Federal Register Vol. 81, No.87,

Federal Register Volume 81, Issue 87 (May 5, 2016)

Page Range26997-27294
FR Document

81_FR_87
Current View
Page and SubjectPDF
81 FR 27291 - Continuation of the National Emergency With Respect to Actions of the Government of SyriaPDF
81 FR 27180 - In the Matter of Solarbrook Water and Power Corp.; Order of Suspension of TradingPDF
81 FR 27175 - Sunshine Act MeetingPDF
81 FR 27177 - Temporary Emergency Committee of the Board of Governors; Sunshine Act MeetingPDF
81 FR 27088 - Large Power Transformers From the Republic of Korea: Amended Final Results of Antidumping Duty Administrative Review; 2013-2014PDF
81 FR 27098 - Certain Carbon and Alloy Steel Cut-to-Length Plate From Brazil, the People's Republic of China, and the Republic of Korea: Initiation of Countervailing Duty InvestigationsPDF
81 FR 27089 - Certain Carbon and Alloy Steel Cut-To-Length Plate From Austria, Belgium, Brazil, France, the Federal Republic of Germany, Italy, Japan, the Republic of Korea, the People's Republic of China, South Africa, Taiwan, and the Republic of Turkey: Initiation of Less-Than-Fair-Value InvestigationsPDF
81 FR 27085 - Foreign-Trade Zone (FTZ) 76-Bridgeport, Connecticut; Notification of Proposed Production Activity; ASML US, Inc., (Optical, Metrology, and Lithography System Modules), Newtown and Wilton, ConnecticutPDF
81 FR 27087 - Polyethylene Retail Carrier Bags From Indonesia, Malaysia, the People's Republic of China, Taiwan, Thailand, and the Socialist Republic of Vietnam: Continuation of Antidumping Duty Orders and Countervailing Duty OrderPDF
81 FR 27217 - Open Meeting of the Federal Advisory Committee on InsurancePDF
81 FR 27214 - Open Meeting of the Taxpayer Advocacy Panel Taxpayer Communications Project CommitteePDF
81 FR 27194 - Open Meeting of the Taxpayer Advocacy Panel Special Projects CommitteePDF
81 FR 27215 - Open Meeting of the Taxpayer Advocacy Panel Tax Forms and Publications Project CommitteePDF
81 FR 27194 - Open Meeting of the Taxpayer Advocacy Panel Taxpayer Assistance Center Improvements Project CommitteePDF
81 FR 27194 - Open Meeting of the Taxpayer Advocacy Panel Joint CommitteePDF
81 FR 27214 - Open Meeting of the Taxpayer Advocacy Panel Notices and Correspondence Project CommitteePDF
81 FR 27216 - Proposed Collection; Comment Request for Form 11-CPDF
81 FR 27197 - Proposed Collection; Comment Request for Form 706-APDF
81 FR 27216 - Proposed Collection; Comment Request for Form 8594PDF
81 FR 27195 - Low Income Taxpayer Clinic Grant Program; Availability of 2017 Grant Application PackagePDF
81 FR 27191 - Proposed Information Collection; Comment RequestPDF
81 FR 27196 - Proposed Collection; Comment Request for Form 13920 and 13930PDF
81 FR 27129 - Sulfoxaflor; Receipt of Applications for Emergency Exemption, Solicitation of Public CommentPDF
81 FR 27128 - Chemical Safety Advisory Committee; Notice of Changes to Public Meeting on 1-bromopropanePDF
81 FR 27025 - Butanedioic Acid, 2-sulfo-, C-C9-11-isoalkyl esters, C10-rich, Disodium Salts; Exemption From the Requirement of a TolerancePDF
81 FR 27019 - Fluxapyroxad; Pesticide TolerancesPDF
81 FR 27198 - Quarterly Publication of Individuals, Who Have Chosen To Expatriate, as Required by Section 6039GPDF
81 FR 27015 - Anchorage Regulations; Delaware River, Philadelphia, PAPDF
81 FR 27196 - Open Meeting of the Taxpayer Advocacy Panel Toll-Free Phone Line Project CommitteePDF
81 FR 27173 - Certain Audio Processing Hardware and Software and Products Containing Same: Commission Decision Not To Review an Initial Determination Terminating Dell Inc.; and Termination of the InvestigationPDF
81 FR 27195 - Proposed Collection; Comment Request for Regulation ProjectPDF
81 FR 27214 - Proposed Collection; Comment Request for Regulation ProjectPDF
81 FR 27215 - Proposed Collection; Comment Request for Regulation ProjectPDF
81 FR 27193 - Proposed Collection; Comment Request for Regulation ProjectPDF
81 FR 27191 - Agency Information Collection Activities; Proposals, Submissions, and ApprovalsPDF
81 FR 27130 - Notice of Termination, 10362, First National Bank of Central Florida; Winter Park, FloridaPDF
81 FR 27124 - Charter Renewal of Department of Defense Federal Advisory CommitteesPDF
81 FR 27125 - 36(b)(1) Arms Sales NotificationPDF
81 FR 27011 - Additional Limitation on Suspension of Benefits Applicable to Certain Pension Plans Under the Multiemployer Pension Reform Act of 2014PDF
81 FR 27140 - Agency Information Collection Activities; Proposed Collection; Comment Request; Registration of Food Facilities Under the Public Health Security and Bioterrorism Preparedness and Response Act of 2002PDF
81 FR 27132 - Agency Information Collection Activities: Announcement of Board Approval Under Delegated Authority and Submission to OMBPDF
81 FR 27130 - Agency Information Collection Activities: Announcement of Board Approval Under Delegated Authority and Submission to OMBPDF
81 FR 27122 - 36(b)(1) Arms Sales NotificationPDF
81 FR 27146 - Advisory Committee on Interdisciplinary, Community-Based Linkages: Notice of MeetingPDF
81 FR 27176 - President's Commission on White House Fellowships Advisory Committee: Closed MeetingPDF
81 FR 27186 - Culturally Significant Objects Imported for Exhibition Determinations: “Graphic Masters: Dürer, Rembrandt, Hogarth, Goya, Picasso, R. Crumb” ExhibitionPDF
81 FR 27186 - Culturally Significant Objects Imported for Exhibition Determinations: “Bestowing Beauty: Masterpieces From The Hossein Afshar Collection” ExhibitionPDF
81 FR 27126 - Agency Information Collection Activities; Submission to the Office of Management and Budget for Review and Approval; Comment Request; Part 601 Preferred Lender ArrangementsPDF
81 FR 27083 - Privacy Act of 1974; Amended System of RecordsPDF
81 FR 26997 - Federal Employees' Group Life Insurance Program: Options B and CPDF
81 FR 27128 - Proposed Agency Information CollectionPDF
81 FR 27175 - Comment Request for Information Collection for Form ETA-232, Domestic Agricultural In-Season Wage Report and Form ETA-232A, Wage Survey Interview Record, Extension With RevisionsPDF
81 FR 27134 - Agency Forms Undergoing Paperwork Reduction Act ReviewPDF
81 FR 27143 - Ryan White HIV/AIDS Program Resource and Technical Assistance Center for HIV Prevention and Care for Black MSMPDF
81 FR 27104 - Marine Protected Areas Federal Advisory Committee; Public MeetingPDF
81 FR 27083 - Southern New Mexico Resource Advisory CommitteePDF
81 FR 27130 - Notice to All Interested Parties of the Termination of the Receivership of 10010, First Priority Bank, Bradenton, FloridaPDF
81 FR 27167 - Endangered and Threatened Wildlife and Plants; Permit Applications; CorrectionPDF
81 FR 27143 - Recruitment of Sites for Assignment of Corps Personnel Obligated Under the National Health Service Corps Scholarship ProgramPDF
81 FR 27173 - Notice To Extend the Public Comment Period and Change Point of Contact for the Draft Environmental Impact Statement for the Continued Implementation of the 2008 Operating Agreement for the Rio Grande Project, New Mexico and TexasPDF
81 FR 27138 - Administration for Native Americans; Notice of MeetingPDF
81 FR 27055 - Airworthiness Directives; Bell Helicopter TextronPDF
81 FR 27149 - Announcement of National Customs Automation Program (NCAP) Test Concerning the Submission Through the Automated Commercial Environment (ACE) of Certain Import Data and Documents Required by the U.S. Fish and Wildlife ServicePDF
81 FR 27170 - Endangered Species; Marine Mammals; Emergency Exemption; Issuance of PermitsPDF
81 FR 27169 - Endangered Species; Receipt of Applications for PermitPDF
81 FR 27130 - Formations of, Acquisitions by, and Mergers of Bank Holding CompaniesPDF
81 FR 27166 - Endangered and Threatened Wildlife and Plants; Draft Recovery Plan for Winkler Cactus and San Rafael CactusPDF
81 FR 27172 - Filing of Plats of Survey: Oregon/WashingtonPDF
81 FR 27176 - Proposal Review; Notice of MeetingsPDF
81 FR 27145 - Providing Support for the Collaborative Improvement and Innovation Network (CoIIN) To Reduce Infant MortalityPDF
81 FR 27127 - Agency Information Collection Activities; Submission to the Office of Management and Budget for Review and Approval; Comment Request; Streamlined Clearance Process for Discretionary GrantsPDF
81 FR 27138 - Proposed Information Collection Activity; Comment RequestPDF
81 FR 27139 - Proposed Information Collection Activity; Comment RequestPDF
81 FR 27165 - Housing Trust Fund Federal Register Allocation NoticePDF
81 FR 27136 - Proposed Data Collection Submitted for Public Comment and RecommendationsPDF
81 FR 27174 - Notice of Lodging of Proposed Consent Decree Under the Comprehensive Environmental Response, Compensation, and LiabilityPDF
81 FR 27171 - Proposed Renewal of Information Collection: OMB Control Number 1084-0033, Private Rental SurveyPDF
81 FR 27104 - Privacy Act of 1974, as AmendedPDF
81 FR 27177 - Product Change-Priority Mail and First-Class Package Service Negotiated Service AgreementPDF
81 FR 27177 - Product Change-First-Class Package Service Negotiated Service AgreementPDF
81 FR 27178 - Product Change-Priority Mail Negotiated Service AgreementPDF
81 FR 27157 - Mississippi; Amendment No. 3 to Notice of a Major Disaster DeclarationPDF
81 FR 27177 - Product Change-Priority Mail Negotiated Service AgreementPDF
81 FR 27156 - Mississippi; Amendment No. 4 to Notice of a Major Disaster DeclarationPDF
81 FR 27154 - Mississippi; Amendment No. 5 to Notice of a Major Disaster DeclarationPDF
81 FR 27165 - Texas; Amendment No. 4 to Notice of a Major Disaster DeclarationPDF
81 FR 27172 - Exxon Valdez Oil Spill Public Advisory CommitteePDF
81 FR 27158 - Louisiana; Amendment No. 7 to Notice of a Major Disaster DeclarationPDF
81 FR 27153 - Iowa; Amendment No. 4 to Notice of a Major Disaster DeclarationPDF
81 FR 27176 - Product Change-Priority Mail Negotiated Service AgreementPDF
81 FR 27157 - Nebraska; Amendment No. 4 to Notice of a Major Disaster DeclarationPDF
81 FR 27154 - Texas; Major Disaster and Related DeterminationsPDF
81 FR 27155 - Final Flood Hazard DeterminationsPDF
81 FR 27158 - Proposed Flood Hazard DeterminationsPDF
81 FR 27156 - Final Flood Hazard DeterminationsPDF
81 FR 27159 - Assistance to Firefighters Grant Program; Fire Prevention and Safety GrantsPDF
81 FR 27006 - Fisheries Off West Coast States; Pacific Coast Groundfish Fishery Management Plan; Trawl Rationalization Program; Flow Scale RequirementsPDF
81 FR 27178 - Sunshine Act Meeting; Additional ItemPDF
81 FR 27181 - Self-Regulatory Organizations; The Depository Trust Company; National Securities Clearing Corporation; Notice of Filing of and No Objection to Advance Notices To Renew the Credit FacilityPDF
81 FR 27184 - Self-Regulatory Organizations; NYSE MKT LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Amending Rule 967.1NY Regarding Price Protection for Market Maker QuotesPDF
81 FR 27178 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Amending Rule 6.61 Regarding Price Protection for Market Maker QuotesPDF
81 FR 27147 - Center for Scientific Review: Amended Notice of MeetingPDF
81 FR 27148 - Center for Scientific Review: Notice of Closed MeetingsPDF
81 FR 27054 - Notice of Opportunity To Submit a Petition To Amend the Rule Establishing Procedures for Requests for Correction of Errors in RulesPDF
81 FR 27067 - A Labeling Guide for Restaurants and Retail Establishments Selling Away-From-Home Foods-Part II (Menu Labeling Requirements in Accordance With the Patient Protection Affordable Care Act of 2010); Guidance for Industry; AvailabilityPDF
81 FR 27148 - National Institute of Arthritis and Musculoskeletal and Skin Diseases; Notice of MeetingPDF
81 FR 27147 - National Institute on Aging; Notice of Closed MeetingPDF
81 FR 27147 - National Heart, Lung, and Blood Institute Notice of Closed MeetingPDF
81 FR 27017 - Approval and Promulgation of Implementation Plans; Idaho: Interstate Transport Requirements for the 2010 Nitrogen Dioxide National Ambient Air Quality StandardsPDF
81 FR 27069 - United States Rail Service Issues-Performance Data ReportingPDF
81 FR 27261 - Sentencing Guidelines for United States CourtsPDF
81 FR 27059 - Implementation of the NICS Improvement Amendments Act of 2007PDF
81 FR 27107 - National Environmental Policy Act Implementing ProceduresPDF
81 FR 27187 - Revision of Thirteen Controlling Criteria for Design and Documentation of Design ExceptionsPDF
81 FR 27030 - Refuge-Specific Regulations; Public Use; Kenai National Wildlife RefugePDF
81 FR 27057 - Airworthiness Directives; Airbus Helicopters Deutschland GmbH HelicoptersPDF
81 FR 27219 - Energy Conservation Program: Test Procedures for CompressorsPDF
81 FR 27283 - Privacy Act of 1974; Systems of RecordsPDF
81 FR 27288 - Privacy Act of 1974; ImplementationPDF
81 FR 27049 - Revision of Regulations Governing Freedom of Information Act Requests and Appeals, and Revision of Touhy Regulations Governing Release of Information in Response to Legal ProceedingsPDF
81 FR 26998 - Energy Conservation Program: Establishment of Procedures for Requests for Correction of Errors in RulesPDF

Issue

81 87 Thursday, May 5, 2016 Contents Agriculture Agriculture Department See

Forest Service

Consumer Financial Protection Bureau of Consumer Financial Protection NOTICES Privacy Act; Systems of Records, 27104-27106 2016-10501 Centers Disease Centers for Disease Control and Prevention NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 27134-27137 2016-10507 2016-10534 Children Children and Families Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 2016-10509 27138-27139 2016-10510 Meetings: Administration for Native Americans, 27138 2016-10525 Coast Guard Coast Guard RULES Anchorage Regulations: Delaware River, Philadelphia, PA, 27015-27017 2016-10577 Commerce Commerce Department See

Foreign-Trade Zones Board

See

International Trade Administration

See

National Oceanic and Atmospheric Administration

NOTICES Privacy Act; Systems of Records, 27083-27085 2016-10541
Defense Department Defense Department NOTICES Arms Sales, 27122-27126 2016-10562 2016-10551 Charter Renewals: Federal Advisory Committees, 27124-27125 2016-10563 National Environmental Policy Act Implementing Procedures, 27107-27122 2016-10376 Education Department Education Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Preferred Lender Arrangements, 27126-27127 2016-10544 Streamlined Clearance Process for Discretionary Grants, 27127-27128 2016-10512 Employment and Training Employment and Training Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Domestic Agricultural In-Season Wage Report, and Wage Survey Interview Record, 27175-27176 2016-10536 Energy Department Energy Department RULES Energy Conservation Programs: Establishment of Procedures for Requests for Correction of Errors in Rules, 26998-27006 2016-03190 PROPOSED RULES Energy Conservation Program: Test Procedures for Compressors, 27220-27260 2016-10170 Opportunity to Submit a Petition to Amend the Rule Establishing Procedures for Requests for Correction of Errors in Rules, 27054 2016-10463 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 27128 2016-10537 Environmental Protection Environmental Protection Agency RULES Air Quality State Implementation Plans; Approvals and Promulgations: Idaho: Interstate Transport Requirements for the 2010 Nitrogen Dioxide National Ambient Air Quality Standards, 27017-27019 2016-10452 Exemption from the Requirement of a Tolerance: Butanedioic acid, 2-sulfo-, C-C9-11-isoalkyl esters, C10-rich, disodium salts, 27025-27030 2016-10582 Pesticide Tolerances: Fluxapyroxad, 27019-27025 2016-10581 NOTICES Emergency Exemptions; Applications: Sulfoxaflor, 27129-27130 2016-10584 Meetings: Chemical Safety Advisory Committee; Notice of Changes to Public Meeting on 1-bromopropane, 27128 2016-10583 Federal Aviation Federal Aviation Administration PROPOSED RULES Airworthiness Directives: Airbus Helicopters Deutschland GmbH Helicopters, 27057-27059 2016-10285 Bell Helicopter Textron, 27055-27057 2016-10523 Federal Deposit Federal Deposit Insurance Corporation NOTICES Receiverships; Terminations: 10362, First National Bank of Central Florida, Winter Park, FL, 27130 2016-10569 First Priority Bank, Bradenton, FL, 27130 2016-10530 Federal Emergency Federal Emergency Management Agency NOTICES Assistance to Firefighters Grant Program: Fire Prevention and Safety Grants, 27159-27164 2016-10481 Final Flood Hazard Determinations, 27155-27157 2016-10482 2016-10486 Major Disaster Declarations: Iowa; Amendment No. 4, 27153-27154 2016-10490 Louisiana; Amendment No. 7, 27158 2016-10491 Mississippi; Amendment No. 3, 27157 2016-10497 Mississippi; Amendment No. 4, 27156 2016-10495 Mississippi; Amendment No. 5, 27154 2016-10494 Nebraska; Amendment No. 4, 27157-27158 2016-10488 Texas, 27154 2016-10487 Texas; Amendment No. 4, 27165 2016-10493 Proposed Flood Hazard Determinations, 27158-27159 2016-10484 Federal Highway Federal Highway Administration NOTICES Revision of Thirteen Controlling Criteria for Design and Documentation of Design Exceptions, 27187-27191 2016-10299 Federal Reserve Federal Reserve System NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 27130-27134 2016-10557 2016-10558 Formations of, Acquisitions by, and Mergers of Bank Holding Companies, 27130 2016-10518 Fish Fish and Wildlife Service RULES Refuge-Specific Regulations; Public Use: Kenai National Wildlife Refuge, 27030-27048 2016-10288 NOTICES Endangered and Threatened Wildlife and Plants: Permit Applications; Correction, 27167-27168 2016-10528 Recovery Plan for Winkler Cactus and San Rafael Cactus, 27166-27167 2016-10517 Endangered Species; Permits, 27169-27170 2016-10519 Endangered Species; Permits: Marine Mammals; Emergency Exemption, 27170-27171 2016-10520 Food and Drug Food and Drug Administration PROPOSED RULES Guidance: Labeling Guide for Restaurants and Retail Establishments Selling Away-From-Home Foods: Part II (Menu Labeling Requirements in Accordance with the Patient Protection Affordable Care Act of 2010), 27067-27068 2016-10462 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Registration of Food Facilities under the Public Health Security and Bioterrorism Preparedness and Response Act, 27140-27143 2016-10559 Foreign Trade Foreign-Trade Zones Board NOTICES Proposed Production Activities: Foreign-Trade Zone 76 - Bridgeport, CT, 27085-27086 2016-10626 Forest Forest Service NOTICES Meetings: Southern New Mexico Resource Advisory Committee, 27083 2016-10531 Health and Human Health and Human Services Department See

Centers for Disease Control and Prevention

See

Children and Families Administration

See

Food and Drug Administration

See

Health Resources and Services Administration

See

National Institutes of Health

Health Resources Health Resources and Services Administration NOTICES Deviation from Competition Requirements: Ryan White HIV/AIDS Program Resource and Technical Assistance Center for HIV Prevention and Care for Black MSM, 27143 2016-10533 Meetings: Advisory Committee on Interdisciplinary, Community-Based Linkages, 27146-27147 2016-10550 Providing Support for the Collaborative Improvement and Innovation Network to Reduce Infant Mortality, 27145-27146 2016-10514 Recruitment of Sites for Assignment of Corps Personnel Obligated under the National Health Service Corps Scholarship Program, 27143-27145 2016-10527 Homeland Homeland Security Department See

Coast Guard

See

Federal Emergency Management Agency

See

U.S. Customs and Border Protection

Housing Housing and Urban Development Department NOTICES Housing Trust Fund Allocations, 27165-27166 2016-10508 Interior Interior Department See

