalf, such as waivers of the performance accountability requirements for local areas established in Title I of the Workforce Innovation and Opportunity Act.

    B. Non-Federal flexibility, including waivers, is not needed in order to successfully implement the pilot.

    (d) Logic Model. The applicant must provide a graphic depiction (not longer than one page) of the pilot's logic model that illustrates the underlying theory of how the pilot's strategy will produce intended outcomes.

    (e) Partnership Capacity and Management. The applicant must—

    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).

    Table 3—Pilot Partners Partner Type of Organization
  • (State agency, local
  • agency, community-based
  • organization, business)
  • Description of Partner's Role in the Pilot
    Note: Any grantees mentioned in Table 2 that are not the lead applicant must be included in Table 3.

    (f) Data and Performance Management Capacity.

    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.

    Education Domain Outcome measure Interim indicator High school diploma or equivalency attainment • High school enrollment. • Reduction in chronic absenteeism. • Grade promotion. • Performance on standardized assessments. • Grade Point Average. • Credit accumulation. College completion • Enrollment. • Course attendance. • Credit accumulation. • Retention. Employment Domain Outcome measure Interim indicator Sustained Employment • Unsubsidized employment at time periods after exit from the program. • Median earnings at time periods after exit from the program.

    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.

    Table 4—Outcome Measures and Interim Indicators Domain Outcome measure Interim indicator(s) Education Data Source: Data Source: Frequency of Collection: Frequency of Collection: Methodology: Methodology: Employment Data Source: Data Source: Frequency of Collection: Frequency of Collection: Methodology: Methodology: Other Data Source: Data Source: Frequency of Collection: Frequency of Collection: Methodology: Methodology:

    (g) Budget and Budget Narrative.

    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.

    Table 5—Federal Funds Program name Grantee Amount of
  • funds to be blended
  • Blended funds
  • as a
  • percentage of
  • grantee's
  • total award
  • Federal fiscal
  • year of award
  • Grant already awarded?
  • (Y/N)
  • Total Blended
    Program name Grantee Amount of
  • funds to be blended
  • Blended funds
  • as a
  • percentage of
  • grantee's
  • total award
  • Federal fiscal
  • year of award
  • Grant already awarded?
  • (Y/N)
  • Total Braided Note: Applicants may propose to expand the number of Federal programs supporting pilot activities using future funding beyond FY 2016, which may be included in pilots if Congress extends the P3 authority. [Approved by the Office of Management and Budget under control number 1830-0575]

    Program Requirements:

    (a) National evaluation. In addition to any site-specific evaluations that pilots may undertake, the Agencies may initiate a national P3 evaluation of the pilots selected in Round 2, as well as those selected in subsequent rounds. 17 Each P3 pilot must participate fully in any federally sponsored P3 evaluation activity, including the national evaluation of P3, which will consist of the analysis of participant characteristics and outcomes, an implementation analysis at all sites, and rigorous impact evaluations of promising interventions in selected sites. The applicant must acknowledge in writing its understanding of these requirements by submitting the form provided in Appendix A, “Evaluation Commitment Form,” as an attachment to its application.

    17 The initiation of any federally sponsored national P3 evaluation activities is dependent upon the availability of sufficient funds and resources.

    [Approved by the Office of Management and Budget under control number 1830-0575]

    (b) Community of practice. All P3 pilots must participate in a community of practice (as defined in this notice) that includes an annual in-person meeting of pilot sites (paid with grant funding that must be reflected in the pilot budget submitted) and virtual peer-to-peer learning activities. This commitment involves each pilot site working with the lead Federal agency on a plan for supporting its technical assistance needs, which can include learning activities supported by foundations or other non-Federal organizations as well as activities financed with Federal funds for the pilot.

    (c) Consent. P3 pilots must secure necessary consent from parents, guardians, students, or youth program participants to access data for their pilots and any evaluations, in accordance with applicable Federal, State, local, and tribal laws. Applicants must explain how they propose to ensure compliance with Federal, State, local, and tribal privacy laws and regulations as pilot partners share data to support effective coordination of services and link data to track outcome measures and interim indicators at the individual level to perform, where applicable, a low-cost, high-quality evaluation.18

    18 To the extent feasible and consistent with applicable privacy requirements, grantees must also ensure the data from their evaluations are made available to third‐party researchers.