Fish and Wildlife Service

See

Land Management Bureau

See

Reclamation Bureau

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Private Rental Survey, 27171-27172 2016-10502 Requests for Nominations: Exxon Valdez Oil Spill Public Advisory Committee, 27172 2016-10492
Internal Revenue Internal Revenue Service RULES Additional Limitation on Suspension of Benefits Applicable to Certain Pension Plans under the Multiemployer Pension Reform Act, 27011-27015 2016-10560 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 2016-10570 27191-27198, 27214-27217 2016-10571 2016-10572 2016-10573 2016-10574 2016-10586 2016-10587 2016-10604 2016-10605 2016-10606 Low Income Taxpayer Clinic Grant Program 2017 Application Package, 27195-27196 2016-10603 Meetings: Taxpayer Advocacy Panel Joint Committee, 27194 2016-10615 Taxpayer Advocacy Panel Notices and Correspondence Project Committee, 27214 2016-10614 Taxpayer Advocacy Panel Special Projects Committee, 27194-27195 2016-10618 Taxpayer Advocacy Panel Tax Forms and Publications Project Committee, 27215-27216 2016-10617 Taxpayer Advocacy Panel Taxpayer Assistance Center Improvements Project Committee, 27194 2016-10616 Taxpayer Advocacy Panel Taxpayer Communications Project Committee, 27214-27215 2016-10619 Taxpayer Advocacy Panel Toll-Free Phone Line Project Committee, 27196 2016-10576 Quarterly Publication of Individuals, Who Have Chosen to Expatriate, as Required by Section 6039G, 27198-27214 2016-10578 International Trade Adm International Trade Administration NOTICES Antidumping or Countervailing Duty Investigations, Orders, or Reviews: Certain Carbon and Alloy Steel Cut-To-Length Plate from Austria, Belgium, Brazil, France, the Federal Republic of Germany, Italy, Japan, the Republic of Korea, the People's Republic of China, South Africa, Taiwan, and the Republic of Turkey, 27089-27098 2016-10627 Certain Carbon and Alloy Steel Cut-to-Length Plate from Brazil, the People's Republic of China, and the Republic of Korea, 27098-27104 2016-10631 Large Power Transformers from the Republic of Korea, 27088-27089 2016-10632 Polyethylene Retail Carrier Bags from Indonesia, Malaysia, the People's Republic of China, Taiwan, Thailand, and the Socialist Republic of Vietnam, 27087-27088 2016-10625 International Trade Com International Trade Commission NOTICES Investigations; Determinations, Modifications, and Rulings, etc.: Dell Inc.: Certain Audio Processing Hardware and Software and Products Containing Same, 27173-27174 2016-10575 Justice Department Justice Department See

Parole Commission

PROPOSED RULES Privacy Act; Implementation, 27288-27290 2016-10119 NOTICES Privacy Act; Systems of Records, 27284-27287 2016-10120 Proposed Consent Decrees under CERCLA, 27174-27175 2016-10503
Labor Department Labor Department See

Employment and Training Administration

Land Land Management Bureau NOTICES Plats of Surveys: Oregon/Washington, 27172-27173 2016-10516 National Institute National Institutes of Health NOTICES Meetings: Center for Scientific Review, 27148-27149 2016-10465 Center for Scientific Review; Correction, 27147 2016-10466 National Arthritis and Musculoskeletal and Skin Diseases, 27148 2016-10459 National Heart, Lung, and Blood Institute, 27147-27148 2016-10456 National Institute on Aging, 2016-10457 27147 2016-10458 National Oceanic National Oceanic and Atmospheric Administration RULES Fisheries off West Coast States: Pacific Coast Groundfish Fishery Management Plan; Trawl Rationalization Program; Flow Scale Requirements, 27006-27011 2016-10476 NOTICES Meetings: Marine Protected Areas Federal Advisory Committee, 27104 2016-10532 National Science National Science Foundation NOTICES Meetings: Proposal Reviews, 27176 2016-10515 Office Special Office of the Special Counsel PROPOSED RULES Freedom of Information Act Requests and Touhy Regulations Governing Release of Information in Response to Legal Proceedings, 27049-27054 2016-09799 Parole Parole Commission NOTICES Meetings; Sunshine Act, 2016-10654 27175 2016-10655 Personnel Personnel Management Office RULES Federal Employees' Group Life Insurance Program: Options B and C, 26997-26998 2016-10539 NOTICES Meetings: President's Commission on White House Fellowships Advisory Committee, 27176 2016-10549 Postal Service Postal Service NOTICES Meetings; Sunshine Act, 27177 2016-10639 Product Changes: First-Class Package Service Negotiated Service Agreement, 27177 2016-10499 Priority Mail and First-Class Package Service Negotiated Service Agreement, 27177 2016-10500 Priority Mail Negotiated Service Agreement, 2016-10480 27176-27178 2016-10485 2016-10489 2016-10496 2016-10498 Presidential Documents Presidential Documents ADMINISTRATIVE ORDERS Syria; Continuation of National Emergency (Notice of May 3, 2016), 27291-27294 2016-10771 Reclamation Reclamation Bureau NOTICES Environmental Impact Statements; Availability, etc.: Continued Implementation of the 2008 Operating Agreement for the Rio Grande Project, New Mexico and Texas, 27173 2016-10526 Securities Securities and Exchange Commission NOTICES Meetings; Sunshine Act, 27178 2016-10474 Self-Regulatory Organizations; Proposed Rule Changes: Depository Trust Co., 27181-27183 2016-10473 NYSE Arca, Inc., 27178-27180 2016-10471 NYSE MKT, LLC, 27184-27186 2016-10472 Suspension of Trading Orders: Solarbrook Water and Power Corp., 27180 2016-10677 Social Social Security Administration PROPOSED RULES Implementation of the NICS Improvement Amendments Act of 2007, 27059-27067 2016-10424 State Department State Department NOTICES Culturally Significant Objects Imported for Exhibition: Bestowing Beauty: Masterpieces from the Hossein Afshar Collection, 27186 2016-10547 Graphic Masters: Durer, Rembrandt, Hogarth, Goya, Picasso, R. Crumb, 27186 2016-10548 Surface Transportation Surface Transportation Board PROPOSED RULES Unites States Rail Service Issues: Performance Data Reporting, 27069-27082 2016-10442 Transportation Department Transportation Department See

Federal Aviation Administration

See

Federal Highway Administration

Treasury Treasury Department See

Internal Revenue Service

NOTICES Meetings: Federal Advisory Committee on Insurance, 27217 2016-10621
Customs U.S. Customs and Border Protection NOTICES National Customs Automation Program Tests: Submission through the Automated Commercial Environment of Certain Import Data and Documents Required by the U.S. Fish and Wildlife Service, 27149-27153 2016-10522 U.S. Sentencing United States Sentencing Commission NOTICES Sentencing Guidelines for United States Courts, 27262-27281 2016-10431 Separate Parts In This Issue Part II Energy Department, 27220-27260 2016-10170 Part III United States Sentencing Commission, 27262-27281 2016-10431 Part IV Justice Department, 27284-27290 2016-10119 2016-10120 Part V Presidential Documents, 27291-27294 2016-10771 Reader Aids

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

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

81 87 Thursday, May 5, 2016 Rules and Regulations OFFICE OF PERSONNEL MANAGEMENT 5 CFR Part 870 RIN 3206-AM96 Federal Employees' Group Life Insurance Program: Options B and C 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 amend the Federal Employees' Group Life Insurance (FEGLI) regulation to provide a second reduction election opportunity for annuitants and compensationers enrolled in FEGLI Option B and Option C. This new procedure replaces the procedure by which FEGLI enrollees elect the allowable multiples of coverage they wish to continue during retirement or while receiving compensation.

DATES:

Effective May 5, 2016.

ADDRESSES:

Send written comments to Ronald Brown, Planning and Policy Analysis, U.S. Office of Personnel Management, Room 4312, 1900 E Street NW., Washington, DC 20415. You may also submit comments using the Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.

FOR FURTHER INFORMATION CONTACT:

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

SUPPLEMENTARY INFORMATION:

On October 30, 1998, Public Law 105-311,112 Stat. 2950, was signed into law. This law, the Federal Employees Life Insurance Improvement Act, changed many parts of the FEGLI Program. Before the enactment of Public Law 105-311, Option B and C coverage began to reduce for annuitants when they reached age 65. Both coverages reduced by 2% per month until there was no coverage left. This reduction was automatic, and annuitants had no choice.

Public Law 105-311 allows annuitants and persons becoming insured as compensationers to make an election at retirement as to whether they want their Option B and Option C coverage to reduce.

Previous FEGLI regulations provided that shortly before an individual's 65th birthday, he/she would receive a reminder notice, showing what reduction the annuitant/compensationer elected at the time of retirement and what the premiums would be for coverage beyond age 65. The individual then had an opportunity to change his/her reduction election; including choosing to have some multiples of Optional insurance reduce and others not reduce. For persons who were already over age 65 at the time of retirement or becoming insured as a compensationer, the reminder notice was sent as soon as the retirement processing was completed.

On October 1, 2010, OPM published FEGLI final regulations (75 FR 60573) with miscellaneous changes, clarifications, and corrections, including a change made to 5 CFR 870.705(b) and 870.705(d) ending the reduction election opportunity at age 65.

OPM published a FEGLI proposed rule in the Federal Register, 78 FR 77365, December 23, 2013, proposing to reverse the changes to 5 CFR 870.705(b) and 870.705(d) authorized on October 1, 2010, and inviting public comments. The December 23, 2013 rule proposed to restore the second election opportunity for annuitants and compensationers who attain age 65. OPM received no comments and will implement the rule as proposed.

Changes

Public Law 105-311, the Federal Employees Life Insurance Improvement Act, 112 Stat. 2950, enacted October 30, 1998, amended chapter 87 of title 5, U.S. Code, to allow retiring employees to elect either No Reduction or Full Reduction for their Option B and Option C coverage. This election was to be made at the time of retirement, the same as the election for Basic insurance. Implementing this provision required programming changes to the electronic records system for annuitants to allow for “mixed” elections, i.e., electing reductions for some coverage, but not for other coverage. While these system changes were being made, annuitants were required to elect either No Reduction or Full Reduction for all Option B and Option C multiples at the time of retirement. Then, shortly before the annuitant's 65th birthday, the insured was given a second opportunity to make a reduction election, this time being allowed to choose No Reduction for some multiples and Full Reduction for others. While the law states that the reduction election must be made at the time of retirement, enrollees affected by this provision have expressed interest in having a second reduction election opportunity. Thus, we are restoring the opportunity for a second election at age 65. This change can be found in § 870.705(b) and § 870.705(d).

Regulatory Impact Analysis

OPM has examined the impact of this rule as required by Executive Order 12866 and Executive Order 13563, which directs agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public, health, and safety effects, distributive impacts, and equity). A regulatory impact analysis must be prepared for major rules with economically significant effects of $100 million or more in any one year. This rule is not considered a major rule because there will be a minimal impact on costs to Federal agencies.

Regulatory Flexibility Act

I certify that this regulation will not have a significant economic impact on a substantial number of small entities because the regulation only affects life insurance benefits of Federal employees and retirees.

Executive Order 12866, Regulatory Review

This rule has been reviewed by the Office of Management and Budget in accordance with Executive Order 12866.

Federalism

We have examined this rule in accordance with Executive Order 13132, Federalism, and have determined that this rule will not have any negative impact on the rights, roles and responsibilities of State, local, or tribal governments.

List of Subjects in 5 CFR Part 870

Administrative practice and procedure, Government employees, Life insurance, Retirement.

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

Accordingly, OPM is amending 5 CFR part 870 as follows:

PART 870—FEDERAL EMPLOYEES' GROUP LIFE INSURANCE PROGRAM 1. The authority citation for 5 CFR part 870 is revised to read as follows: Authority:

5 U.S.C. 8716; Subpart J also issued under section 599C of Pub. L. 101-513, 104 Stat. 2064, as amended; Sec. 870.302(a)(3)(ii) also issued under section 153 of Pub. L. 104-134, 110 Stat. 1321; Sec. 870.302(a)(3) also issued under sections 11202(f), 11232(e), and 11246(b) and (c) of Pub. L. 105-33, 111 Stat. 251, and section 7(e) of Pub. L. 105-274, 112 Stat. 2419; Sec. 870.302(a)(3) also issued under section 145 of Pub. L. 106-522, 114 Stat. 2472; Secs. 870.302(b)(8), 870.601(a), and 870.602(b) also issued under Pub. L. 110-279, 122 Stat. 2604; Subpart E also issued under 5 U.S.C. 8702(c); Sec. 870.601(d)(3) also issued under 5 U.S.C. 8706(d); Sec. 870.703(e)(1) also issued under section 502 of Pub. L. 110-177, 121 Stat. 2542; Sec. 870.705 also issued under 5 U.S.C. 8714b(c) and 8714c(c); Public Law 104-106, 110 Stat. 521.

Subpart G—Annuitants and Compensationers
2. Amend § 870.705 by revising paragraph (b)(3)(ii), adding paragraph (b)(4), and revising paragraph (d)(1)(i) to read as follows:
§ 870.705 Amount and election of Option B and Option C.

(b) * * *

(3) * * *

(ii) Except as provided in paragraph (b)(4) of this section, after reaching age 65, an annuitant or compensationer cannot change from Full Reduction to No Reduction.

(4)(i) Shortly before an annuitant or compensationer's 65th birthday, an annuitant's retirement system will send a reminder about the post-age-65 reduction election he/she made and will offer the individual a chance to change the initial election made at the time of retirement.

(ii) If the individual is already 65 or older at the time of retirement or becoming insured as a compensationer, the retirement system will process the retirement using the current Continuation of Life Insurance Coverage (SF 2818) on file, send the reminder, and give the opportunity to change the election as soon as the retirement processing or compensation transfer is complete.

(iii) If the individual assigned his/her insurance as provided in subpart I of this part, and if the employee elected No Reduction for Option B coverage at the time of retirement or becoming insured as a compensationer, the retirement system will send the reminder notice for Option B coverage to the assignee.

(iv) An annuitant or compensationer who wishes to change his/her reduction election must return the notice by the end of the month following the month in which the individual turns 65, or if already over age 65, by the end of the 4th month after the date of the letter. An annuitant or compensationer who does not return the election notice will keep his/her initial election or the default election, as applicable.

(d)(1) * * *

(i) Annuitants and compensationers who were under age 65 were notified of the option to elect No Reduction. The retirement system will send these individuals an actual election notice before their 65th birthday, as provided in paragraph (b)(4) of this section.

[FR Doc. 2016-10539 Filed 5-4-16; 8:45 am] BILLING CODE 6325-63-P
DEPARTMENT OF ENERGY 10 CFR Parts 430 and 431 RIN 1904-AD63 Energy Conservation Program: Establishment of Procedures for Requests for Correction of Errors in Rules AGENCY:

Office of Energy Efficiency and Renewable Energy, Department of Energy.

ACTION:

Final rule.

SUMMARY:

The U.S. Department of Energy (“DOE” or the “Department”) is establishing a procedure through which an interested party can, within a 30-day period after DOE posts a rule establishing or amending an energy conservation standard, identify a possible error in such a rule and request that DOE correct the error before the rule is published in the Federal Register.

DATES:

The effective date of this rule is June 6, 2016.

ADDRESSES:

See the companion document titled “Notice of Opportunity to Submit a Petition to Amend the Rule Establishing Procedures for Requests for Correction of Errors in Rules” published elsewhere in this issue of the Federal Register for addresses to submit a petition to amend, or a comment on a petition to amend, this rule.

FOR FURTHER INFORMATION CONTACT:

Mr. John Cymbalsky, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Building Technologies Program, EE-5B, 1000 Independence Avenue SW., Washington, DC 20585-0121. Telephone: (202) 287-1692 or [email protected]

SUPPLEMENTARY INFORMATION:

Table of Contents I. Authority and Background II. Summary of the Rule III. Paragraph-by-Paragraph Analysis IV. Procedural Issues and Regulatory Review I. Authority and Background

Title III of the Energy Policy and Conservation Act of 1975, as amended (“EPCA” or, in context, “the Act”) establishes a program designed to improve the energy efficiency of consumer products (other than automobiles) and of certain industrial equipment. Pursuant to EPCA, the Department sets energy conservation standards and other requirements for covered products and equipment; prescribes protocols to test products and equipment against the standards; requires labeling of covered products and equipment; and establishes procedural mechanisms such as certification programs and enforcement procedures. See 42 U.S.C. 6291, et seq. This rule establishes error-correction procedures that DOE will use in the course of prescribing energy conservation standards under EPCA. It also interprets several provisions of EPCA that may be relevant to the functioning of those procedures.

One of EPCA's many purposes is to improve energy efficiency for a variety of major consumer products and industrial equipment. To achieve this purpose, the Act directs the Department both to undertake certain rulemakings to establish or revise energy conservation standards and to consider amending such standards on a periodic basis—for many products within six years of issuance of a prior final rule. 42 U.S.C. 6295(m)(1). The Act contemplates that such a rulemaking or periodic review will result in a new or amended standard if the Department concludes that such standard would be technologically feasible and economically justified and would result in significant conservation of energy. The Act also bars DOE from “prescrib[ing] any amended standard which increases the maximum allowable energy use . . . or decreases the minimum required energy efficiency” of a covered product. 42 U.S.C. 6295(o)(1). This prohibition against “backsliding,” together with the periodic reviews just described, has the effect over the long term of gradually increasing the energy efficiency of regulated products and equipment.

The process of developing an amendment to an energy conservation standard ordinarily involves extensive technical analyses and voluminous amounts of data. The Department weighs a range of competing technological and economic considerations, such as the feasibility and cost of various energy-saving technologies, the effects of implementing those technologies in products on the market, and the need for national energy and water conservation. It must make predictive judgments regarding the expected effect of its standards over decades, in part because compliance with a standard is usually required a few years out from the rulemaking and in part because many products have decades of useful life. Meanwhile, the drafting of an energy conservation standard on its own (separate from the deliberation involved in selecting the standard) involves substantial technical analysis. In short, an energy conservation standards rulemaking is usually a highly complicated undertaking.

In light of all the considerations described in this preamble, DOE also recognizes that, given the complexity of these rules, it is conceivable that a standards regulation, as issued, may occasionally contain an error. For example, an accidental transposition of digits could result in a standard that is inconsistent with the Department's analysis. Often, it will be evident from the full context what standard DOE intended to set, but the text of a regulation, even if erroneous, has legal effect. Moreover, should such an error go uncorrected for too long, there is a risk that the Department would be unable to undo it because of the limitations on reducing the stringency of its standards. Meanwhile the relevant industries would face uncertainty about the standard, as well as some difficult choices—whether to comply with it, hope that the error is addressed sometime later, or challenge it in court. The process established by this document is meant to avoid undesirable outcomes like these by providing interested parties with an opportunity to timely point out errors to DOE and request that DOE correct them.

II. Summary of the Rule

This rule establishes DOE's procedures for accepting error-correction requests for its energy conservation standards rules. Specifically, after issuing an energy conservation standards rule subject to this process, the Department will not publish that rule in the Federal Register for 30 days. This 30-day period begins upon the posting of the rule on a publicly-accessible Web site. During the 30-day window, interested parties can review it, including the regulatory text which is to be placed in the Code of Federal Regulations. If, during this period, a party (as defined in this rule) identifies an error in the regulatory text, that party can submit a request that DOE correct the error. An error-correction request must identify the claimed error, explain how the record demonstrates the regulatory text to be erroneous, and state what the corrected version should be.1

1 This error-correction process would not supplant or otherwise replace the error correction process established under 1 CFR Chapter 1 applicable generally to all documents published in the Federal Register.

The error-correction process is not an opportunity to submit new evidence or comment on the rule, seek to reopen issues that DOE has already addressed or argue for policy choices different from those reflected in the final rule. DOE will not accept new evidence included in or with error-correction requests, and a submitter must rest its explanation solely on the materials already in the record. The Department posts a rule with the appropriate official's signature only after concluding its deliberations and reaching decisions on the relevant factual determinations and policy choices. Consistent with this approach, the Department considers the record with respect to a rule subject to the error correction process closed upon posting of the rule.

After reviewing error-correction requests meeting the criteria set out in this rule, the Department will have a range of options with respect to a rule. If it concludes that the claims of error are not valid, and if it has identified no errors on its own, DOE will proceed to submit the rule for publication in the Federal Register in the same form it was previously posted. By doing so, the Department will effectively be rejecting any error-correction requests it has received; DOE will ordinarily not respond directly to a requester or provide additional notice regarding the request. If, on the other hand, DOE identifies an error in a rule, DOE can correct the error.

As noted in this preamble, in some circumstances, an error may lead the standard contained in DOE's regulation, as originally posted, to require higher energy efficiency or lower energy use than the Department intended based on the record and its deliberations. Correcting such an error through the process established by this rule would not be inconsistent with section 325(o)(1) (or its analogs applicable to certain types of product or equipment). The error-correction process occurs during a window between DOE's posting of a rule and publication of the rule in the Federal Register. As discussed more fully below, DOE interprets section 325(o)(1) and its analogs to permit corrections of a rule that has not yet been published in the Federal Register.

III. Paragraph-by-Paragraph Analysis

The following discussion describes the provisions of this rule in detail, so as to explain further how the error-correction process will work.

§ 430.5(a): Scope and Purpose

This section describes the purpose of this rule. Consistent with the discussion in this preamble, the rule describes procedures through which the Department will accept and consider submissions regarding possible errors in its standards rules. The section also states the scope of the rule. DOE will apply the procedures described in the rule to those rulemakings establishing or amending energy conservation standards under EPCA. “Energy conservation standard” is a term defined in EPCA, although it has a slightly different definition for consumer products and commercial equipment. With respect to the former, an “energy conservation standard” is generally a performance standard that prescribes a minimum efficiency level or maximum quantity of energy usage for a covered product or, in certain instances, a design requirement. See 42 U.S.C. 6291(6).

Similarly, for commercial equipment, an “energy conservation standard” is a performance standard prescribing a minimum level of energy efficiency or a maximum quantity of energy use for the covered equipment at issue or a design requirement. See 42 U.S.C. 6311(18).

When the Department posts a rule establishing or amending an energy conservation standard, per the statutory definition, for a given type of product or equipment, the Department will engage in the error-correction process established by this rule.

DOE undertakes a variety of other rulemakings under the Act, such as rules to set test procedures, requirements for labeling or certification, and procedures for enforcement. DOE will not routinely utilize this error-correction process for such rules. The Department recognizes the importance of correcting errors in any of its rules, and consistent with the principles of good government, it intends to be responsive to input from members of the public that point out such errors. However, the combination of features described in this preamble—the regular occurrence of high complexity, potentially large significance of the rules, and the possibility that uncorrected errors will have unavoidable long-term consequences—is specific, for rules under the Act, to energy conservation standards. Therefore, the Department considers it appropriate to implement a routine error-correction mechanism only for such rules.

This rule also excludes from its scope any energy conservation standards that DOE sets by issuing direct final rules pursuant to section 325(p)(4) (42 U.S.C. 6295(p)(4)) of EPCA. Section 325(p)(4) allows the Department to set an energy conservation standard, in some circumstances, by issuing a direct final rule. Before doing so, DOE must receive “a statement that is submitted jointly by interested persons that are fairly representative of relevant points of view,” and the Department must determine that the recommended standard is “in accordance with” either section 325(o) or section 342(a)(6)(B) (i.e., 42 U.S.C. 6313(a)(6)(B)) as appropriate depending on the product or equipment at issue. 42 U.S.C. 6295(p)(4). Together with issuing a direct final rule, DOE must publish a notice of proposed rulemaking proposing a standard identical to that established in the direct final rule, and DOE must allow a period of at least 110 days for public comment on the direct final rule. See 42 U.S.C. 6295(p)(4)(B). If the Department receives one or more adverse comments related to the rule and concludes that the comments “may provide a reasonable basis for withdrawing the direct final rule,” the Department can withdraw the direct final rule and proceed with the proposed rule. A withdrawn rule “shall not be considered to be a final rule for purposes of [section 325(o)].” 42 U.S.C. 6295(p)(4)(C)(iii).

DOE notes that, as a practical matter, the mechanisms of the direct final rule process provide an opportunity for correcting errors that is at least as effective as what this rule achieves. If a direct final rule contains an error, the public has an opportunity to identify that error through the comment process provided by statute and any error that a person would have identified during the 30-day window set by this rule could also be identified in the 110-day comment period required by EPCA. See 42 U.S.C. 6295(p)(4)(B). The Department's options for responding to a claim of error in a direct final rule are essentially equivalent to what this rule provides for other standards rules. Absent an error (and if there is no other reason to withdraw the rule), the Department can let a direct final rule stand as-is. Should there be an error, DOE can withdraw the direct final rule. It can then issue a final rule that is based on the notice of proposed rulemaking and avoid the error.

Moreover, withdrawing a direct final rule and replacing it with a final rule based on the associated proposal would not violate section 325(o) even if the change resulted in a lower standard. The direct final rule procedure enacted by Congress is a unique one that provides DOE with the authority to withdraw a direct final rule when certain conditions are met. See 42 U.S.C. 6295(p)(4)(C). Accordingly, that specific procedure already provides a means for DOE to address an error if one is identified.

In sum, the statutory mechanisms for direct final rules permit the correction of errors in a manner similar to what this rule lays out for other EPCA standards rules. Accordingly, the Department considers it unnecessary to apply this particular error-correction process to direct final rules.

§ 430.5(b): Definitions

This paragraph sets forth several definitions that clarify the meaning of this section and the application of the error-correction process.

DOE is defining the term, “Secretary,” as referring to the Secretary of Energy or the Secretary's delegate.

The term, “Act,” under this rule means the Energy Policy and Conservation Act, as amended.

The term, “Error” for purposes of this rule is defined as an aspect of the regulatory text of a rule that is inconsistent with what the Secretary intended regarding the rule at the time of posting. The “regulatory text,” for these purposes, means the material that is to be placed in the Code of Federal Regulations (“CFR”), together with the amendatory instructions by which the rule communicates what should go in the CFR. In most cases, the Department encapsulates everything about a rule that is legally binding by setting forth specific text in the CFR. The point of the error-correction process is to avoid the harmful consequences of errors in that legally binding material. Errors in explanatory material or interpretive matter in the preamble of a rule may be important, but they can ordinarily be corrected without use of a procedure like the one established by this rule (e.g., issuing a correction notice to clarify or otherwise resolve an error without the need for notice and comment.)

The definition provides illustrative examples of mistakes that might produce Errors. For example, a typographical mistake might cause the text of a regulation to be incorrect; suppose, for example, the text of the regulation stated a party has 50 days to submit an error-correction request, even though the Department has made clear in the preamble that it intends to allow 30 days. As a second example, a calculation mistake might cause the numerical value of a standard to differ from what DOE's technical analyses would justify. The calculations involved in deriving a standard are complex, which could result in an error that causes the regulatory text to codify a standard different from what DOE described in its preamble. As a third example, an amendment to the relevant portions of the regulations might renumber them, but DOE might overlook a cross-reference in another portion of its regulations, which would then refer to the wrong formula. These examples—and those detailed in the regulatory text—are not meant to be exhaustive but highlight two common features: (1) The regulatory text departs from what DOE intended it to be and (2) the rulemaking record reveals what DOE intended. These are the sorts of problems that the Department seeks to offer the opportunity to correct through this rule.

The term, “Party,” means a person that has participated in a rulemaking by submitting timely comments during the rulemaking or by providing substantive input during a public meeting regarding the rulemaking.

This definition is relevant because, as discussed in this preamble, the Department will accept requests for error-correction under this rule only from a person that is a “party” to the rulemaking proceeding in accordance with this definition. The error-correction process is intended to be rapid and streamlined. By pausing to receive suggestions of error, DOE will be delaying the eventual benefits to be produced by an amended standard. Accordingly, the Department is setting the period for error submissions at 30 calendar days.

In furtherance of expeditious review, these requests must be sufficiently detailed to readily identify and resolve the error. In DOE's view, those persons who actively participated during the rulemaking process by providing the agency with substantive feedback regarding its proposal and analyses are in the best position to readily and quickly identify errors that this rule seeks to address in a timely manner. The complexity and comprehensive nature of these analyses also make it more likely that active participants during the rulemaking proceeding would have the requisite foundation to be able to assist DOE with identifying errors and accompanying solutions. Without this procedural limit, DOE's review of error requests would likely be hampered by overly broad (or otherwise inaccurate) submissions from non-party persons that would hinder the agency's ability to expeditiously address meritorious claims identifying erroneous regulatory text. For these reasons, in DOE's view, it is appropriate to accept submissions only from those persons that have engaged in the rulemaking and are already familiar with the record.

The principal means for participating in a rulemaking proceeding is by submitting written comments in response to a notice. Many of DOE's rulemakings to establish or amend its energy conservation standards involve several rounds of public comment, such as notices of proposed rulemaking and supplemental notices of proposed rulemaking. The Department also occasionally publishes notices of data availability through which it solicits comment on its technical analyses, as well as requests for information in which DOE solicits information from the public regarding particular issues. All of these procedures involve the substance of a rule under consideration, and the Department accordingly considers comment on any of them to be sufficient participation to qualify a person as a party. “Comment,” for these purposes, also includes ex parte submissions, which often represent as much engagement with the issues of a rulemaking as do ordinary comment filings. Similarly, the Department seeks public input by hosting public meetings (both in person and online through webinars), at which it presents some substantive information on a given proposed rule and permits participants to speak. This form of participation can also qualify a person as a party. (The definition of “party” requires “substantive input” at a public meeting. DOE does not intend to judge the substantiality of each participant's statements at a public meeting. By “substantive input,” the Department means simply to exclude merely procedural statements such as a participant's identifying himself or herself for the record.)

It bears emphasis, however, that an untimely or improperly submitted comment—including an ex parte submission made after the close of the relevant comment period—will not qualify the submitter as a “party” for purposes of this rule. While a late-filed comment may address substantive issues raised as part of the relevant energy conservation standards rulemaking, DOE is not obligated to consider late comments when reaching its decisions. For the Department to engage in a case-by-case assessment of whether a given person did in fact submit a comment would be inconsistent with the streamlined nature of the error-correction process. Accordingly, for the sake of administrative simplicity, DOE will not entertain an error-correction request from a person whose only participation in the rulemaking was an untimely or improper submission.

Lastly, for purposes of this error-correction process, DOE is defining a “rule” as a rule establishing or amending an energy conservation standard under the Act. DOE will not apply this rule's error-correction process for documents such as general statements of policy, guidance documents, and interpretive guidelines.

§ 430.5(c): Posting of Rules

This section describes the beginning of the error-correction process. At the outset, DOE will post a rule bearing the signature of an appropriate official of DOE on a publicly-accessible Web site. The record of the rulemaking is closed, and the Department has concluded its deliberations.

However, the Department will not publish the rule in the Federal Register for 30 calendar days. This period of time will allow the public an opportunity to review the rule in order to identify any potential errors and submit a request to DOE to correct such errors. DOE recognizes that it has an obligation under the Administrative Procedure Act to publish a “rule,” as defined in this part, in the Federal Register. The time for error-correction contemplated by this rule will not be a departure from that obligation. The Administrative Procedure Act does not specify that publication in the Federal Register must occur at a particular point following a specified period of time after posting. Meanwhile, as discussed in this preamble, and as is currently the case, no energy conservation standards rule will be effective for some period of time after it has been published in the Federal Register, and the start of the lead-time provided to manufacturers to comply with the standards will begin at publication in the Federal Register. Consequently, the delay in publication in the Federal Register will comply with the Administrative Procedure Act and will not cause prejudice to any interested parties.

§ 430.5(d): Requests for Correction

This section explains how to submit a request that DOE correct an error in a rule and describes what a request must contain.

A request must be submitted within 30 calendar days of the posting of the rule. As discussed in this preamble, the error-correction process is meant to be rapid and streamlined. In undertaking the procedure, DOE must balance the value of being able to correct errors in its regulations against the cost of delay (e.g., delayed energy savings). The Department believes 30 days should be enough time for persons already familiar with a rulemaking to review the text of the regulation being adopted and identify any errors. In light of that assessment and bearing in mind the cost of delay, a longer period would be inappropriate.

A request must identify an Error, as that term is defined in this rule. A request must identify the claimed Error with particularity by stating what text is erroneous and providing a corrected substitute. Because the error-correction process is focused on the regulatory text, an Error will necessarily involve some piece of text that should be changed. DOE expects a party requesting a change to identify specifically what text is mistaken and why, as well as how DOE should change it.

Consistent with the definition of Error, the error-correction process is not an opportunity to dispute the Department's determinations or policy choices. An energy conservation standards rulemaking is usually a lengthy process, in which the Department provides repeated indications of its proposals, stakeholders have multiple opportunities to provide input, and the Department engages in extensive deliberation. To achieve the energy conservation goals of the Act, as well as to minimize uncertainty for industry and consumers, it is important that the issues in a rulemaking come to a resolution. The error-correction process should not undermine the stability of DOE's already well-established energy conservation standards-setting process, because it will simply ensure that the regulatory text accurately reflects the determinations that DOE has already reached. Accordingly, an error-correction request must identify how the regulatory text departs from DOE's decision, rather than criticizing it on the requester's own grounds or reviving issues from comments previously raised and addressed.

As noted, for the sorts of errors for which this process is appropriate, the rulemaking record should indicate what the correct regulatory text ought to be. Consistent with that observation, an error-correction request must base its claims of what DOE intended on materials in the rulemaking record, such as the preamble to the rule, technical support documents, published notices, comments, and other record materials. A request may not include new evidence, as new evidence would not be relevant for illuminating what the Secretary meant for the regulation to say. Given the ample opportunity for comment and other public input during the rulemaking process, in DOE's view, there is a need to bring finality to a given rulemaking and to avoid having an open-ended regulatory process, and, therefore, the agency will not accept new evidence and further defer the energy saving benefits of the energy conservation standards that are the subject of the rulemaking. Meanwhile, the task of evaluating new evidence would require time beyond what is appropriate for the error-correction process.

Because only parties are allowed to file error-correction requests, a submitter must demonstrate that the requester is a “party” in accordance with this rule's definition of that term. The requester must identify the comment(s) or other input that the requester submitted in the course of the rulemaking.

Finally, this rule requires that requests be submitted electronically by email. This rule does not specify an email address to which requests should be sent, as each final rule will specify the appropriate email address for error-correction requests. The Department may consider a filing submitted by another mechanism if email filing is not feasible; a party seeking to use a different mechanism should consult first with the DOE program point of contact identified in the notice of the final rule for further information.

§ 430.5(e): Correction of Rules

This section describes the courses of action that the Department may undertake if it believes a request for correction may have identified an error. DOE may undertake to correct the rule, if doing so would be consistent with the applicable requirements of EPCA and the Administrative Procedure Act. In such cases, DOE will ordinarily make the correction before submitting the rule to the Office of the Federal Register for publication. Publication of the submitted rule will take place pursuant to the ordinary procedures of the Office of the Federal Register.

§ 430.5(f): Publication in the Federal Register

This section describes how the Department will eventually publish a final rule in the Federal Register. If, after 30 calendar days have elapsed since DOE posted a rule subject to this process, DOE receives no proper requests for correction of errors, and identifies no errors on its own, it will simply submit the rule as posted to the Office of the Federal Register for publication. If DOE receives error-correction requests but decides not to undertake any corrections to the rule, it will submit the rule as posted to the Office of the Federal Register for publication. Such submission indicates that the Department has rejected the requests it received, and the Department will ordinarily provide no other response to such requests. Barring extenuating circumstances, the Department will review proper error-correction submissions and submit the rule to the Office of the Federal Register for publication within 30 calendar days after the close of the 30-day period for submitting error-correction requests. Publication of submitted rules will take place in accordance with the ordinary procedures of the Office of the Federal Register.

The Department's rejection of a request does not necessarily mean the claim of error was mistaken. The regulatory text in the posted rule may indeed have been inconsistent with the Department's decision as reflected in the rulemaking record. However, DOE may choose not to correct the regulation because it concludes the regulatory text is nonetheless acceptable; for instance, because it considers the error insignificant.

This section also reiterates certain mandates from EPCA and from the Administrative Procedure Act with respect to publication. DOE will not make any rule subject to this part effective until after DOE has published the rule in the Federal Register. Further, DOE notes that compliance with a new or amended standard is generally linked to a specified lead-time from the date of publication in the Federal Register to provide the affected industries with sufficient time to adjust their products and manufacturing to satisfy the new or amended standard. See, e.g., 42 U.S.C. 6313(f)(4)(B) (providing a lead-time of two to five years for walk-in cooler and freezer performance standards); see also 42 U.S.C. 6295(m)(4) (specifying applicable lead-times for a variety of different consumer products) and 42 U.S.C. 6295(l) (providing that energy conservation standards for newly covered products shall not apply to “products manufactured within five years after the publication of a final rule establishing such standard.”). The Department will adhere to that framework for all rules subject to this part.

§ 430.5(g): Alteration of Standards

This paragraph articulates the Department's conclusion that it may change a standard that it has posted but has not yet published in the Federal Register. A change pursuant to this process is permissible even if the effect of such a change is to increase the maximum energy use or decrease the energy efficiency that the standard would reflect.

The Department interprets section 325(o)(1) (and its analogs applicable to certain types of equipment) to permit this approach. These provisions prohibit DOE from “increas[ing] the maximum allowable energy use” or “decreas[ing] the minimum required energy efficiency.” However, they do not indicate unambiguously what are the relevant maximum “allowable” use and minimum “required” efficiency against which an amended standard should be compared. Applying these terms to refer only to rules published in the Federal Register is consistent with the Act and will further its purposes.

DOE notes that the Act uniformly sets compliance dates based on the “publication” of rules.2 For example, for certain consumer products, compliance with an amended standard is required for products manufactured three years after publication; for others, compliance is required five years after an amended standard is published. 42 U.S.C. 6295(m)(4). “Publication” does not appear to be simply the term used in the Act for producing a rule. For example, EPCA distinguishes issuance from publication by stating that DOE is to begin a rulemaking to review a standard within six years after “issuance”—rather than “publication”—of the standard. 42 U.S.C. 6295(m)(1).

2 Because EPCA involves rulemaking and the APA specifies that substantive rules shall be published in the Federal Register and not effective until they have been, the Department takes “published” in EPCA to refer to publication in the Federal Register.

Thus, “publication,” rather than other steps involved in rulemaking, is the trigger for eventual manufacturer compliance. A manufacturer can lawfully make products that do not meet the amended standards until the compliance date, and until the rule has been published there is not even a date certain at which a manufacturer will have to comply.

Besides being consistent with the text and structure of EPCA, the Department's interpretation furthers the Act's purposes. DOE understands the overall purpose of the Act's standards provisions to be achieving an increase, over time, in the conservation of energy in the United States. Other goals of EPCA include mitigating adverse economic consequences that energy conservation can sometimes cause, and reducing the costs of the changes required to increase conservation. Those goals are revealed in multiple provisions, such as those that set compliance dates several years after publication of amended standards.

If the Department made an error in the regulatory text of a rule, and that error had the effect of increasing a standard beyond what the Department had concluded—after reasoned deliberations—was appropriate, the error-correction process set forth in this document would permit the Department to correct it. For section 325(o) to prohibit that result would undermine the multiple goals of EPCA. Were an erroneous standard to remain in place, its economic costs might be higher than what DOE had concluded could be justified, at that time, by the resulting energy savings or the standard might be technologically infeasible. That outcome would be inconsistent with EPCA's requirement to ensure that a standard be one that the Secretary determines is “economically justified,” and it could itself lead to uncertainty (e.g., legal challenge to the standard), which would be likely to generate further economic costs. And, contrary to the purposes of EPCA identified above, the outcome might include the invalidation of the standard—or the entire final rule—by a court, thereby leaving the Nation with no new standard that would have provided the increased energy savings DOE had intended to provide until completion of a replacement rulemaking by DOE, which could take considerable time. In contrast, the error-correction process set forth in this rule allows DOE to align the text of its regulations with the assessment it has already made of what standard would be appropriate—and ultimately achieve the significant energy savings that the Secretary determines are economically justified and technologically feasible as mandated by the Act. Accordingly, in DOE's view, section 325(o) permits the Department to correct an error in the text of a rule in the manner prescribed in this rule.

§ 430.5(h): Judicial Review

This section clarifies the timing related to a potential petition for review that a person may file pursuant to 42 U.S.C. 6306. The section states that a rule is prescribed on the date of its publication in the Federal Register. Accordingly, for purposes of filing a legal challenge regarding an energy conservation standard rule, the date of publication in the Federal Register must be used when determining whether a given petition for review is timely in accordance with the statute.

IV. Procedural Issues and Regulatory Review A. Administrative Procedure Act

This rule of agency procedure and practice is not subject the requirement to provide prior notice and an opportunity for public comment pursuant to authority at 5 U.S.C. 553(b)(A). The Administrative Procedure Act's exception to the notice-and-comment rulemaking requirement for rules of agency procedure and practice reflects Congress's judgment that such rules typically do not significantly benefit from notice-and-comment procedures, and that judgment is particularly applicable here, where the agency perceives no specific need for notice and comment. In addition, DOE has concluded that seeking comment on this rule would inappropriately divert valuable agency resources from other rulemakings that Congress has directed DOE to complete according to certain statutory timelines.

This rule is also not a substantive rule subject to a 30-day delay in effective date pursuant to 5 U.S.C. 553(d).

B. Review Under Executive Orders 12866 and 13563

This regulatory action is not a “significant regulatory action” under section 3(f) of Executive Order 12866. Accordingly, this action was not subject to review 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). EO 13563 is supplemental to and explicitly reaffirms the principles, structures, and definitions governing regulatory review established in Executive Order 12866. As a result, EO 13563 also does not apply to this rule.

C. Review Under the Regulatory Flexibility Act

The Regulatory Flexibility Act (5 U.S.C. 601, et seq.) requires preparation of an initial regulatory flexibility analysis (IRFA) for any rule that by law must be proposed for public comment, unless the agency certifies that the rule, if promulgated, will not have a significant economic impact on a substantial number of small entities. Because this rule is not subject to the requirement to provide prior notice and an opportunity for public comment, it is not subject to the analytical requirements of the Regulatory Flexibility Act.

D. Review Under the Paperwork Reduction Act

This rule does not contain a collection of information for purposes of the Paperwork Reduction Act.

E. Review Under the National Environmental Policy Act of 1969

DOE has determined that this rule falls into a class of actions that are categorically excluded from review under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and DOE's implementing regulations at 10 CFR part 1021. Specifically, this rule is strictly procedural and is covered by the Categorical Exclusion in 10 CFR part 1021, subpart D, paragraph A6. Accordingly, neither an environmental assessment nor an environmental impact statement is required.

F. Review Under Executive Order 13132

Executive Order 13132, “Federalism,” 64 FR 43255 (Aug. 10, 1999), imposes certain requirements on Federal agencies formulating and implementing policies or regulations that preempt State law or that have Federalism implications. The Executive Order requires agencies to examine the constitutional and statutory authority supporting any action that would limit the policymaking discretion of the States and to carefully assess the necessity for such actions. The Executive Order also requires agencies to have an accountable 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 examined this final rule and determined that it 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. EPCA governs and prescribes Federal preemption of State regulations as to energy conservation for the equipment that are the subject of this final rule. States can petition DOE for exemption from such preemption to the extent, and based on criteria, set forth in EPCA. (42 U.S.C. 6297(d)) No further action is required by Executive Order 13132.