    (d) Performance agreement. Each P3 pilot, along with other non-Federal government entities involved in the partnership, must enter into a performance agreement that will include, at a minimum, the following (as required by section 526(c)(2) of Division H of the 2014 Appropriations Act):

    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.

    Definitions: The following definitions are from the P3 NFP, the 2014 Appropriations Act, and 34 CFR 77.1.

    Blended funding is a funding and resource allocation strategy that uses multiple existing funding streams to support a single initiative or strategy. Blended funding merges two or more funding streams, or portions of multiple funding streams, to produce greater efficiency and/or effectiveness. Funds from each individual stream lose their award-specific identity, and the blended funds together become subject to a single set of reporting and other requirements, consistent with the underlying purposes of the programs for which the funds were appropriated.

    Braided funding is a funding and resource allocation strategy in which entities use existing funding streams to support unified initiatives in as flexible and integrated a manner as possible while still tracking and maintaining separate accountability for each funding stream. One or more entities may coordinate several funding sources, but each individual funding stream maintains its award-specific identity. Whereas blending funds typically requires one or more waivers of associated program requirements, braiding does not. However, waivers may be used to support more effective or efficient braiding of funds.

    Community of practice means a group of pilots that agrees to interact regularly to solve persistent problems or improve practice in an area that is important to them and the success of their projects.

    English learner means an individual who has limited ability in reading, writing, speaking, or comprehending the English language, and—

    (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.

    Evidence-informed interventions bring together the best available research, professional expertise, and input from youth and families to identify and deliver services that have promise to achieve positive outcomes for youth, families, and communities.

    Homeless youth has the same meaning as “homeless children and youths” in section 725(2) of the McKinney-Vento Education for Homeless Children and Youth Act of 2001 (42 U.S.C. 11434a(2)).

    An interim indicator is a marker of achievement that demonstrates progress toward an outcome and is measured at least annually.

    Interventions based on evidence are approaches to prevention or treatment that are validated by documented scientific evidence from randomized controlled trials, or quasi-experimental design studies or correlational studies, and that show positive effects (for randomized controlled trials and quasi-experimental design studies) or favorable associations (for correlational studies) on the primary targeted outcomes for populations or settings similar to those of the proposed pilot. The best evidence to support an applicant's proposed reform(s) and target population will be based on one or more randomized controlled trials. The next best evidence will be studies using a quasi-experimental design. Correlational analysis may also be used as evidence to support an applicant's proposed reforms.

    Logic model (also referred to as theory of action) means a well-specified conceptual framework that identifies key components of the proposed process, product, strategy, or practice (i.e., the active “ingredients” that are hypothesized to be critical to achieving the relevant outcomes) and describes the relationships among the key components and outcomes, theoretically and operationally.

    Outcomes are the intended results of a program, or intervention. They are what applicants expect their projects to achieve. An outcome can be measured at the participant level (for example, changes in employment retention or earnings of disconnected youth) or at the system level (for example, improved efficiency in program operations or administration).

    A qualified independent evaluator is an individual who coordinates with the grantee and the lead Federal agency for the pilot, but works independently on the evaluation and has the capacity to carry out the evaluation, including, but not limited to: Prior experience conducting evaluations of similar design (for example, for randomized controlled trials, the evaluator will have successfully conducted a randomized controlled trial in the past); positive past performance on evaluations of a similar design, as evidenced by past performance reviews submitted from past clients directly to the awardee; lead staff with prior experience carrying out a similar evaluation; lead staff with minimum credential (such as a Ph.D. plus three years of experience conducting evaluations of a similar nature, or a Master's degree plus seven years of experience conducting evaluations of a similar nature); and adequate staff time to work on the evaluation.

    Quasi-experimental design study means a study using a design that attempts to approximate an experimental design by identifying a comparison group that is similar to the treatment group in important respects. These studies, depending on design and implementation, can meet What Works Clearinghouse Evidence Standards (as defined in this notice) with reservations (but not What Works Clearinghouse Evidence Standards without reservations).