G. 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,” imposes on Federal 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. 61 FR 4729 (Feb. 7, 1996). 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 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 it is unreasonable to meet one or more of them. DOE has completed the required review and determined that, to the extent permitted by law, this rule meets the relevant standards of Executive Order 12988.

H. Review Under the Unfunded Mandates Reform Act of 1995

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) requires each Federal agency to assess the effects of Federal regulatory actions on State, local, and Tribal governments and the private sector. Public Law 104-4, sec. 201 (codified at 2 U.S.C. 1531). For a regulatory action resulting in a rule that may cause the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector of $100 million or more in any one year (adjusted annually for inflation), section 202 of UMRA requires a Federal agency to publish a written statement that estimates the resulting costs, benefits, and other effects on the national economy. (2 U.S.C. 1532(a), (b)) The UMRA also requires a Federal agency to develop an effective process to permit timely input by elected officers of State, local, and Tribal governments on a proposed “significant intergovernmental mandate,” and requires an agency plan for giving notice and opportunity for timely input to potentially affected small governments before establishing any requirements that might significantly or uniquely affect small governments. On March 18, 1997, DOE published a statement of policy on its process for intergovernmental consultation under UMRA. 62 FR 12820; also available at http://energy.gov/gc/office-general-counsel. DOE examined this final rule according to UMRA and its statement of policy and determined that the rule contains neither an intergovernmental mandate, nor a mandate that may result in the expenditure of $100 million or more in any year, so these requirements do not apply.

I. 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 rule that may affect family well-being. This rule will not have any 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.

J. Review Under Executive Order 12630

DOE has determined, under Executive Order 12630, “Governmental Actions and Interference with Constitutionally Protected Property Rights,” 53 FR 8859 (Mar. 18, 1988),that this regulation would not result in any takings that might require compensation under the Fifth Amendment to the U.S. Constitution.

K. Review Under the Treasury and General Government Appropriations Act, 2001

Section 515 of the Treasury and General Government Appropriations Act, 2001 (44 U.S.C. 3516, note) provides for Federal 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 (Feb. 22, 2002), and DOE's guidelines were published at 67 FR 62446 (Oct. 7, 2002). DOE has reviewed this final rule under the OMB and DOE guidelines and has concluded that it is consistent with applicable policies in those guidelines.

L. 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 OIRA at OMB, a Statement of Energy Effects for any significant energy action. A “significant energy action” is defined as any action by an agency that promulgated 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; and (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 significant energy action, the agency must give a detailed statement of any adverse effects on energy supply, distribution, or use if the regulation is implemented, and of reasonable alternatives to the action and their expected benefits on energy supply, distribution, and use.

This final rule is not a significant energy action because the ability to correct regulations will not, in itself, have a significant adverse effect on the supply, distribution, or use of energy. Moreover, it would not have a significant adverse effect on the supply, distribution, or use of energy, nor has it been designated as a significant energy action by the Administrator of OIRA. Therefore, it is not a significant energy action, and, accordingly, DOE has not prepared a Statement of Energy Effects.

M. Congressional Notification

As required by 5 U.S.C. 801, DOE will report to Congress on the promulgation of this rule before its effective date. The report will state that it has been determined that the rule is not a “major rule” as defined by 5 U.S.C. 804(2).

V. Approval of the Office of the Secretary

The Secretary of Energy has approved publication of this final rule.

List of Subjects 10 CFR Part 430

Administrative practice and procedure, Energy conservation test procedures, Household appliances.

10 CFR Part 431

Administrative practice and procedure, Energy conservation test procedures, Commercial and industrial equipment.

Issued in Washington, DC, on February 9, 2016. Kathleen B. Hogan, Deputy Assistant Secretary for Energy Efficiency, Energy Efficiency and Renewable Energy.

For the reasons set forth in the preamble, DOE amends parts 430 and 431 of Chapter II of title 10 of the Code of Federal Regulations as set forth below:

PART 430—ENERGY CONSERVATION STANDARDS FOR CONSUMER PRODUCTS 1. The authority citation for part 430 continues to read as follows: Authority:

42 U.S.C. 6291-6309; 28 U.S.C. 2461 note.

2. Section 430.5 is added to subpart A to read as follows:
§ 430.5 Error correction procedures for energy conservation standards rules.

(a) Scope and purpose. The regulations in this section describe procedures through which the Department of Energy accepts and considers submissions regarding possible Errors in its rules under the Energy Policy and Conservation Act, as amended (42 U.S.C. 6291-6317). This section applies to rules establishing or amending energy conservation standards under the Act, except that this section does not apply to direct final rules issued pursuant to section 325(p)(4) of the Act (42 U.S.C. 6295(p)(4)).

(b) Definitions.

As used in this section:

Act means the Energy Policy and Conservation Act, as amended (42 U.S.C. 6291-6317).

Error means an aspect of the regulatory text of a rule that is inconsistent with what the Secretary intended regarding the rule at the time of posting. Examples of possible mistakes that might give rise to Errors include:

(1) A typographical mistake that causes the regulatory text to differ from how the preamble to the rule describes the rule;

(2) A calculation mistake that causes the numerical value of an energy conservation standard to differ from what technical support documents would justify; or

(3) A numbering mistake that causes a cross-reference to lead to the wrong text.

Party means any person who has provided input during the proceeding that led to a rule by submitting timely comments (including ex parte communications properly made within the relevant comment period) in response to a notice seeking comment or by providing substantive input at a public meeting regarding the rulemaking. For purposes of this definition, notices seeking comment include notices of proposed rulemaking, supplemental notices of proposed rulemaking, requests for information, and notices of data availability.

Rule means a rule establishing or amending an energy conservation standard under the Act.

Secretary means the Secretary of Energy or an official with delegated authority to perform a function of the Secretary of Energy under this section.

(c) Posting of rules. (1) The Secretary will cause a rule under the Act to be posted on a publicly-accessible Web site.

(2) The Secretary will not cause a rule to be published in the Federal Register during 30 calendar days after posting of the rule pursuant to paragraph (c)(1) of this section.

(3) Each rule posted pursuant to paragraph (c)(1) of this section shall bear the following disclaimer:

NOTICE: The text of this rule is subject to correction based on the identification of errors pursuant to 10 CFR 430.5 before publication in the Federal Register. Readers are requested to notify the United States Department of Energy, by email at [email protected], of any typographical or other errors, as described in such regulations, by no later than midnight on [INSERT DATE 30 CALENDAR DAYS AFTER DATE OF POSTING OF THE DOCUMENT ON THE DEPARTMENT'S WEB SITE], in order that DOE may consider whether corrections should be made before the document is submitted to the Office of the Federal Register for publication.

(d) Request for correction. (1) A party identifying an Error in a rule subject to this section may request that the Secretary correct the Error. Such a request must be submitted within 30 calendar days of the posting of the rule pursuant to paragraph (c) of this section.

(2)(i) A request under this section must identify an Error with particularity. The request must state what text is claimed to be erroneous and provide text that the requester argues would be a correct substitute. The request must also substantiate the claimed Error by citing evidence from the existing record of the rulemaking that the text of the rule as issued is inconsistent with what the Secretary intended the text to be.

(ii) A party's disagreement with a policy choice that the Secretary has made will not, on its own, constitute a valid basis for a request under this section.

(3) The evidence to substantiate a request (or evidence of the Error itself) must be in the record of the rulemaking at the time of the rule's issuance, which may include the preamble accompanying the rule. The Secretary will not consider new evidence submitted in connection with a request.

(4) A request must also demonstrate that the requester is a party by identifying one or more timely comment(s) or other substantive input that the requester previously provided in the proceeding leading to the rule.

(5) A request under this section must be filed in electronic format by email to the address that the rule designates for correction requests. Should filing by email not be feasible, the requester should contact the program point of contact designated in the rule regarding an appropriate alternative means of filing a request.

(6) A request that does not comply with the requirements of this section will not be considered.

(e) Correction of rules. The Secretary may respond to a request for correction under paragraph (d) of this section or address an Error discovered on the Secretary's own initiative by submitting to the Office of the Federal Register either a corrected rule or the rule as previously posted.

(f) Publication in the Federal Register. (1) If, after receiving one or more properly filed requests for correction, the Secretary decides not to undertake any corrections, the Secretary will submit the rule for publication to the Office of the Federal Register as it was posted. If the Secretary submits a rule to be so published without altering the rule in the respects requested, the requests are deemed rejected. The Secretary will ordinarily provide no written response to a rejected request.

(2) If the Secretary receives no properly filed requests after the posting of a rule and identifies no errors on the Secretary's own initiative, the Secretary will in due course submit the rule as it was posted to be Office of the Federal Register for publication. This will occur after the 30-day period prescribed by paragraph (c)(2) of this section has elapsed.

(3) If the Secretary receives a properly filed request after issuance of a rule and determines that a correction is necessary, the Secretary will absent extenuating circumstances, submit a corrected rule for publication in the Federal Register within 30 days after the 30-day period prescribed by paragraph (c)(2) of this section has elapsed.

(4) Consistent with the Act, compliance with an energy conservation standard will be required upon the specified compliance date as published in the relevant rule in the Federal Register.

(5) Consistent with the Administrative Procedure Act, and other applicable law, the Secretary will ordinarily designate an effective date for a rule under this section that is no less than 30 days after the publication of the rule in the Federal Register.

(g) Alteration of standards. Until an energy conservation standard has been published in the Federal Register, the Secretary may correct such standard, consistent with the Administrative Procedure Act.

(h) Judicial review. For determining the prematurity, timeliness, or lateness of a petition for judicial review pursuant to section 336(b) of the Act (42 U.S.C. 6306), a rule is considered “prescribed” on the date when the rule is published in the Federal Register.

PART 431—ENERGY EFFICIENCY PROGRAM FOR CERTAIN COMMERCIAL AND INDUSTRIAL EQUIPMENT 3. The authority citation for part 431 continues to read as follows: Authority:

42 U.S.C. 6291-6317.

4. Section 431.3 is added to subpart A to read as follows:
§ 431.3 Error correction procedure for energy conservation standards rules.

Requests for error-corrections pertaining to an energy conservation standard rule for commercial or industrial equipment shall follow those procedures and provisions detailed in 10 CFR 430.5.

[FR Doc. 2016-03190 Filed 5-4-16; 8:45 am] BILLING CODE 6450-01-P
DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 15 CFR Part 902 50 CFR Part 660 [Docket No. 151005920-6371-02] RIN 0648-BF39 Fisheries Off West Coast States; Pacific Coast Groundfish Fishery Management Plan; Trawl Rationalization Program; Flow Scale Requirements AGENCY:

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

ACTION:

Final rule.

SUMMARY:

This action revises scale requirements for processing vessels that are required to weigh fish at sea, i.e., mothership and catcher/processor vessels, and Shorebased Individual Fishery Quota Program (IFQ) first receivers. For motherships and catcher/processors that weigh fish at sea, the action requires the use of updated scale technology, requires enhanced daily scale testing for flow scales (also known as belt scales), and requires the use of video to monitor the flow scale and the area around the flow scale. For Shorebased IFQ first receivers, the action adds criteria for inseason flow scale tests. In addition, the action includes housekeeping changes that are intended to better align the regulations with defined terms, and to provide clarity and consistency between paragraphs. Action is needed to provide precise and accurate catch estimates and to reduce the likelihood that vessels will under report harvests.

DATES:

Effective June 6, 2016.

ADDRESSES:

Address all comments concerning this rule to: William W. Stelle Jr., Regional Administrator, West Coast Region NMFS, 7600 Sand Point Way NE., Seattle, WA 98115-0070.

FOR FURTHER INFORMATION CONTACT:

Miako Ushio, (206) 526-4644.

SUPPLEMENTARY INFORMATION:

Electronic Access

This final rule is accessible via the Internet at the Office of the Federal Register Web site at https://www.federalregister.gov. Background information and documents are available at the NMFS West Coast Region Web site at http://www.westcoast.fisheries.noaa.gov/fisheries/groundfish/index.html and at the Pacific Fishery Management Council's Web site at http://www.pcouncil.org/.

Motherships and Catcher/Processors

An at-sea scale program was developed for the Alaska groundfish fishery in 1998 to provide catch accounting that was more precise and verifiable at the individual haul level and less dependent on estimates generated by at-sea observers (February 4, 1998; 63 FR 5836). The at-sea scale program supported implementation of a large-scale quota share program that required verifiable and defensible estimates of harvest. Since implemenation of those weighing requirements in 1998, at-sea scales have been used to provide reliable, precise and accurate estimates of catch in the Alaskan groundfish fisheries. At the same time, scale technology has evolved and NMFS has developed greater expertise in monitoring processing activity.

Recent fraud on some vessels was found to have resulted in systematic underestimates of scale weights used for catch accounting. As a result, at-sea flow scale regulations for the Alaska Region at 50 CFR 679.28 were revised on December 18, 2014 (November 18, 2014; 79 FR 68610) to improve scale accuracy and reduce bias. Revisions to the Alaska regulations included a suite of modifications to the at-sea scales program that included the use of flow scales capable of logging and printing the frequency and magnitude of scale calibrations relative to previous calibrations as well as the time and date of each scale fault (or error) and scale startup time; revised daily scale test methods; and new requirements for video monitoring.

In 2011, a trawl rationalization program was implemented for the Pacific Coast groundfish fishery which included scale requirements specified in regulation at § 660.15(b) (December 15, 2010; 75 FR 78344). These regulations require mothership and catcher/processor vessels to use scales certified for the Alaska groundfish fisheries. This action modifies the Pacific Coast groundfish fishery regulations to be consistent with the Alaska Region's 2014 regulation updates, thereby bringing them up to date with current technology, reducing the potential for scale tampering, and improving catch accounting accuracy. Catch estimates based on inaccurate scale weights could systematically underestimate harvests. Given the importance of using accurate and reliable catch accounting data for management of the groundfish stocks, NMFS is implementing revisions consistent with the revisions made for the Alaska groundfish fishery, and with the intent of enforcement and monitoring provisions implemented under Amendment 20 to the Pacific Coast groundfish fishery management plan (FMP).

This final rule updates the requirements for scales consistent with Alaska regulations at § 679.28. Improved scale technology includes features that allow NMFS to determine how well the flow scales are performing, and improve the accuracy and reliability of flow scale measurements. Because the mothership and catcher/processor vessels already have upgraded scale systems for the Alaska Fisheries, and the scales are certified through annual testing provided by the Alaska Region, aligning the performance and technical requirements is reasonable and not expected to result in added costs to the vessels.

Regulatory revisions include improvements to daily scale tests. The types of material used for the daily scale test are limited to test materials (i.e., pre-weighed sand bags) supplied by the scale manufacturer or approved by a NMFS-authorized scale inspector. The minimum amount of weight for each test and the number of runs are stated in regulations. In addition, new requirements for documenting failed scale tests, and printing audit and calibration reports are specified.

Regulatory revisions require that all mothership and catcher/processors vessels use video monitoring systems that meet the Alaska fishery system requirements, specified at § 679.28(e), when they are fishing in the Pacific Coast groundfish fishery. The video monitoring systems allow the activities around the flow scale to be monitored to ensure that the flow scale is functioning properly (e.g., that the flow scale is not running while in a fault (error) state); ensure that all fish are being weighed; detect when crew members are working on the flow scale; and ensure that daily flow scale tests are being conducted on the required schedule and with the appropriate test weights. The video systems are required to capture imagery of areas where the catch enters, moves across, and leaves the scale; of any access points that may be adjusted or modified by crew; and of the scale display and the indicator of when the scale is operating in a fault state. Consistent with the Alaska requirements, the vessel operator is required to maintain the video imagery for at least 120 days and make the imagery available to NMFS upon request.

IFQ First Receivers

Regulations at § 660.15(c) define the performance and technical requirements for scales used to weigh fish at Shorebased IFQ first receivers. Since the Shorebased IFQ program was implemented in 2011, some Shorebased IFQ first receivers located in Oregon and Washington have installed flow scales. The states of Oregon and Washington test the flow scales consistent with national weights and measures standards. This action revises regulations to include performance and technical requirements for flow scales used at IFQ first receivers. In addition, several minor technical changes are made. The regulatory changes for first receivers include revisions to inseason scale test requirements specific to flow scales; adding catch monitors to the list of individuals that have access to scale displays and printouts; revisions to inseason scale test requirements specific to flow scales; and the correction of a value for maximum error in scale divisions.

Housekeeping

Numerous minor changes are made throughout the regulations at 50 CFR 660.15, 660.113, 660.150 and 660.160 for clarity, to better align different sections of the regulations, to update cross references, and for consistency in the use of terms. Paragraph 660.15(a) is revised to remove reporting requirements that are repeated in other more appropriate sections of the regulations. Regulatory language originally adopted from the Alaska Groundfish fisheries is not consistent with language used for the Pacific Coast groundfish fishery; therefore, minor revisions are made to paragraph § 660.15(b) for clarity and to be consistent with other sections of the Pacific Coast groundfish regulations. Minor changes are made at § 660.15(c) to revise terms for consistent use throughout the regulations. Minor changes are made at § 660.113 to revise terms for consistent use throughout the regulations and to update cross references. Minor changes are made at §§ 660.150(b) and 660.160(b) to revise terms for consistent use throughout the regulations, and update cross references, to add missing references for cease fishing reports and to add clarity to the vessel responsibilities relative to observer platform scale.

NMFS published a proposed rule for this action on January 19, 2016 (81 FR 2831). The comment period for the proposed rule ended on February 18, 2016, and no comments were received. Therefore, no changes were made from the proposed rule in response to comments.

Section 3507(c)(B)(i) of the PRA requires that agencies inventory and display a current control number assigned by the Director, Office of Management and Budget (OMB), for each agency information collection. Section 902.1(b) identifies the location of NOAA regulations for which OMB approval numbers have been issued. Because this final rule adds requirements for scale test report recording and maintenance, 15 CFR 902.1(b) is revised to reference correctly the section resulting from this final rule.

Classification

NMFS has determined that this action is consistent with the FMP, the Magnuson Stevens Conservation and Management Act, and other applicable laws.

The Office of Management and Budget has determined that this action is not significant for purposes of Executive Order 12866.

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 this certification, and NMFS has not received any new information that would affect its determination. As a result, a final regulatory flexibility analysis is not required, and none has been prepared.

This final rule contains a collection-of-information requirement subject to review and approval by OMB under the Paperwork Reduction Act (PRA). This requirement has been approved by OMB as revisions to OMB collection 0648-0619. The public reporting burden for the at-sea scale requirements, including daily test reports (30 minute per response), daily catch and cumulative weight reports (10 min per response), the audit trail (1 minute per response), calibration log (1 minute per response), fault log (1 minute per response) and video monitoring (0 minute per response), is estimated to average 43 minutes per response. Send comments on the burden estimate or any other aspects of the collection of information to West Coast Region at the ADDRESSES above, and by email to [email protected] or fax to (202) 395-7285.

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.

List of Subjects 15 CFR Part 902

Reporting and recordkeeping requirements.

50 CFR Part 660

Fisheries, Fishing, and Indian fisheries.

Dated: April 29, 2016. Samuel D. Rauch III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

For the reasons set out in the preamble, 15 CFR part 902 and 50 CFR part 660 are amended as follows:

Title 15—Commerce and Foreign Trade PART 902—NOAA INFORMATION COLLECTION REQUIREMENTS UNDER THE PAPERWORK REDUCTION ACT: OMB CONTROL NUMBERS 1. The authority citation for part 902 continues to read as follows: Authority:

44 U.S.C. 3501 et seq.

2. In § 902.1, in the table in paragraph (b), under the entry “50 CFR”, revise the entry for “660.13” and add an entry in alphanumeric order for “660.15” to read as follows:
§ 902.1 OMB control numbers assigned pursuant to the Paperwork Reduction Act.

(b) * * *

CFR Part or section where the information collection requirement is located Current OMB
  • Control No.
  • (All numbers begin with 0648-)
  • *    *    *    *    * 50 CFR: *    *    *    *    * 660.13 -0573 and -0619. *    *    *    *    * 660.15 -0619. *    *    *    *    *
    Title 50—Wildlife and Fisheries PART 660—FISHERIES OFF WEST COAST STATES 3. The authority citation for part 660 continues to read as follows: Authority:

    16 U.S.C. 1801 et seq., 16 U.S.C. 773 et seq., and 16 U.S.C. 7001 et seq.

    4. In § 660.15, revise paragraphs (a), (b), and (c) and add paragraph (e) to read as follows:
    § 660.15 Equipment requirements.

    (a) Applicability. This section contains the equipment and operational requirements for scales used to weigh fish at sea, scales used to weigh fish at IFQ first receivers, video monitoring systems, computer hardware for electronic fish ticket software, and computer hardware for electronic logbook software.

    (b) Scales used to weigh fish at sea. Vessel owners, operators, and managers are jointly and severally responsible for their vessel's compliance with the requirements specified in this section.

    (1) Performance and technical requirements for scales in the MS and C/P Coop Programs. A scale used to weigh fish in the MS and C/P Coop Programs must meet the type evaluation, initial inspection, and annual reinspection requirements set forth in 50 CFR 679.28(b)(1) and (2), and must be approved by NMFS to weigh fish at sea.

    (2) Annual inspection. Once a scale is installed on a vessel and approved by NMFS for use to weigh fish at sea, it must be reinspected annually within 12 months of the date of the most recent inspection to determine if the scale meets all of the applicable performance and technical requirements as described in 50 CFR 679.28(b).

    (3) Daily testing. Each scale used to weigh fish must be tested at least once each calendar day to ensure that each scale meets the maximum permissible error requirements described at paragraph (b)(4) of this section.

    (4) Daily at-sea scale tests. To verify that the scale meets the maximum permissible errors specified in this paragraph, each scale used to weigh fish must be tested at least one time during each calendar day when use of the scale is required. The tests must be performed in an accurate and timely manner.

    (i) Flow or Belt scales—(A) Maximum permissible errors. The maximum permissible errors for the daily at-sea scale test is plus or minus 3 percent of the known weight of the test material.

    (B) Test Procedure. A test must be conducted by weighing no less than 400 kg (882 lb) of test material, supplied by the scale manufacturer or approved by a NMFS-authorized scale inspector, on the scale under test. The test material may be run across the scale multiple times in order to total 400 kg; however, no single run of test material across the scale may weigh less than 40 kg (88.2 lb). The known weight of test material must be determined at the time of each scale test by weighing it on a platform scale approved for use under 50 CFR 679.28(b)(7).

    (ii) Platform scales required for observer sampling or to determine known weight of test material on mothership and catcher/processor vessels—(A) Maximum permissible errors. The maximum permissible errors for the daily at-sea scale test for platform scales is plus or minus 0.5 percent of the weight tested.

    (B) Test Procedure. A platform scale used for observer sampling must be tested at 10, 25, and 50 kg (or 20, 50, and 100 lb if the scale is denominated in pounds) using approved test weights. Any combination of test weights that will allow the scale to be tested at 10 kg, 25 kg, and 50 kg may be used. A platform scale used to weigh fish must be tested at a weight equal to the largest amount of fish that will be weighed on the scale in one weighing.

    (C) Approved test weights. Each test weight must have its weight stamped on or otherwise permanently affixed to it. The weight of each test weight must be annually certified by a National Institute of Standards and Technology-approved metrology laboratory or approved for continued use by the NMFS authorized inspector at the time of the annual scale inspection.

    (iii) Requirements for all at-sea scale tests. The following conditions must be met:

    (A) Notify the observer at least 15 minutes before the time that the test will be conducted, and conduct the test while the observer is present.

    (B) Conduct the scale test by placing the test material or test weights on or across the scale and recording the following information on the at-sea scale test report form:

    (1) Vessel name;

    (2) Month, day, and year of test;

    (3) Time test started to the nearest minute in local time;

    (4) Known weight of test materials or test weights;

    (5) Weight of test material or test weights recorded by scale;

    (6) Percent error as determined by subtracting the known weight of the test material or test weights from the weight recorded on the scale, dividing that amount by the known weight of the test material or test weights, and multiplying by 100; and

    (7) Signature of operator.

    (C) Maintain the scale test report form from all at-sea scale tests, including test report forms from failed scale tests on board the vessel until the end of the fishing year during which the tests were conducted, and make the report forms available to observers, NMFS staff, or authorized officers. In addition, the scale test report forms must be retained for 3 years after the end of the fishing year during which the tests were performed. Each scale test report form must be signed by the operator immediately following completion of each scale test.

    (5) Scale maintenance. The scale must be maintained in proper operating condition throughout its use; adjustments made to the scale must be made to bring the performance errors as close as practicable to a zero value; and no adjustment may be made that will cause the scale to weigh fish inaccurately.

    (6) Printed reports from the scale (not applicable to observer sampling scales). Printed reports are provided to NMFS as required by this paragraph. Printed reports from the scale must be maintained on board the vessel until the end of the year during which the reports were made, and made available to observers, NMFS staff or authorized officers. In addition, printed reports must be retained for 3 years after the end of the year during which the printouts were made.

    (i) Printed reports of catch weight and cumulative weight. Reports must be printed at least once every calendar day when use of the scale is required. Reports must also be printed before any information stored in the scale computer memory is replaced. Scale weights must not be adjusted by the scale operator to account for the perceived weight of water, slime, mud, debris, or other materials. Scale printouts must show:

    (A) The vessel name and Federal vessel permit number;

    (B) The date and time the information was printed;

    (C) The haul number;

    (D) The total weight of the haul; and

    (E) The total cumulative weight of all fish and other material weighed on the scale since the last annual inspection.

    (ii) Printed report from the audit trail. The printed report must include the information specified in sections 2.3.1.8, 3.3.1.7, and 4.3.1.8 of appendix A to 50 CFR part 679. The printed report must be provided to the authorized scale inspector at each scale inspection and must also be printed at any time upon request of the observer, NMFS personnel or an authorized officer.

    (iii) Printed report from calibration log. The operator must print the calibration log on request by NMFS staff or an authorized officer, or person authorized by NMFS. The calibration log must be printed and retained before any information stored in the scale computer memory is replaced. The calibration log must detail either the prior 1,000 calibrations or all calibrations since the scale electronics were first put into service, whichever is less. The printout from the calibration log must show:

    (A) The vessel name and Federal fisheries or processor permit number;

    (B) The month, day, and year of the calibration;

    (C) The time of the calibration to the nearest minute in local time;

    (D) The weight used to calibrate the scale; and

    (E) The magnitude of the calibration in comparison to the prior calibration.

    (iv) Printed reports from the fault log. The operator must print the fault log on request by NMFS staff, an authorized officer or person authorized by NMFS. The fault log must be printed and retained before any information stored in the scale computer memory is replaced. The fault log must detail either the prior 1,000 faults and startups, or all faults and startups since the scale electronics were first put into service, whichever is less. A fault, for the purposes of the fault log, is any condition other than underflow detected by the scale electronics that could affect the metrological accuracy of the scale. The printout from the fault log must show:

    (A) The vessel name and Federal fisheries or processor permit number;

    (B) The month, day, year, and time of each startup to the nearest minute in local time;

    (C) The month, day, year, and time that each fault began to the nearest minute in local time; and

    (D) The month, day, year, and time that each fault was resolved to the nearest minute in local time.

    (v) Platform scales used for observer sampling. A platform scale used for observer sampling is not required to produce a printed record.

    (7) Video monitoring for scales used by the vessel crew to weigh catch. Mothership or Catcher/Processor vessels required to weigh fish under the regulations in this section must provide and maintain a NMFS-approved video monitoring system as specified in paragraph (e) of this section.

    (c) Scales used to weigh fish at IFQ first receivers—performance and technical requirements. Scale requirements in this paragraph are in addition to those requirements set forth by the State in which the scale is located, and nothing in this paragraph may be construed to reduce or supersede the authority of the State to regulate, test, or approve scales within the State. Scales used to weigh fish that are also required to be approved by the State must meet the following requirements:

    (1) Verification of approval. The scale must display a valid sticker indicating that the scale is currently approved in accordance with the laws of the state where the scale is located.

    (2) Visibility. The IFQ first receiver must ensure that the scale and scale display are visible simultaneously to the catch monitor. Catch monitors, NMFS staff, NMFS-authorized personnel, or authorized officers must be allowed to observe the weighing of fish on the scale and be allowed to read the scale display at all times.

    (3) Printed scale weights.

    (i) An IFQ first receiver must ensure that printouts of the scale weight of each delivery or offload are made available to the catch monitor, NMFS staff, to NMFS-authorized personnel, or to authorized officers at the time printouts are generated. An IFQ first receiver must maintain printouts on site until the end of the fishing year during which the printouts were made and make them available upon request by the catch monitor, NMFS staff, NMFS-authorized personnel, or authorized officers for 3 years after the end of the fishing year during which the printout was made.

    (ii) All scales identified in a catch monitoring plan (see § 660.140(f)(3)) must produce a printed record for each landing, or portion of a landing, weighed on that scale. NMFS may exempt, through approval of the NMFS-accepted catch monitoring plan, scales not designed for automatic bulk weighing from part or all of the printed record requirements. IFQ first receivers that receive no more than 200,000 pounds of groundfish in any calendar month may be exempt under § 660.140(j)(2). For scales that must produce a printed record, the printed record must include:

    (A) The IFQ first receiver's name;

    (B) The weight of each load in the weighing cycle;

    (C) The total weight of fish in each landing, or portion of the landing that was weighed on that scale;

    (D) For belt scales and weight belts, the total cumulative weight of all fish or other material weighed on the scale since the last inspection;

    (E) The date the information is printed; and

    (F) The name and vessel registration or documentation number of the vessel making the landing. The person operating the scale may write this information on the scale printout in ink at the time of printing.

    (4) Inseason scale testing. IFQ first receivers must allow, and provide reasonable assistance to NMFS staff, NMFS-authorized personnel, and authorized officers to test scales used to weigh IFQ fish. A scale that does not pass an inseason test may not be used to weigh IFQ fish until the scale passes an inseason test or is approved for continued use by the weights and measures authorities of the State in which the scale is located.

    (i) Inseason testing criteria. To pass an inseason test, NMFS staff or authorized officers must be able to verify that:

    (A) The scale display and printed information are clear and easily read under all conditions of normal operation;

    (B) Weight values are visible on the display until the value is printed;

    (C) The scale does not exceed the maximum permissible errors specified in this paragraph:

    (1) Flow scales (also known as belt scales and weight belts). The maximum permissible error is plus or minus 0.25 percent of the known weight of the test material with repeatability between tests of no more than 0.25 percent. Percent error is determined by subtracting the known weight of the test material or test weights from the weight recorded on the scale, dividing that amount by the known weight of the test material or test weights, and multiplying by 100.

    (2) All other scales.

    Test load in scale divisions Maximum error in scale divisions (i) 0-500 1 (ii) 501-2,000 2 (iii) 2,001-4,000 3 (iv) >4,000 5

    (D) Automatic weighing systems. An automatic weighing system must be provided and operational that will prevent fish from passing over the scale or entering any weighing hopper unless the following criteria are met:

    (1) No catch may enter or leave a weighing hopper until the weighing cycle is complete;

    (2) No product may be cycled and weighed if the weight recording element is not operational; and

    (3) No product may enter a weighing hopper until the prior weighing cycle has been completed and the scale indicator has returned to a zero.

    (ii) [Reserved]

    (e) Video monitoring systems used monitor at-sea scales—(1) Performance and technical requirements for video monitoring systems for the MS and C/P Coop Programs. A video monitoring system used to monitor at-sea scales must meet the system requirements and system inspections, set forth in 50 CFR 679.28(e)(1) through (4) and be issued a Video Monitoring Inspection Report verifying that the video system meets all applicable requirements for use in the Alaska Pollock fishery. Any change to the system must meet the requirements specified at 50 CFR 679.28(e)(7) and be approved by the Alaska Regional Administrator in writing before any changes are made.

    (i) MS or C/P vessels required to weigh fish at sea under the regulations in this section must:

    (A) Provide and maintain a video monitoring system that provides sufficient resolution and field of view to monitor: All areas where catch enters the scale, moves across the scale and leaves the scale; any access point to the scale from which the scale may be adjusted or modified by vessel crew while the vessel is at sea; and the scale display and the indicator for the scale operating in a fault state.

    (B) Record and retain video for all periods when catch that must be weighed is on board the vessel.

    (ii) [Reserved]

    (2) Video Monitoring System Inspection Report. A current NMFS-issued Video Monitoring System Inspection Report must be maintained on board the vessel at all times the vessel is required to have an approved video monitoring system. The Video Monitoring System Inspection Report must be made available to the observer, NMFS staff, or to an authorized officer upon request.

    (3) Retention of records. Consistent with the requirements set forth at 50 CFR 679.28(e)(1), the video data must be maintained on the vessel and made available on request by NMFS staff, or any individual authorized by NMFS. The data must be retained on board the vessel for no less than 120 days after the date the video is recorded, unless NMFS has notified the operator in writing that the video data may be retained for less than this 120-day period.

    3. In § 660.112, add paragraphs (c)(5) and (6) to read as follows:
    § 660.112 Trawl fishery—prohibitions.

    (c) * * *

    (5) Fail to weigh all fish taken and retained aboard the vessel on a scale that meets the performance and technical requirements specified at § 660.15(b).

    (6) Weigh fish taken and retained aboard the vessel without operating and maintaining a video monitoring system that meets the performance and technical requirements specified at § 660.15(e).

    4. In § 660.113, revise paragraphs (c)(2) and (d)(2) to read as follows:
    § 660.113 Trawl fishery—recordkeeping and reporting.

    (c) * * *

    (2) NMFS-approved scale—(i) Scale test report form. Mothership vessel operators are responsible for conducting scale tests and for recording the scale test information on the scale test report form as specified at § 660.15(b), for mothership vessels.

    (ii) Printed scale reports. Requirements pertaining to printed scale reports and scale weight printouts are specified at § 660.15(b), for mothership vessels.

    (iii) Retention of scale records and reports. Vessels must maintain scale test report forms on board until the end of the fishing year during which the tests were conducted, and make the report forms available to observers, NMFS staff, or authorized officers. In addition, the scale test report forms must be maintained for 3 years after the end of the fishing year during which the tests were performed. All scale test report forms must be signed by the operator.

    (d) * * *

    (2) NMFS-approved scales—(i) Scale test report form. Catcher/processor vessel operators are responsible for conducting scale tests and for recording the scale test information on the scale test report form as specified at § 660.15(b), for catcher/processor vessels.

    (ii) Printed scale reports. Specific requirements pertaining to printed scale reports and scale weight printouts are specified at § 660.15(b), for catcher/processor vessels.

    (iii) Retention of scale records and reports. The vessel must maintain the scale test report form on board until the end of the fishing year during which the tests were conducted, and make the report forms available to observers, NMFS staff, or authorized officers. In addition, the scale test report forms must be maintained for 3 years after the end of the fishing year during which the tests were performed. All scale test report forms must be signed by the operator.

    5. In § 660.150, revise paragraphs (b)(1)(ii) introductory text and (b)(1)(ii)(A) and (C) to read as follows:
    § 660.150 Mothership (MS) Coop Program.

    (b) * * *

    (1) * * *

    (ii) Mothership vessel responsibilities. The owner and operator of a mothership vessel must:

    (A) Recordkeeping and reporting. Maintain a valid declaration as specified at § 660.13(d); maintain records as specified at § 660.113(a); and maintain and submit all records and reports specified at § 660.113(c) including, economic data, scale tests records, cease fishing reports, and cost recovery.

    (C) Catch weighing requirements. The owner and operator of a mothership vessel must:

    (1) Ensure that all catch is weighed in its round form on a NMFS-approved scale that meets the requirements described in section § 660.15(b);

    (2) Provide a NMFS-approved platform scale, belt scale, and test weights that meet the requirements described in section § 660.15(b).

    6. In § 660.160, revise paragraphs (b)(1)(ii) introductory text and (b)(1)(ii)(A) and (C) to read as follows:
    § 660.160 Catcher/processor (C/P) Coop Program.

    (b) * * *

    (1) * * *

    (ii) Catcher/processor vessel responsibilities. The owner and operator of a catcher/processor vessel must:

    (A) Recordkeeping and reporting. Maintain a valid declaration as specified at § 660.13(d); maintain records as specified at § 660.113(a); and maintain and submit all records and reports specified at § 660.113(d) including, economic data, scale tests records, cease fishing reports, and cost recovery.

    (C) Catch weighing requirements. The owner and operator of a catcher/processor vessel must:

    (1) Ensure that all catch is weighed in its round form on a NMFS-approved scale that meets the requirements described in § 660.15(b);

    (2) Provide a NMFS-approved platform scale, belt scale, and test weights that meet the requirements described in § 660.15(b).

    [FR Doc. 2016-10476 Filed 5-4-16; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF THE TREASURY Internal Revenue Service 26 CFR Part 1 [TD 9767] RIN 1545-BN24 Additional Limitation on Suspension of Benefits Applicable to Certain Pension Plans Under the Multiemployer Pension Reform Act of 2014 AGENCY:

    Internal Revenue Service (IRS), Treasury.

    ACTION:

    Final regulations.

    SUMMARY:

    The Multiemployer Pension Reform Act of 2014 (“MPRA”), which was enacted by Congress as part of the Consolidated and Further Continuing Appropriations Act of 2015, relates to multiemployer defined benefit pension plans that are projected to have insufficient funds, within a specified timeframe, to pay the full plan benefits to which individuals will be entitled (referred to as plans in “critical and declining status”). Under MPRA, the sponsor of such a plan is permitted to reduce the pension benefits payable to plan participants and beneficiaries if certain conditions and limitations are satisfied (referred to in MPRA as a “suspension of benefits”). One specific limitation governs the application of a suspension of benefits under any plan that includes benefits directly attributable to a participant's service with any employer that has withdrawn from the plan in a complete withdrawal, paid its full withdrawal liability, and, pursuant to a collective bargaining agreement, assumed liability for providing benefits to participants and beneficiaries equal to any benefits for such participants and beneficiaries reduced as a result of the financial status of the plan. This document contains final regulations that provide guidance relating to this specific limitation. These regulations affect active, retired, and deferred vested participants and beneficiaries under any such multiemployer plan in critical and declining status as well as employers contributing to, and sponsors and administrators of, those plans.

    DATES:

    Effective date: These regulations are effective on May 5, 2016.

    Applicability date: These regulations apply to suspensions for which the approval or denial is issued on or after April 26, 2016. In the case of a systemically important plan, the final regulations apply with respect to any modified suspension implemented on or after April 26, 2016.

    FOR FURTHER INFORMATION CONTACT:

    The Department of the Treasury MPRA guidance information line at (202) 622-1559 (not a toll-free number).

    SUPPLEMENTARY INFORMATION:

    Background

    This document contains amendments to the Income Tax Regulations (26 CFR part 1) under section 432(e)(9) of the Internal Revenue Code (Code), as amended by section 201 of the Multiemployer Pension Reform Act of 2014, Division O of the Consolidated and Further Continuing Appropriations Act, 2015, Public Law 113-235 (128 Stat. 2130 (2014)) (MPRA).1 As amended, section 432(e)(9) permits plan sponsors of certain multiemployer plans to reduce the plan benefits payable to participants and beneficiaries by plan amendment (referred to in the statute as a “suspension of benefits”) if specified conditions are satisfied. A plan sponsor that seeks to implement a suspension of benefits must submit an application for approval of that suspension to the Secretary of the Treasury. The Secretary of the Treasury, in consultation with the Pension Benefit Guaranty Corporation and the Secretary of Labor (generally referred to in this preamble as the Treasury Department, PBGC, and Labor Department, respectively), is required by the statute to approve the application upon finding that certain specified conditions are satisfied.

    1 Section 201 of MPRA makes parallel amendments to section 305 of the Employee Retirement Income Security Act of 1974, Public Law 93-406 (88 Stat. 829 (1974)), as amended (ERISA). The Treasury Department has interpretive jurisdiction over the subject matter of these provisions under ERISA as well as the Code. See also section 101 of Reorganization Plan No. 4 of 1978 (43 FR 47713). Thus, these final Treasury regulations issued under section 432 of the Code apply as well for purposes of section 305 of ERISA.

    One condition, set forth in section 432(e)(9)(D)(vii), is a specific limitation on how a suspension of benefits must be applied under a plan that includes benefits that are directly attributable to a participant's service with any employer described in section 432(e)(9)(D)(vii)(III). An employer is described in section 432(e)(9)(D)(vii)(III) if the employer has, prior to the date MPRA was enacted (December 16, 2014): (1) Withdrawn from the plan in a complete withdrawal under section 4203 of ERISA; (2) paid the full amount of the employer's withdrawal liability under section 4201(b)(1) of ERISA or an agreement with the plan; and (3) pursuant to a collective bargaining agreement, assumed liability for providing benefits to participants and beneficiaries of the plan under a separate, single-employer plan sponsored by the employer, in an amount equal to any amount of benefits for these participants and beneficiaries reduced as a result of the financial status of the plan. Such an employer is referred to in this preamble as a “subclause III employer,” and a collective bargaining agreement under which the employer assumes liability for those benefits is referred to as a “make-whole agreement.”

    If section 432(e)(9)(D)(vii) applies to a plan then, under section 432(e)(9)(D)(vii)(I), the suspension of benefits must first be applied to the maximum extent permissible to benefits attributable to a participant's service with an employer that withdrew from the plan and failed to pay (or is delinquent with respect to paying) the full amount of its withdrawal liability under section 4201(b)(1) of ERISA or an agreement with the plan. Such an employer is referred to in this preamble as a “subclause I employer.” Second, under section 432(e)(9)(D)(vii)(II), except as provided in section 432(e)(9)(D)(vii)(III), a suspension of benefits must be applied to all other benefits under the plan that may be suspended. Third, under section 432(e)(9)(D)(vii)(III), a suspension must be applied to benefits under the plan that are directly attributable to a participant's service with a subclause III employer. An employer under the plan is referred to in this preamble as a “subclause II employer” if it is neither a subclause I employer nor a subclause III employer.

    On October 23, 2015, the Treasury Department published a notice in the Federal Register (80 FR 64508) regarding an application for a proposed suspension of benefits, which represented that the plan is of the type to which section 432(e)(9)(D)(vii) applies. The notice requested public comments on all aspects of the application, including with respect to the interpretation of section 432(e)(9)(D)(vii) that is reflected in the application.

    On February 11, 2016, the Treasury Department and the IRS published proposed regulations (REG-101701-16) regarding the specific limitation on a suspension of benefits under section 432(e)(9)(D)(vii) in the Federal Register at 81 FR 7253. Comments were received on the proposed regulations and a public hearing was held on March 22, 2016.