    Randomized controlled trial means a study that employs random assignment of, for example, students, teachers, classrooms, schools, or districts to receive the intervention being evaluated (the treatment group) or not to receive the intervention (the control group). The estimated effectiveness of the intervention is the difference between the average outcome for the treatment group and for the control group. These studies, depending on design and implementation, can meet What Works Clearinghouse Evidence Standards (as defined in this notice) without reservations.

    A rural community is a community that is served only by one or more local educational agencies (LEAs) that are currently eligible under the Department of Education's Small, Rural School Achievement (SRSA) program or the Rural and Low-Income School (RLIS) program authorized under the Elementary and Secondary Education Act of 1965 (ESEA), as amended, or includes only schools designated by the National Center for Education Statistics (NCES) with a locale code of 42 or 43.

    A waiver provides flexibility in the form of relief, in whole or in part, from specific statutory, regulatory, or administrative requirements that have hindered the ability of a State, locality, or tribe to organize its programs and systems or provide services in ways that best meet the needs of its target populations. Under P3, waivers provide flexibility in exchange for a pilot's commitment to improve programmatic outcomes for disconnected youth consistent with underlying statutory authorities and purposes.

    Program Authority: Section 524 of Division G and section 219 of Division B of the 2015 Appropriations Act and Section 219 of Division B and section 525 of Division H of the 2016 Appropriations Act.

    Applicable Regulations:

    (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.

    Note:

    The regulations in 34 CFR part 79 apply to all applicants except federally recognized Indian tribes.

    II. Award Information

    Type of Award: Cooperative agreement.

    Estimated Available Funds: Up to $3,050,000.

    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.

    Estimated Range of Awards: $250,000 to $350,000.

    Estimated Average Size of Award: $300,000.

    Estimated Number of Awards: 10.

    Note:

    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.

    Project Period: Not to extend beyond September 30, 2019.

    III. Eligibility Information

    1. Eligible Applicants: The lead applicant must be a State, local, or tribal government entity, represented by a Chief Executive, such as a governor, mayor, or other elected leader, or the head of a State, local, or tribal agency.

    2. Cost-Sharing or Matching: This program does not require cost-sharing or matching.

    3. Eligible Subgrantees: (a) Under 75.708(b) and (c) a grantee may award subgrants—to directly carry out project activities described in its application—to the following types of entities: State governmental agencies; local governmental agencies, including local educational agencies; tribal governmental agencies; institutions of higher education; and nonprofit organizations.

    (b) The grantee may award subgrants to entities it has identified in an approved application.

    IV. Application and Submission Information

    1. Address to Request Application Package: Marilyn Fountain, U.S. Department of Education, 400 Maryland Avenue SW., room 11026, PCP, Washington, DC 20202. Telephone: (202) 245-7346. Email address: [email protected] Or Rosanne Andre, U.S. Department of Education, 400 Maryland Avenue SW., room 11070, PCP, Washington, DC 20202. Telephone: (202) 245-7789. Email address: [email protected]

    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 (e.g., braille, large print, audiotape, or compact disc) by contacting either of the program contact persons listed in this section.

    2. a. Content and Form of Application Submission: Requirements concerning the content of an application, together with the forms you must submit, are in the application package for this competition.

    Notice of Intent to Submit an Application: May 26, 2016.

    Note:

    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 [email protected] the following information: (1) The applicant organization's name and address and (2) the absolute priority the applicant intends to address. Applicants that do not submit a notice of intent to apply may still submit an application.

    Page Limit: The application narrative is where you, the applicant, provide the information specified in the application requirements and address the selection criteria that reviewers use to evaluate your application. It does not include 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.

    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. Submission of Proprietary Information:

    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 Dates and Times:

    Applications Available: April 26, 2016.

    Deadline for Notice of Intent to Apply: May 26, 2016.

    Note:

    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 Other Submission Requirements in section IV of this notice.

    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 For Further Information Contact in section VII of this notice. If the Department provides an accommodation or auxiliary aid to an individual with a disability in connection with the application process, the individual's application remain subject to all other requirements and limitations in this notice.

    Deadline for Intergovernmental Review: August 24, 2016. 4. Intergovernmental