    After consideration of the written comments received and the oral comments presented at the public hearing, the provisions of the proposed regulations are adopted as revised by this Treasury decision. The Treasury Department consulted with PBGC and the Labor Department in developing these regulations.2

    2 The Treasury Department and the IRS have published final regulations providing general guidance regarding section 432(e)(9). See § 1.432(e)(9)-1 (TD 9765), published in the Federal Register on April 28, 2016 (81 FR 25539).

    .

    Explanation of Provisions

    These regulations amend the Income Tax Regulations (26 CFR part 1) to provide guidance regarding section 432(e)(9)(D)(vii). Section 432(e)(9)(D)(vii) sets forth a rule that limits how a suspension may be applied under a plan that includes benefits that are directly attributable to a participant's service with a subclause III employer. In determining how a suspension should be allocated consistent with MPRA's framework and purpose, the Treasury Department and the IRS analyzed the statute and applied well-established principles of statutory construction to interpret section 432(e)(9)(D)(vii). In so doing, the Treasury Department and the IRS interpreted section 432(e)(9)(D)(vii) in the context of section 432(e)(9) as a whole, which requires, among other things, that any suspension be subject to certain limitations, including that the suspension be equitably distributed across the participant and beneficiary population.

    I. Application of a Suspension of Benefits to Subclause I Benefits to the Maximum Extent Permissible

    Subclause (I) of section 432(e)(9)(D)(vii) provides that the suspension of benefits must first be applied “to the maximum extent permissible” to benefits attributable to service with a subclause I employer (referred to in this preamble as “subclause I benefits”). Accordingly, the proposed regulations provided that, for a plan that is subject to section 432(e)(9)(D)(vii), a suspension of benefits must be applied to the maximum extent permissible to subclause I benefits before reductions are permitted to be applied to any other benefits. Under the proposed regulations, only if such a suspension is not reasonably estimated to achieve the level that is necessary to enable the plan to avoid insolvency may a suspension then be applied to other benefits that are permitted to be suspended and that are attributable to a participant's service with other employers. No commenters objected to this provision of the proposed regulations, and these final regulations adopt this provision as proposed.

    II. Relationship Between Subclause II Benefits and Subclause III Benefits

    In contrast to subclause (I) of section 432(e)(9)(D)(vii), subclause (II) does not include the phrase “to the maximum extent permissible.” Accordingly, the Treasury Department and the IRS developed the rules in the proposed regulations based on the interpretation that a suspension need not be applied to the maximum extent permissible to benefits described in subclause (II) before any suspension is applied to benefits described in subclause (III).

    A number of commenters expressed views regarding the rules under the proposed regulations describing how the suspension of benefits is permitted to apply to benefits attributable to service with a subclause II employer (referred to in this preamble as “subclause II benefits”) and benefits directly attributable to service with a subclause III employer (referred to in this preamble as “subclause III benefits”). Many of these commenters agreed with the analysis set forth in the preamble to the proposed regulations and supported an interpretation of the statute that subclause II benefits are not required to be reduced to the maximum extent permissible before any subclause III benefits can be reduced.

    Two commenters advocated that the statute be interpreted to require that subclause II benefits be suspended to the maximum extent permissible before a suspension is permitted to apply to any subclause III benefits. These commenters maintained that this result is required by the ordinal numbering of the three subclauses and asserted that Congress intended to favor any withdrawing employer that not only paid the full amount of its withdrawal liability but also entered into a make-whole agreement. If such an approach were applied under section 432(e)(9)(D)(vii), then the benefits described in each of the first two subclauses would be required to be suspended to the maximum extent permissible before any suspension could apply to benefits described in the successive subclause. Under that approach, subclause III benefits would be permitted to be suspended only if all benefits attributable to participants' service with all subclause I and subclause II employers were suspended to the maximum extent permissible. In support of this position, one commenter asserted that the Treasury Department and the IRS misinterpreted the import of the absence of the phrase “to the maximum extent permissible” in subclause (II). This commenter asserted that the combined use in subclause (II) of “second,” “except as provided by subclause (III),” and “all other benefits” has the same effect with respect to subclause II benefits as the use in subclause (I) of “to the maximum extent permissible” has with respect to subclause I benefits. This commenter argued that the difference in language between subclause (I) and subclause (II) does not prevent the two rules from having the same effect, and cited to Kirtsaeng v. John Wiley & Sons, Inc., 568 U.S. ___, 133 S. Ct. 1351, 1364 (2013) in support of this argument.

    After carefully considering this argument and applicable authorities, the Treasury Department and the IRS have concluded that this interpretation is incorrect; the statute does not require subclause II benefits to be suspended to the maximum extent permissible before any subclause III benefits are permitted to be suspended, and the rule set forth in the proposed regulations is the correct interpretation of the statute. Applicable case law establishes that a difference in language between one statutory provision and the next immediately following provision should be given meaning. See Loughrin v. United States, 573 U.S. __,134 S. Ct. 2384, 2390 (2014) (“We have often noted that when `Congress includes particular language in one section of a statute but omits it in another'—let alone in the very next provision—this Court `presume[s]' that Congress intended a difference in meaning.” (quoting Russello v. United States, 464 U.S. 16, 23 (1983)). To read subclause (II) to require that subclause II benefits be suspended “to the maximum extent permissible” even though that language does not appear in subclause (II) would effectively rewrite the statute either by moving the phrase the “to the maximum extent permissible” from subclause (I) to the introductory language of section 432(e)(9)(D)(vii) or by adding it to subclause (II).3 The interpretation in the proposed regulations is also consistent with the language in subclause (II) (“except as provided in subclause (III)”), which contemplates a coordinated application of two provisions that are to be applied “second” and “third;” this language in subclause (II) is not consistent with an interpretation that requires application of a suspension to subclause II benefits that is independent of (and entirely preceding) the application of the suspension to subclause III benefits.

    3See Hall v. United States, 566 U.S. __, 132 S. Ct. 1882, 1893 (2012) (“[I]t is not for us to rewrite the statute.”)

    Kirtsaeng, which the one commenter cited to contest this interpretation in the proposed regulations, involved two phrases that “mean roughly the same thing.” Id. at 1358-59, 1364 (“The language of [the relevant statute] read literally favors [petitioner's] interpretation, namely, that `lawfully made under this title' means made `in accordance with' or `in compliance with' the Copyright Act.”). There are no “roughly” similar phrases across subclauses (I) and (II). Kirtsaeng is therefore inapposite.4

    4Kirtsaeng is further inapposite because the statutory provisions of the Copyright Act that were compared to each other in that case (i.e., 17 U.S.C. 109 and 602) were not in immediate proximity to each other unlike the subclauses at issue here.

    The Treasury Department and the IRS recognize that the language of section 432(e)(9)(D)(vii) bears some similarity to other statutory provisions that establish priority categories requiring claims to be fully satisfied under each earlier category before any claims are permitted to be satisfied under any subsequent category—for example, section 4044(a) of ERISA and sections 507(a) and 726(a) and (c) of the Bankruptcy Code, which in each instance prescribes ordering rules relating to the distribution of limited assets. However, in contrast to the language in section 432(e)(9)(D)(vii), these other statutory provisions do not include language in one category instructing that the category must be fully exhausted before reaching the next category, while omitting that language in other categories. Furthermore, if the ordinal numbering of section 432(e)(9)(D)(vii) were to be interpreted to require that each category be fully exhausted before reaching the next category, then the phrase “to the maximum extent permissible” in subclause (I) would not serve any purpose and would be superfluous.5

    5See Marx v. General Revenue Corp., 568 U.S.__, 133 S. Ct. 1166, 1178 (2013) (“[T]he canon against surplusage is strongest when an interpretation would render superfluous another part of the same statutory scheme.”).

    The broad scope of benefits included in subclause (III) further supports the conclusion that a suspension need not be applied to the maximum extent permissible to subclause II benefits before any suspension is applied to subclause III benefits. As explained in Section D of this preamble, subclause III benefits include all benefits that are directly attributable to service with a subclause III employer, without regard to whether those benefits are subject to a make-whole agreement. If subclause II benefits were required to be reduced to the maximum extent permissible before any subclause III benefits could be reduced (including subclause III benefits not subject to a make-whole agreement), then participants with subclause III benefits who are not subject to the make-whole agreement could experience significantly smaller reductions than participants with subclause II benefits (including benefits attributable to service with employers that never withdrew from the plan), without regard to whether that difference is consistent with the equitable distribution requirement.

    For these reasons, these final regulations adopt the rule under the proposed regulations that subclause II benefits are not required to be suspended “to the maximum extent permissible” before any suspension is permitted to be applied to subclause III benefits.

    III. Standard for Application of Suspension to Subclause III Benefits Relative to Subclause II Benefits

    In order to give effect to the requirement that a suspension of benefits be applied “second” to subclause II benefits and “third” to subclause III benefits, the proposed regulations provided that a suspension would not be permitted to reduce subclause III benefits unless subclause II benefits were reduced to at least the same extent as subclause III benefits were reduced. Under the proposed regulations, this limitation would be satisfied if no participant's benefits that are directly attributable to service with a subclause III employer were reduced more than that participant's benefits would have been reduced if, holding constant the benefit formula, work history, and all relevant factors used to compute benefits, those benefits were attributable to service with any other employer. The effect of the proposed rule is to protect a subclause III employer from the possibility that the suspension would be expressly designed to take advantage of the employer's commitment to make participants and beneficiaries whole for the reductions.

    Most commenters agreed with the analysis set forth in the preamble to the proposed regulations and supported the rule that a suspension would not be permitted to reduce subclause III benefits unless subclause II benefits are reduced to at least the same extent. However, one commenter maintained that, if the Treasury Department and the IRS were to adopt the rule set forth in the proposed regulations intended to protect a subclause III employer, then the rule should be modified to prohibit facially neutral suspension provisions that have a disparate impact on subclause III benefits or that are intentionally designed to produce such an impact. Under such a rule, a suspension of benefits that disproportionally reduces subclause III benefits in the aggregate relative to subclause II benefits in the aggregate would be prohibited under section 432(e)(9)(D)(vii) even if the suspension does not by its terms treat individuals with subclause III benefits in a less favorable manner than similarly situated individuals with subclause II benefits.

    Nothing in the statute or preexisting case law requires the application of a disparate impact standard. Both Congress and the Supreme Court have required such a standard only in the unique context in which “barriers operate invidiously to discriminate on the basis of racial or other impermissible classification,” Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971); see, e.g., 42 U.S.C. 2000e-2(k)(1)(A)(i) (prohibiting “a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin”); see also Texas Department of Housing and Community Affairs, et al., v. Inclusive Communities Project, Inc., et al., 576 U. S. ___, 135 S. Ct. 2507, 2513 (2015) (“a disparate-impact claim challenges practices that have a `disproportionately adverse effect on minorities' and are otherwise unjustified by a legitimate rationale”). Those unique circumstances are not present here.

    After considering the public comments, the Treasury Department and the IRS have determined that the rule set forth in the proposed regulations appropriately protects a subclause III employer from the possibility that the suspension would be expressly designed to take advantage of the employer's commitment to make participants and beneficiaries whole for the reductions in a manner that is most consistent with all of the statutory language.6 However, in response to comments identifying potential ambiguities in the proposed regulations, the application of this rule in the final regulations has been clarified. Accordingly, these final regulations provide that a suspension does not violate the required relationship between subclause III benefits and subclause II benefits if no individual's benefits that are subclause III benefits are reduced more than that individual's benefits would have been reduced if, holding constant the benefit formula, work history, and all other relevant factors used to determine the individual's benefits, those benefits were attributable to service with any other employer.

    6 The preamble to the proposed regulations requested comments on an alternative interpretation of section 432(e)(9)(vii) that would require that any suspension of benefits be applied to provide for a lesser reduction in benefits that are directly attributable to service with a subclause III employer than to benefits that are attributable to any other service. No commenters recommended adopting the alternative interpretation.

    IV. Treatment of Participants With Service for a Subclause III Employer Who Are Not Covered by a Make-Whole Agreement

    The proposed regulations provided that the benefits described in section 432(e)(9)(D)(vii)(III) are any benefits that are directly attributable to a participant's service with a subclause III employer, without regard to whether the employer has assumed liability for providing benefits to the participant or beneficiary that were reduced as a result of the financial status of the plan. For example, if, before the date a subclause III employer entered into a make-whole agreement, a participant commenced receiving retirement benefits under a plan that are directly attributable to service with that employer, then the participant's benefits would be described in section 432(e)(9)(D)(vii)(III) even if those benefits were not covered by the make-whole agreement. This interpretation is based on the statutory language in section 432(e)(9)(D)(vii)(III), which defines the benefits to which that subclause applies as those benefits that are directly attributable to service with an employer that has met the conditions set forth in section 432(e)(9)(D)(vii)(III)(aa) and (bb). In other words, the statutory provision refers to benefits directly attributable to service with an employer described in subclause (III) and not only to benefits covered by the make-whole agreement.

    Some of the commenters on the proposed regulations expressed views regarding whether subclause III benefits should include benefits that are not covered by a make-whole agreement. Two commenters supported the rule set forth in the proposed regulations, under which subclause III benefits include all benefits directly attributable to service with a subclause III employer. Two other commenters expressed the view that subclause III benefits include only benefits that are covered by a make-whole agreement. The latter two commenters asserted that Congress included this provision in order to prevent a suspension from unreasonably shifting costs onto an employer that had entered into a make-whole agreement, and that this Congressional intent suggests that only benefits subject to the make-whole agreement were intended to be protected. They also noted that interpreting this provision to include benefits that are not covered by a make-whole agreement could result in benefits for many participants being covered under subclause III even if an employer entered into a make-whole agreement covering only a few participants, and argued that Congress did not intend such a result.

    After considering the public comments, the Treasury Department and the IRS remain convinced that the rule set forth in the proposed regulations reflects the plain language of the statute. The statute defines subclause III benefits as benefits attributable to service with a subclause III employer, not benefits covered by a make-whole agreement. Furthermore, the ability of an employer to take advantage of this interpretation by entering into a make-whole agreement that covers only a few participants is limited by the fact that subclause (III) applies only if all the conditions of subclause (III) (including the condition that the employer enter into a make-whole agreement) were satisfied prior to December 16, 2014 (the date of enactment of MPRA). Because this date has passed, there is no cause for concern that an employer could plan to become a subclause (III) employer. Accordingly, these regulations adopt the rule set forth in the proposed regulations under which subclause III benefits include all benefits attributable to a participant's service with a subclause III employer without regard to whether the participant or beneficiary is covered by a make-whole agreement.

    Effective/Applicability Dates

    These regulations apply to suspensions for which the approval or denial is issued on or after April 26, 2016. In the case of a systemically important plan, these regulations apply with respect to any modified suspension implemented on or after April 26, 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 also has been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations.

    The Regulatory Flexibility Act (RFA) (5 U.S.C. chapter 6) requires an agency to consider whether the rules it proposes will have a significant economic impact on a substantial number of small entities. In this case, the IRS and the Treasury Department believe that the regulations likely would not have a “significant economic impact on a substantial number of small entities.” 5 U.S.C. 605. This certification is based on the fact that the number of small entities affected by this rule is unlikely to be substantial because it is unlikely that a substantial number of small multiemployer plans in critical and declining status are subject to the limitation contained in section 432(e)(9)(D)(vii). Pursuant to section 7805(f) of the Code, the notice of proposed rulemaking preceding these regulations was submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business.

    Contact Information

    For general questions regarding these regulations, please contact the Department of the Treasury MPRA guidance information line at (202) 622-1559 (not a toll-free number). For information regarding a specific application for a suspension of benefits, please contact the Treasury Department at (202) 622-1534 (not a toll-free number).

    List of Subjects in 26 CFR Part 1

    Income taxes, Reporting and recordkeeping requirements.

    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 continues to read in part as follows: Authority:

    26 U.S.C. 7805 * * *

    Par. 2. Section 1.432(e)(9)-1 is amended by revising paragraph (d)(8) to read as follows:
    § 1.432(e)(9)-1 Benefit suspensions for multiemployer plans in critical and declining status.

    (d) * * *

    (8) Additional rules for plans described in section 432(e)(9)(D)(vii)—(i) In general. In the case of a plan that includes the benefits described in paragraph (d)(8)(i)(C) of this section, any suspension of benefits under this section shall—

    (A) First, be applied to the maximum extent permissible to benefits attributable to a participant's service for an employer that withdrew from the plan and failed to pay (or is delinquent with respect to paying) the full amount of its withdrawal liability under section 4201(b)(1) of ERISA or an agreement with the plan;

    (B) Second, except as provided by paragraph (d)(8)(i)(C) of this section, be applied to all other benefits that may be suspended under this section; and

    (C) Third, be applied to benefits under a plan that are directly attributable to a participant's service with any employer that has, prior to December 16, 2014—

    (1) Withdrawn from the plan in a complete withdrawal under section 4203 of ERISA and paid the full amount of the employer's withdrawal liability under section 4201(b)(1) of ERISA or an agreement with the plan; and

    (2) Pursuant to a collective bargaining agreement, assumed liability for providing benefits to participants and beneficiaries of the plan under a separate, single-employer plan sponsored by the employer, in an amount equal to any amount of benefits for such participants and beneficiaries reduced as a result of the financial status of the plan.

    (ii) Application of suspensions to benefits that are directly attributable to a participant's service with certain employers—(A) Greater reduction in certain benefits not permitted. A suspension of benefits under this section must not be applied to provide for a greater reduction in benefits described in paragraph (d)(8)(i)(C) of this section than the reduction that is applied to benefits described in paragraph (d)(8)(i)(B) of this section. The requirement in the preceding sentence is satisfied if no individual's benefits that are directly attributable to service with an employer described in paragraph (d)(8)(i)(C) of this section are reduced more than that individual's benefits would have been reduced if, holding the benefit formula, work history, and all other relevant factors used to compute benefits constant, those benefits were attributable to service with an employer that is not described in paragraph (d)(8)(i)(C) of this section.

    (B) Application of limitation to benefits of participants with respect to which the employer has not assumed liability. Benefits described in paragraph (d)(8)(i)(C) of this section include all benefits of a participant or beneficiary that are directly attributable to service with an employer described in paragraph (d)(8)(i)(C) of this section without regard to whether the employer has assumed liability for providing benefits to that participant or beneficiary that are reduced as a result of the financial status of the plan as described in paragraph (d)(8)(i)(C)(2) of this section. Thus, the rule of paragraph (d)(8)(ii)(A) of this section limits the amount by which a suspension of benefits is permitted to reduce benefits under a plan that are directly attributable to a participant's service with such an employer, even if the employer has not, pursuant to a collective bargaining agreement that satisfies the requirements of paragraph (d)(8)(i)(C)(2) of this section, assumed liability with respect to that participant's benefits.

    John Dalrymple, Deputy Commissioner for Services and Enforcement. Approved: April 29, 2016. Mark J. Mazur, Assistant Secretary of the Treasury (Tax Policy).
    [FR Doc. 2016-10560 Filed 5-3-16; 4:15 pm] BILLING CODE 4830-01-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 110 [Docket Number USCG-2015-0825] RIN 1625-AA01 Anchorage Regulations; Delaware River, Philadelphia, PA AGENCY:

    Coast Guard, DHS.

    ACTION:

    Final rule.

    SUMMARY:

    The Coast Guard is amending the geographic coordinates and modifying the regulated use of anchorage “10” in the Delaware River in the vicinity of the Navy Yard in Philadelphia, Pennsylvania. The change alters the size and use of the anchorage, reducing the anchorage in size and allowing the anchorage to be used as a general anchorage ground in the Delaware River.

    DATES:

    This rule is effective June 6, 2016.

    ADDRESSES:

    To view documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov, type USCG-2015-0825 in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this rule.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions about this rulemaking, call or email Lieutenant Brennan Dougherty, U.S. Coast Guard Sector Delaware Bay, Chief Waterways Management Division; telephone (215) 271-4851, 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 COTP Captain of the Port II. Background Information and Regulatory History

    On December 12, 1967, the Coast Guard published a final rule (32 FR 17726, 17749) establishing an anchorage ground on the Delaware River in Philadelphia, Pennsylvania in 33 CFR part 110. The anchorage ground established is contained in 33 CFR 110.157(a)(11). The anchorage currently remains unused by the Navy Yard. Removing the restrictions on anchorage “10” will alleviate congestion within the port, allowing the anchorage to be used as a general anchorage for commercial traffic.

    On January 5, 2016, the Coast Guard published a notice of proposed rulemaking (NPRM) titled Anchorage Regulations, Delaware River; Philadelphia, PA (81 FR 194). It proposed to change the shape and the dimensions of anchorage “10”, and to remove the “restricted naval anchorage” verbiage from § 110.157(a)(11). We invited comments on this proposed change. During the comment period that ended February 4, 2016, we received no public comments, but we did receive a comment from National Oceanic and Atmospheric Administration (NOAA) which we discuss below.

    III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 33 U.S.C. 471, 1221 through 1236, and 2071; and in 33 CFR 1.05-1.

    This rule changes the shape and the dimensions of anchorage “10.” The anchorage currently remains unused by the Navy Yard. Removing the restrictions on anchorage “10” will alleviate congestion within the port by allowing the anchorage to be used as a general anchorage ground for commercial traffic.

    IV. Discussion of Comments, Changes, and the Rule

    As noted above, we received no public comments on our NPRM published January 5, 2016. Based on comments from NOAA, however, we make two changes in the regulatory text of this rule from our proposed.

    The first change identifies the horizontal reference datum for the latitudes and longitudes of the boundaries of the anchorage grounds as the World Geodetic System 1984 (WGS 84). The second change replaces the verbiage “West Horseshoe Range” with “Eagle Point Range” within the anchorage rule text. The original anchorage regulation, 33 CFR 110.157(a)(11) Anchorage 10, uses “West Horseshoe Range” as a boundary reference, however, the National Oceanic and Atmospheric Administration (NOAA) Nautical Charts identifies the range as “Eagle Point Range”. Therefore, we changed the boundary reference in our rule from “West Horseshoe Range” to “Eagle Point Range.”

    The revised anchorage ground runs parallel to the north side of the channel along Eagle Point range, is narrower north to south, and is slightly longer east to west than the existing anchorage ground. Additionally, as proposed, we removed the “restricted naval anchorage” verbiage from the regulation. This permits commercial and other vessels to anchor within its bounds. The regulatory text appears at the end of this document.

    V. Regulatory Analyses

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

    A. Regulatory Planning and Review

    E.O.s 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. E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, it has not been reviewed by the Office of Management and Budget.

    This rule is not a significant regulatory action because it will not interfere with existing maritime activity on the Delaware River. Moreover, it enhances navigational safety along the Delaware River by providing an additional anchorage for commercial and recreational vessels. The anchorage maintains the same parallel distance along the channel boundaries as the existing anchorage. The impacts to navigational safety are expected to be minimal because the anchorage area will not unnecessarily restrict traffic, as it is located outside of the established navigation channel. Vessels may navigate in, around, and through the anchorage.

    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 received no comments from the Small Business Administration on this rulemaking. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

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

    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 rule. If the rule does 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.

    Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

    C. Collection of Information

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

    D. Federalism and Indian Tribal 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 rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order13132.

    Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does 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 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 rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

    F. Environment

    We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (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 rule involves the alteration of the size and use of anchorage “10,” restricted Naval Anchorage. It is categorically excluded from further review under paragraph 34(f) of Figure 2-1 of Commandant Instruction M16475.lD. An environmental analysis checklist supporting this determination and a Categorical Exclusion Determination are available in the docket where indicated under ADDRESSES. We seek any comments or information that may lead to the discovery of a significant environmental impact from this rule.

    List of Subjects in 33 CFR Part 110

    Anchorage grounds.

    For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 110 as follows:

    PART 110—ANCHORAGE REGULATIONS 1. The authority citation for part 110 continues to read as follows: Authority:

    33 U.S.C. 471, 1221 through 1236, 2071; 33 CFR 1.05-1; Department of Homeland Security Delegation No. 0170.1.

    2. Revise § 110.157(a)(11) to read as follows:
    § 110.157 Delaware Bay and River.

    (a) * * *

    (11) Anchorage 10 at Naval Base, Philadelphia. On the north side of the channel along Eagle Point Range, bounded as follows: Beginning off of the southeasterly corner of Pier 1 at 39°53′07″ N., 075°10′30″ W., thence south to the to the north edge of the channel along Eagle Point Range to 39°52′58″ N., 075°10′29″ W., thence east along the edge of the channel to 39°52′56″ N., 075°09′53″ W., thence north to 39°53′07″ N., 075°09′54″ W., thence continuing west to the beginning point at 39°53′07″ N., 075°10′30″ W. These coordinates are based on WGS 84.

    Dated: April 22, 2016. Robert J. Tarantino, Captain, U.S. Coast Guard, Acting Commander, Fifth Coast Guard District.
    [FR Doc. 2016-10577 Filed 5-4-16; 8:45 am] BILLING CODE 9110-04-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R10-OAR-2015-0855; FRL-9946-00-Region 10] Approval and Promulgation of Implementation Plans; Idaho: Interstate Transport Requirements for the 2010 Nitrogen Dioxide National Ambient Air Quality Standards AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is taking final action to approve a submittal by the Idaho Department of Environmental Quality (Idaho DEQ) demonstrating that the State Implementation Plan (SIP) meets certain interstate transport requirements of the Clean Air Act (CAA) for the National Ambient Air Quality Standards (NAAQS) promulgated for nitrogen dioxide (NO2) on January 22, 2010. Specifically, the Idaho DEQ reviewed monitoring and modeling data to show that sources within Idaho do not significantly contribute to nonattainment, or interfere with maintenance, of the NO2 NAAQS in any other state.

    DATES:

    This action is effective on June 6, 2016.

    ADDRESSES:

    The EPA has established a docket for this action under Docket ID No. EPA-R10-OAR-2015-0855. All documents in the docket are listed on the http://www.regulations.gov Web site. Although listed in the index, some information may not be publicly available, i.e., Confidential Business Information or other information the disclosure of which is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and is publicly available only in hard copy form. Publicly available docket materials are available at http://www.regulations.gov or at EPA Region 10, Office of Air, Waste and Toxics, 1200 Sixth Avenue, Seattle, Washington 98101. The EPA requests that 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 to 4:30, excluding Federal holidays.

    FOR FURTHER INFORMATION CONTACT:

    For information please contact John Chi at (206) 553-1185, or [email protected]

    SUPPLEMENTARY INFORMATION:

    Throughout this document whenever “we,” “us,” or “our” is used, it is intended to refer to the EPA.

    Table of Contents I. Background II. Response to Comment III. Final Action IV. Statutory and Executive Orders Review I. Background

    In a notice of proposed rulemaking published on February 12, 2016 (81 FR 7489), the EPA proposed to find that the Idaho SIP adequately addressed the interstate transport requirements of CAA section 110(a)(2)(D)(i)(I) for the 2010 NO2 NAAQS. Please see our February 12, 2016, proposed rulemaking for further explanation and the basis for our finding. The public comment period for the proposed rule ended on March 14, 2016, and we received one comment.

    II. Response to Comment

    Comment: The commenter stated that the implementation of this law is crucial in Idaho because of the pollution coming from farming communities and cities and suggested lowering the allowed NO2 standard because of the small population of people that live in Idaho, when compared to Utah. The commenter proposed that the amount of pollution produced by each person should be made a standard and that companies should be held accountable for the pollution they produce. Although the commenter supports approval, the commenter believes that the law should have stricter requirements.

    Response: Under section 110 of the CAA, states are responsible for developing provisions to address air pollution for incorporation into the SIP. The EPA's role is to evaluate these state choices to determine if the revisions meet the requirements of the CAA. The EPA must approve state submissions so long as they meet the minimum requirements established by the CAA. Union Electric Co. v. EPA, 427 U.S. 246 (1976). In this case, the state's submission included provisions selected by Idaho for inclusion in its SIP to meet the CAA section 110(a)(2)(D)(i)(I) interstate transport requirements for the 2010 NO2 NAAQS. The commenter does not suggest that the state's submission does not meet the applicable requirements. We have determined that the state's submission met those requirements, and thus we are approving the SIP. States have authority to adopt or enforce standards or requirements for the control or abatement of air pollution (except as specifically limited by the CAA) under section 116 of the CAA, so we provided a copy of the comment to Idaho Department of Environmental Quality for consideration during future state rulemaking, but we are otherwise taking no further action in response to the comment.

    III. Final Action

    The EPA finds that the Idaho SIP meets the interstate transport requirements of CAA section 110(a)(2)(D)(i)(I) for the 2010 NO2 NAAQS. This action is being taken under section 110 of the CAA.

    IV. Statutory and Executive Orders Review

    Under the Clean Air Act, 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 Clean Air Act. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

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

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

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

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

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

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

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

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

    • Does not provide 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, February 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 it will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. The 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 Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by July 5, 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, Nitrogen dioxide, Reporting and recordkeeping requirements.

    Dated: April 25, 2016. Dennis J. McLerran, Regional Administrator, Region 10.

    For the reasons set forth in the preamble, 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 N—Idaho 2. In § 52.670, the table in paragraph (e) is amended by adding an entry at the end of the table for “Interstate Transport Requirements for the 2010 NO2 NAAQS” to read as follows:
    § 52.670 Identification of plan.

    (e) * * *

    EPA-Approved Idaho Nonregulatory Provisions and Quasi-Regulatory Measures Name of SIP provision Applicable geographic or non-attainment area State
  • submittal date
  • EPA Approval date Comments
    *         *         *         *         *         *         * Interstate Transport Requirements for the 2010 NO2 NAAQS State-wide 12/24/2015 5/5/2016 [Insert Federal Register citation] This action addresses the following CAA elements: 110(a)(2)(D)(i)(I).
    [FR Doc. 2016-10452 Filed 5-4-16; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 180 [EPA-HQ-OPP-2015-0324; FRL-9945-48] Fluxapyroxad; Pesticide Tolerances AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    This regulation establishes tolerances for residues of fluxapyroxad in or on multiple commodities which are identified and discussed later in this document. BASF Corporation requested these tolerances under the Federal Food, Drug, and Cosmetic Act (FFDCA).

    DATES:

    This regulation is effective May 5, 2016. Objections and requests for hearings must be received on or before July 5, 2016, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the SUPPLEMENTARY INFORMATION).

    ADDRESSES:

    The docket for this action, identified by docket identification (ID) number EPA-HQ-OPP-2015-0324, is available at http://www.regulations.gov or at the Office of Pesticide Programs Regulatory Public Docket (OPP Docket) in the Environmental Protection Agency Docket Center (EPA/DC), West William Jefferson Clinton Bldg., Rm. 3334, 1301 Constitution Ave. NW., Washington, DC 20460-0001. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the OPP Docket is (703) 305-5805. Please review the visitor instructions and additional information about the docket available at http://www.epa.gov/dockets.

    FOR FURTHER INFORMATION CONTACT:

    Susan Lewis, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001; main telephone number: (703) 305-7090; email address: [email protected]

    SUPPLEMENTARY INFORMATION:

    I. General Information A. Does this action apply to me?

    You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:

    • Crop production (NAICS code 111).

    • Animal production (NAICS code 112).

    • Food manufacturing (NAICS code 311).

    • Pesticide manufacturing (NAICS code 32532).

    B. How can I get electronic access to other related information?

    You may access a frequently updated electronic version of EPA's tolerance regulations at 40 CFR part 180 through the Government Printing Office's e-CFR site at http://www.ecfr.gov/cgi-bin/text-idx?&c=ecfr&tpl=/ecfrbrowse/Title40/40tab_02.tpl. To access the OCSPP test guidelines referenced in this document electronically, please go to http://www.epa.gov/ocspp and select “Test Methods and Guidelines.”

    C. How can I file an objection or hearing request?

    Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2015-0324 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before July 5, 2016. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

    In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2015-0324, by one of the following methods:

    Federal eRulemaking Portal: http://www.regulations.gov. Follow the online instructions for submitting comments. Do not submit electronically any information you consider to be CBI or other information whose disclosure is restricted by statute.

    Mail: OPP Docket, Environmental Protection Agency Docket Center (EPA/DC), (28221T), 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001.

    Hand Delivery: To make special arrangements for hand delivery or delivery of boxed information, please follow the instructions at http://www.epa.gov/dockets/contacts.html.

    Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at http://www.epa.gov/dockets.

    II. Summary of Petitioned-for Tolerance

    In the Federal Register of August 26, 2015 (80 FR 51759) (FRL-9931-74), EPA issued a document pursuant to FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP 5F8344) by BASF Corporation, 26 Davis Drive, Research Triangle Park, NC 27709. The petition requested that 40 CFR 180.666 be amended by establishing tolerances for residues of the fungicide fluxapyroxad, in or on citrus, dried pulp at 2.7 parts per million (ppm); citrus oil at 19 ppm; fruit, citrus group 10-10 at 1.0 ppm; grass forage, fodder and hay group 17 at 30 ppm; non-grass animal feed, group 18 at 30 ppm; and poultry, fat at 0.005 ppm. The petition also requested that the existing tolerance for residues of fluxapyroxad on egg be amended from 0.002 ppm to 0.01 ppm and that the tolerance for inadvertent residues of fluxapyroxad on nongrass animal feeds, group 18 at 0.3 ppm be removed upon establishment of the superceding group 18 tolerance. That document referenced a summary of the petition prepared by BASF Corporation, the registrant, which is available in the docket, http://www.regulations.gov. There were no comments received in response to the notice of filing.

    Based upon review of the data supporting the petition, EPA has recommended tolerances for poultry meat, poultry meat byproduct, and milk fat for which there were no established tolerances previously due to low dietary burden and falling under category 3 of CFR 180.6(a). The reason for these changes are explained in Unit IV.D.

    III. Aggregate Risk Assessment and Determination of Safety

    Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue.* * *”

    Consistent with FFDCA section 408(b)(2)(D), and the factors specified in FFDCA section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for fluxapyroxad including exposure resulting from the tolerances established by this action. EPA's assessment of exposures and risks associated with fluxapyroxad follows.

    A. Toxicological Profile

    EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children.

    Fluxapyroxad is of low acute toxicity by the oral, dermal and inhalation routes, is not irritating to the eyes and skin, and is not a dermal sensitizer. The primary target organ for fluxapyroxad exposure via the oral route is the liver with secondary toxicity in the thyroid for rats only. Liver toxicity was observed in rats, mice, and dogs, with rats as the most sensitive species for all durations of exposure. In rats, adaptive effects of hepatocellular hypertrophy and increased liver weights and changes in liver enzyme activities were first observed. As the dose or duration of exposure to fluxapyroxad increased, clinical chemistry changes related to liver function also occurred, followed by hepatocellular necrosis, neoplastic changes in the liver, and tumors. Thyroid effects were observed only in rats. These effects were secondary to changes in liver enzyme regulation, which increased metabolism of thyroid hormone, resulting in changes in thyroid hormones, thyroid follicular hypertrophy and hyperplasia, and thyroid tumor formation. Tumors were not observed in species other than rats or in organs other than the liver and thyroid.

    Fluxapyroxad is classified as “Not likely to be Carcinogenic to Humans” based on convincing evidence that carcinogenic effects are not likely below a defined dose range. There is no mutagenicity concern from in vivo or in vitro assays. The hypothesized mode of action (i.e., a non-genotoxic) for treatment related tumors (i.e., the liver and thyroid) was supported by a full panel of in vitro and in vivo studies that showed no evidence of genotoxicity, together with mechanistic studies in the liver and thyroid of rats that satisfied stringent criteria for establishing tumorigenic modes of action. The studies clearly identified the sequence of key events, dose-response concordance and temporal relationship to the tumor types. The Agency has determined that the chronic population adjusted dose (PAD) will adequately account for all chronic effects, including carcinogenicity that could result from exposure to fluxapyroxad because the points of departure (POD) for the chronic population adjusted dose (cPAD) is based on the most sensitive endpoint, liver effects. Effects in the liver preceded liver tumors and the effects observed in the thyroid (in rats only) were believed to be secondary to the liver effects.

    No evidence of neurotoxicity was observed in response to repeated administration of fluxapyroxad. An acute neurotoxicity study showed decreased rearing and motor activity. This occurred on the day of dosing only and in the absence of histopathological effects or alterations in brain weights. This indicated that any neurotoxic effects of fluxapyroxad are likely to be transient and reversible due to alterations in neuropharmacology and not from neuronal damage. There were no neurotoxic effects observed in the subchronic dietary toxicity study. No evidence of reproductive toxicity was observed. Developmental effects observed in both rats and mice (thyroid follicular hypertrophy and hyperplasia in rats and decreased defecation, food consumption, body weight/body weight gain, and increased litter loss in rabbits) occurred at the same doses as those that caused adverse effects in maternal animals, indicating no quantitative susceptibility. Since the maternal toxicities of thyroid hormone perturbation in rats and systemic toxicity in rabbits likely contributed to the observed developmental effects there is low concern for qualitative susceptibility. An immunotoxicity study in mice showed no evidence of immunotoxic effects from fluxapyroxad.

    Subchronic oral toxicity studies in rats, developmental toxicity studies in rabbits, and in vitro and in vivo genotoxicity studies were performed for fluxapyroxad metabolites F700F001, M700F002, and M700F048. Like fluxapyroxad, no genotoxic effects were observed for any of these metabolites. All three metabolites displayed lower subchronic toxicity via the oral route than fluxapyroxad, with evidence of non-specific toxicity (decreased body weight) observed only for M700F0048 at the limit dose. Only M700F0048 exhibited developmental toxicity at doses similar to those that caused developmental effects in rabbits with fluxapyroxad treatment. However, these effects (abortions and resorptions) were of a different nature than for fluxapyroxad (paw hyperflexion) and are considered secondary to maternal toxicity. The Agency considers these studies sufficient for hazard identification and characterization and concludes that these metabolites do not have hazards that exceed those of fluxapyroxad in nature, severity, or potency.

    Specific information on the studies received and the nature of the adverse effects caused by fluxapyroxad as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies can be found at http://www.regulations.gov in document, “Human Health Risk Assessment for Use of Fluxaproxad on Citrus Crop Group 10-10, Grass Crop Group 17, and Non-Grass Crop Group 18.” on pp. 56 in docket ID number EPA-HQ-OPP-2012-0638.

    B. Toxicological Points of Departure/Levels of Concern

    Once a pesticide's toxicological profile is determined, EPA identifies toxicological points of departure (POD) and levels of concern to use in evaluating the risk posed by human exposure to the pesticide. For hazards that have a threshold below which there is no appreciable risk, the toxicological POD is used as the basis for derivation of reference values for risk assessment. PODs are developed based on a careful analysis of the doses in each toxicological study to determine the dose at which no adverse effects are observed (the NOAEL) and the lowest dose at which adverse effects of concern are identified (the LOAEL). Uncertainty/safety factors are used in conjunction with the POD to calculate a safe exposure level—generally referred to as a population-adjusted dose (PAD) or a reference dose (RfD)—and a safe margin of exposure (MOE). For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk. Thus, the Agency estimates risk in terms of the probability of an occurrence of the adverse effect expected in a lifetime. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, see http://www.epa.gov/pesticides/factsheets/riskassess.htm.

    Summary of the toxicological endpoints for used for human risk assessment is shown in Table 1 of this unit.

    Table 1—Summary of Toxicological Doses and Endpoints for Fluxapyroxad for Use in Dietary, Residential and Non-Occupational Human Health Risk Assessments Exposure/scenario Point of
  • departure
  • Uncertainty/FQPA
  • safety
  • factors
  • RfD, PAD, level of concern
  • for risk
  • assessment
  • Study and toxicological effects
    Acute Dietary (General Population, including Infants and Children and Females 13-49 years of age) NOAEL = 125 mg/kg/day UFA = 10x
  • UFH = 10x
  • FQPA SF = 1x
  • Acute RfD = 1.25 mg/kg/day
  • aPAD = 1.25 mg/kg/day
  • Acute neurotoxicity study in rats.
  • LOAEL = 500 mg/kg/day based on decreased motor activity (both sexes) and decreased rearing (males only).
  • Chronic Dietary (All Populations) NOAEL = 2.1 mg/kg/day UFA = 10x
  • UFH = 10x
  • FQPA SF = 1x
  • Chronic RfD = 0.021 mg/kg/day
  • cPAD = 0.021 mg/kg/day
  • Chronic toxicity/carcinogenicity study in rats.
  • LOAEL = 11 mg/kg/day based on non-neoplastic changes in the liver (foci, masses).
  • Incidental Oral Short-Term (1-30 days) NOAEL = 7.3mg/kg/day UFA = 10x
  • UFH = 10x
  • FQPA SF = 1x
  • Residential LOC for MOE = 100 90-day dietary study in rats.
  • MIRD 47923567.
  • LOAEL = 35.1 mg/kg/day based on thyroid follicular hypertrophy/hyperplasia.
  • Dermal Short- and Intermediate-Term No hazard identified. Inhalation, Short-Term (1-30 days) and Intermediate-term (1-6 months) NOAEL = 7.3 mg/kg/day UFA = 10x
  • UFH = 10x
  • FQPA SF = 1x
  • Residential LOC for MOE = 100 90-day dietary study in rats.
  • MIRD 47923567.
  • LOAEL = 35.1 mg/kg/day based on thyroid follicular hypertrophy/hyperplasia.
  • Cancer (oral, dermal, inhalation) Classification: Not likely to be carcinogenic to humans below a defined dose range. Point of Departure (POD) = A data point or an estimated point that is derived from observed dose-response data and used to mark the beginning of extrapolation to determine risk associated with lower environmentally relevant human exposures. NOAEL = no observed adverse effect level. LOAEL = lowest observed adverse effect level. UF = uncertainty factor. UFA = extrapolation from animal to human (interspecies). UFH = potential variation in sensitivity among members of the human population (intraspecies). FQPA SF = FQPA Safety Factor. PAD = population adjusted dose (a = acute, c = chronic). RfD = reference dose. MOA = mode of action.
    C. Exposure Assessment

    1. Dietary exposure from food and feed uses. In evaluating dietary exposure to fluxapyroxad, EPA considered exposure under the petitioned-for tolerances as well as all existing fluxapyroxad tolerances in 40 CFR 180.666. EPA assessed dietary exposures from fluxapyroxad in food as follows:

    i. Acute exposure. Quantitative acute dietary exposure and risk assessments are performed for a food-use pesticide, if a toxicological study has indicated the possibility of an effect of concern occurring as a result of a 1-day or single exposure. Such effects were identified for fluxapyroxad. In estimating acute dietary exposure, EPA used food consumption information from the United States Department of Agriculture (USDA) 2003-2008 Nationwide Continuing Surveys of Food Intake by Individuals (CSFII). As to residue levels in food, EPA used tolerance-level residues adjusted to account for the metabolites of concern (M700F008, and M700F010 (milk only)) and 100 percent crop treated (PCT) assumptions were used. DEEM default and empirical processing factors were used to modify the tolerance values.

    ii. Chronic exposure. In conducting the chronic dietary exposure assessment EPA used the food consumption data from the USDA 2003-2008 CSFII. As to residue levels in food, a moderately refined chronic dietary exposure analysis was performed for the general U.S. population and various population subgroups. Combined average residue for parent and highest residue for metabolite M700F008 and 100 PCT assumptions were used. For livestock commodities tolerance-level residues adjusted to account for the metabolites of concern (M700F008, M700F010) were used. An assumption of 100 PCT was also used for the chronic dietary analysis. DEEM default and empirical processing factors were used to modify the tolerance values.

    iii. Cancer. Based on the data summarized in Unit III.A., EPA has concluded that fluxapyroxad does not pose a cancer risk to humans. Therefore, a dietary exposure assessment for the purpose of assessing cancer risk is unnecessary.

    iv. Anticipated residue and percent crop treated (PCT) information. Section 408(b)(2)(E) of FFDCA authorizes EPA to use available data and information on the anticipated residue levels of pesticide residues in food and the actual levels of pesticide residues that have been measured in food. If EPA relies on such information, EPA must require pursuant to FFDCA section 408(f)(1) that data be provided 5 years after the tolerance is established, modified, or left in effect, demonstrating that the levels in food are not above the levels anticipated. For the present action, EPA will issue such data call-ins as are required by FFDCA section 408(b)(2)(E) and authorized under FFDCA section 408(f)(1). Data will be required to be submitted no later than 5 years from the date of issuance of these tolerances.

    The Agency did not use PCT information in the dietary assessment for fluxapyroxad; 100 PCT was assumed for all food commodities.

    2. Dietary exposure from drinking water. The Agency used screening-level water exposure models in the dietary exposure analysis and risk assessment for fluxapyroxad in drinking water. These simulation models take into account data on the physical, chemical, and fate/transport characteristics of fluxapyroxad. Further information regarding EPA drinking water models used in pesticide exposure assessment can be found at http://www.epa.gov/oppefed1/models/water/index.htm.

    Based on the Pesticide Root Zone Model Ground Water (PRZM GW), the estimated drinking water concentrations (EDWCs) of fluxapyroxad for acute exposures are 127 ppb parts per billion (ppb) for surface water and 203 ppb for ground water. The EDWCs for chronic exposures for non-cancer assessments are 127 ppb for surface water and 188 ppb for ground water.

    Modeled estimates of drinking water concentrations were directly entered into the dietary exposure model. For acute dietary risk assessment, the water concentration value of 203 ppb was used to assess the contribution to drinking water. For chronic dietary risk assessment, the water concentration value of 184 ppb was used to assess the contribution to drinking water.

    3. From non-dietary exposure. The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure (e.g., for lawn and garden pest control, indoor pest control, termiticides, and flea and tick control on pets).

    There are no residential exposure associated with the proposed uses in this action; however, there are existing turf uses that were previously assessed for fluxapyroxad. Although the Agency had conducted a residential exposure assessment for previous fluxapyroxad actions, the Agency completed an updated turf assessment to reflecting an update in the single maximum application rate from 2.47 pounds active ingredient/gallon (lb ai/gallon) to 0.005 lb ai/gallon. The present assessment assumed the following exposure scenarios:

    Residential handler: The Agency assessed inhalation exposures to adults from applications only because fluxapyroxad does not pose a dermal risk. Residential handler exposure is expected to be short-term in duration. Intermediate-term exposures are not likely because of the intermittent nature of applications by homeowners.

    Post-application exposures: Dermal exposures were not assessed because there is no identified systemic dermal hazard for fluxapyroxad. Post-application inhalation exposure while engaged in activities on or around previously treated turf is generally not quantitatively assessed. The combination of low vapor pressure for chemicals typically used as active ingredients in outdoor residential pesticide products and dilution in outdoor air is likely to result in minimal inhalation exposure. Incidental oral exposure for children is anticipated. The quantitative oral exposure/risk assessment for residential post-application exposures is based on the incidental oral scenario for children 1<2.

    Further information regarding EPA standard assumptions and generic inputs for residential exposures may be found at http://www.epa.gov/pesticides/trac/science/trac6a05.pdf.

    4. Cumulative effects from substances with a common mechanism of toxicity. Section 408(b)(2)(D)(v) of FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.”

    EPA has not found fluxapyroxad to share a common mechanism of toxicity with any other substances, and fluxapyroxad does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has assumed that fluxapyroxad does not have a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's Web site at http://www.epa.gov/pesticides/cumulative.

    D. Safety Factor for Infants and Children

    1. In general. Section 408(b)(2)(C) of FFDCA provides that EPA shall apply an additional tenfold (10X) margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the database on toxicity and exposure unless EPA determines based on reliable data that a different margin of safety will be safe for infants and children. This additional margin of safety is commonly referred to as the FQPA Safety Factor (SF). In applying this provision, EPA either retains the default value of 10X, or uses a different additional safety factor when reliable data available to EPA support the choice of a different factor.

    2. Prenatal and postnatal sensitivity. No evidence of quantitative susceptibility was observed in a reproductive and developmental toxicity study in rats or in developmental toxicity studies in rats and rabbits. Developmental toxicity data in rats showed decreased body weight and body weight gain in the offspring at the same dose levels that caused thyroid follicular hypertrophy/hyperplasia in parental animals. Effects in rabbits were limited to paw hyperflexion, a malformation that is not considered to result from a single exposure and that usually reverses as the animal matures. Developmental effects observed in both rats and rabbits occurred at the same doses as those that caused adverse effects in maternal animals, indicating no quantitative susceptibility. The Agency has low concern for developmental toxicity because the observed effects were of low severity, were likely secondary to maternal toxicity, and demonstrated clear NOAELs. Further, the NOAELs for these effects were at dose levels higher than the points of departure selected for risk assessment for repeat-exposure scenarios. Therefore, based on the available data and the selection of risk assessment endpoints that are protective of developmental effects, there are no residual uncertainties with regard to pre- and/or postnatal toxicity.

    3. Conclusion. EPA has determined that reliable data show the safety of infants and children would be adequately protected if the FQPA SF were reduced to 1X. That decision is based on the following findings:

    i. The toxicity database for fluxapyroxad is complete.

    ii. There is no indication that fluxapyroxad is a neurotoxic chemical and there is no need for a developmental neurotoxicity study or additional UFs to account for neurotoxicity. Although an acute neurotoxicity study showed decreased rearing and motor activity, this occurred on the day of dosing only in the absence of histopathological effects or alterations in brain weights. This indicated that any neurotoxic effects of fluxapyroxad are likely to be transient and reversible due to alterations in neuropharmacology and not from neuronal damage. The Agency has low concern for neurotoxic effects of fluxapyroxad at any life stage.

    iii. Based on the developmental and reproductive toxicity studies discussed in Unit III.D.2., there are no residual uncertainties with regard to prenatal and/or postnatal toxicity.

    iv. There are no residual uncertainties identified in the exposure databases. The residue database is adequate. The dietary risk assessment is conservative and will not underestimate dietary exposure to fluxapyroxad. There are residential uses proposed for fluxapyroxad and the assessment will not underestimate residential exposure via handler for adults and incidental oral for children. EPA made conservative (protective) assumptions in the ground and surface water modeling used to assess exposure to fluxapyroxad in drinking water. EPA used similarly conservative assumptions to assess post application exposure of children as well as incidental oral exposure of toddlers. There are residential uses proposed for fluxapyroxad and the assessment will not underestimate residential exposure via handler for adults and incidental oral for children.

    E. Aggregate Risks and Determination of Safety

    EPA determines whether acute and chronic dietary pesticide exposures are safe by comparing aggregate exposure estimates to the acute PAD (aPAD) and chronic PAD (cPAD). For linear cancer risks, EPA calculates the lifetime probability of acquiring cancer given the estimated aggregate exposure. Short-, intermediate-, and chronic-term risks are evaluated by comparing the estimated aggregate food, water, and residential exposure to the appropriate PODs to ensure that an adequate MOE exists.

    1. Acute risk. Using the exposure assumptions discussed in this unit for acute exposure, the acute dietary exposure from food and water to fluxapyroxad will occupy 12% of the aPAD for children 1-2 years old, the population group receiving the greatest exposure.

    2. Chronic risk. Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that chronic exposure to fluxapyroxad from food and water will utilize 66% of the cPAD for infants (< 1 year old). Based on the explanation in Unit III.C.3., regarding residential use patterns, chronic residential exposure to residues of fluxapyroxad is not expected.

    3. Short-term risk. Short-term aggregate exposure takes into account short-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level).

    Fluxapyroxad is currently registered for uses that could result in short-term residential exposure, and the Agency has determined that it is appropriate to aggregate chronic exposure through food and water with short-term residential exposures to fluxapyroxad. Using the exposure assumptions described in this unit for short-term exposures, EPA has concluded the combined short-term food, water, and residential exposures result in aggregate MOEs of 1139 for adults and 431 for children. Because EPA's level of concern for fluxapyroxad is a MOE of 100 or below, these MOEs are not of concern.

    4. Intermediate-term risk. Intermediate-term aggregate exposure takes into account intermediate-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level). An intermediate-term adverse effect was identified; however, fluxapyroxad is not registered for any use patterns that would result in intermediate-term residential exposure. Intermediate-term risk is assessed based on intermediate-term residential exposure plus chronic dietary exposure. Because there is no intermediate-term residential exposure and chronic dietary exposure has already been assessed under the appropriately protective cPAD (which is at least as protective as the POD used to assess intermediate-term risk), no further assessment of intermediate-term risk is necessary, and EPA relies on the chronic dietary risk assessment for evaluating intermediate-term risk for fluxapyroxad.

    5. Aggregate cancer risk for U.S. population. As discussed in Unit III.A., EPA has classified fluxapyroxad as “Not likely to be Carcinogenic to Humans” based on convincing evidence that carcinogenic effects are not likely below a defined dose range. The Agency has determined that the quantification of risk using the cPAD for fluxapyroxad will adequately account for all chronic toxicity, including carcinogenicity that could result from exposure to fluxapyroxad. Because the Agency has determined fluxapyroxad will not cause a chronic risk, the Agency concludes that fluxapyroxad will not pose a cancer risk for the U.S. population.

    6. Determination of safety. Based on these risk assessments, EPA concludes that there is a reasonable certainty that no harm will result to the general population, or to infants and children from aggregate exposure to fluxapyroxad residues.

    IV. Other Considerations A. Analytical Enforcement Methodology

    There are suitable residue analytical methods available for enforcement of fluxapyroxad tolerances (BASF Methods L0137/01 for plants and L0140/02 for animal matrices) which have been radio-validated and have underwent successful validation by an independent laboratory. These are liquid chromatography with tandem mass spectrometry (LC/MS/MS) methods and monitor two ion transitions. The Limit of Quantitation (LOQ) for BASF method L0137/01 is 0.01 ppm for various matrices. The LOQ for BASF method L0140/02 is 0.01 ppm for liver and muscle, and 0.001 ppm for milk and eggs.

    The method may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755-5350; telephone number: (410) 305-2905; email address: [email protected]

    B. International Residue Limits

    In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint United Nations Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level.

    There are no Codex MRLs for citrus or grass and non-grass animal feed at present. US and Codex use different dietary burden evaluations and calculations which result in US tolerances for residues in ruminant meat byproduct, milk, and milk fat generally much lower than corresponding Codex MRLs.

    C. Revisions to Petitioned-for Tolerances

    EPA is establishing tolerances for milk fat and poultry meat, and meat byproduct that the applicant did not request. There have been no established tolerances for poultry tissues because residues were not expected to be found in those tissues due to the low dietary burden; i.e., category 3 of 40 CFR 180.6(a) applied for those poultry matrices previously. However, because of expectation of higher residues on the feed items associated with the proposed uses (mainly grass and non-grass), the livestock dietary burdens have increased, and residues are now expected to be transferred to poultry tissues. Consequently, the Agency is establishing poultry tolerances. Similarly, due to the higher livestock dietary burdens, EPA is establishing a new tolerance for residues in milk fat, and increasing current tolerances on milk, ruminant fat and meat byproduct (to include fat and meat byproduct of cattle, goat, horse and sheep). EPA is also establishing higher tolerances than what the applicant proposed for grass (group 17), citrus oil, dried pulp, and poultry fat. The difference in the group 17 grass tolerance is due to the fact that EPA is using residues from 0-day postharvest interval (PHI) from grass samples (instead of 14-day PHI used by the applicant). With regard to citrus oil, the difference between the petitioned-for and established tolerance is due to the use of the highest average field trial (HAFT) data by EPA (instead of median used by the applicant), times processing factor. Dried pulp tolerance difference is due to EPA rounding of the calculated tolerance. Lastly, the difference in the tolerance in poultry fat is due to recalculating dietary burden for livestock, taking into account residues on feed commodities from (0-day PHI) grass, alfalfa and clover which resulted in higher than previously calculated dietary burdens and therefore higher tolerances.

    V. Conclusion

    Therefore, tolerances are established for residues of fluxapyroxad, in or on cattle, fat at 0.06 ppm; cattle, meat byproduct at 0.04 ppm; citrus, dried pulp at 3.0 ppm; citrus, oil at 40 ppm; fruit, citrus, group 10-10 at 1.0 ppm; goat, fat at 0.06 ppm; goat, meat byproduct at 0.04 ppm; grass, forage, fodder, and hay, group 17 at 40 ppm; horse, fat at 0.06 ppm; horse, meat byproduct at 0.04 ppm; milk at 0.01 ppm; milk, fat at 0.15 ppm; non-grass animal feeds, group 18 at 30 ppm; poultry, fat, poultry, meat and meat byproduct, each at 0.01 ppm; sheep, fat at 0.06 ppm; and sheep, meat byproduct at 0.04 ppm. Finally, the Agency is removing the tolerance for inadvertent residues of fluxapyroxad on non-grass animal feeds, group 18 contained in paragraph (d) of section 180.666, as it is subsumed by the tolerance for non-grass animal feeds, group 18 being established in paragraph (a) of the same section.

    VI. Statutory and Executive Order Reviews

    This action establishes tolerances under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this action has been exempted from review under Executive Order 12866, this action is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997). This action does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501 et seq.), nor does it require any special considerations under Executive Order 12898, entitled “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations” (59 FR 7629, February 16, 1994).

    Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.), do not apply.

    This action directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000) do not apply to this action. In addition, this action does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1501 et seq.).

    This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note).

    VII. Congressional Review Act

    Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.), EPA will submit a report containing this rule 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. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

    List of Subjects in 40 CFR Part 180

    Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.

    Dated: April 26, 2016. Susan Lewis, Director, Registration Division, Office of Pesticide Programs.

    Therefore, 40 CFR chapter I is amended as follows:

    PART 180—[AMENDED] 1. The authority citation for part 180 continues to read as follows: Authority:

    21 U.S.C. 321(q), 346a and 371.

    2. In § 180.666, amend the table in paragraph (a) as follows: i. Add alphabetically the entries “Citrus, dried pulp”, “Citrus, oil”, “Fruit, citrus, group 10-10”, “Grass forage, fodder and hay, group 17”, “Milk, fat”, “Non-grass animal feed, group 18”, “Poultry, fat”, “Poultry, meat” and “Poultry, meat byproduct”. ii. Revise the following entries “Cattle, fat”, “Cattle, meat byproduct”, “Egg”, “Goat, fat”, “Goat, meat byproduct”, “Horse, fat”, “Horse, meat byproduct”, “Milk”, “Sheep, fat,” and “Sheep, meat byproduct”. iii. Remove from the table in paragraph (d) the entry “non-grass animal feeds, group 18”.

    The amendments read as follows:

    § 180.666 Fluxapyroxad; tolerances for residues.

    (a) * * *

    Commodity Parts per
  • million
  • *    *    *    *    * Cattle, fat 0.06 *    *    *    *    * Cattle, meat byproduct 0.04 Citrus, dried pulp 3.0 Citrus, oil 40 *    *    *    *    * Egg 0.01 Fruit, citrus, group 10-10 1.0 *    *    *    *    * Grass, forage, fodder and hay, group 17 40 Goat, fat 0.06 *    *    *    *    * Goat, meat byproduct 0.04 *    *    *    *    * Horse, fat 0.06 *    *    *    *    * Horse, meat byproduct 0.04 Milk 0.01 Milk, fat 0.15 Non-grass animal feed, group 18 30 *    *    *    *    * Poultry, fat 0.01 Poultry, meat 0.01 Poultry, meat byproduct 0.01 *    *    *    *    * Sheep, fat 0.06 *    *    *    *    * Sheep, meat byproduct 0.04 *    *    *    *    *
    [FR Doc. 2016-10581 Filed 5-4-16; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 180 [EPA-HQ-OPP-2015-0213; FRL-9945-58] Butanedioic Acid, 2-sulfo-, C-C9-11-isoalkyl esters, C10-rich, Disodium Salts; Exemption From the Requirement of a Tolerance AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    This regulation establishes an exemption from the requirement of a tolerance for residues of butanedioic acid, 2-sulfo-, C-C9-11-isoalkyl esters, C10-rich, disodium salts (CAS Reg. No. 815583-91-6) when used as an inert ingredient (surfactant) in pesticides applied to growing crops and raw agricultural commodities after harvest under 40 CFR 180.910 limited to maximum concentration of 10% by weight in pesticide formulations. Keller and Heckman LLP on behalf of Cytec Industries, Inc. submitted a petition to EPA under the Federal Food, Drug, and Cosmetic Act (FFDCA), requesting establishment of an exemption from the requirement of a tolerance. This regulation eliminates the need to establish a maximum permissible level for residues of butanedioic acid,2-sulfo-, C-C9-11-isoalkyl esters, C10-rich, disodium salts.

    DATES:

    This regulation is effective May 5, 2016. Objections and requests for hearings must be received on or before July 5, 2016, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the SUPPLEMENTARY INFORMATION).

    ADDRESSES:

    The docket for this action, identified by docket identification (ID) number EPA-HQ-OPP-2015-0213, is available at http://www.regulations.gov or at the Office of Pesticide Programs Regulatory Public Docket (OPP Docket) in the Environmental Protection Agency Docket Center (EPA/DC), West William Jefferson Clinton Bldg., Rm. 3334, 1301 Constitution Ave. NW., Washington, DC 20460-0001. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the OPP Docket is (703) 305-5805. Please review the visitor instructions and additional information about the docket available at http://www.epa.gov/dockets.

    FOR FURTHER INFORMATION CONTACT:

    Susan Lewis, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001; main telephone number: (703) 305-7090; email address: [email protected]

    SUPPLEMENTARY INFORMATION: I. General Information A. Does this action apply to me?

    You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:

    • Crop production (NAICS code 111).

    • Animal production (NAICS code 112).

    • Food manufacturing (NAICS code 311).

    • Pesticide manufacturing (NAICS code 32532).

    B. How can I get electronic access to other related information?

    You may access a frequently updated electronic version of 40 CFR part 180 through the Government Printing Office's e-CFR site at http://www.ecfr.gov/cgi-bin/text-idx?&c=ecfr&tpl=/ecfrbrowse/Title40/40tab_02.tpl.

    C. How can I file an objection or hearing request?

    Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2015-0213 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before July 5, 2016. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

    In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2015-0213, by one of the following methods:

    Federal eRulemaking Portal: http://www.regulations.gov. Follow the online instructions for submitting comments. Do not submit electronically any information you consider to be CBI or other information whose disclosure is restricted by statute.

    Mail: OPP Docket, Environmental Protection Agency Docket Center (EPA/DC), (28221T), 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001.

    Hand Delivery: To make special arrangements for hand delivery or delivery of boxed information, please follow the instructions at http://www.epa.gov/dockets/contacts.html.

    Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at http://www.epa.gov/dockets. II. Petition for Exemption

    In the Federal Register of May 20, 2015 (80 FR 28925) (FRL-9927-39), EPA issued a document pursuant to FFDCA section 408, 21 U.S.C. 346a, announcing the filing of a pesticide petition (PP IN-10760) by Keller and Heckman LLP, (1001 G Street NW., Suite 500, Washington, DC 20001) on behalf of Cytec Industries, Inc. (5 Garret Mountain Plaza, Woodland Park, NJ 07424). The petition requested that 40 CFR 180.910 be amended by establishing an exemption from the requirement of a tolerance for residues of butanedioic acid, 2-sulfo-, C-C9-11-isoalkyl esters, C10-rich, disodium salts (CAS Reg. No. 815583-91-6) when used as an inert ingredient (surfactant) in pesticide formulations applied to growing crops and raw agricultural commodities after harvest. That document referenced a summary of the petition prepared by Keller and Heckman LLP, on behalf of Cytec Industries, Inc., the petitioner, which is available in the docket, http://www.regulations.gov. There were no comments received in response to the notice of filing.

    Based upon review of the data supporting the petition, EPA has limited the maximum concentration of butanedioic acid, 2-sulfo-, C-C9-11-isoalkyl esters, C10-rich, disodium salts to 10% by weight in pesticide formulations. This limitation is based on the Agency's risk assessment which can be found at http://www.regulations.gov in document “Butanedioic acid, 2-sulfo-, C-C9-11-isoalkyl esters, C10-rich, disodium salts (CAS Reg No. 815583-91-6); Human Health Risk Assessment and Ecological Effects Assessment to Support Proposed Exemption from the Requirement of a Tolerance When Used as an Inert Ingredient in Pesticide Formulations” in docket ID number EPA-HQ-OPP-2015-0213.

    III. Inert Ingredient Definition

    Inert ingredients are all ingredients that are not active ingredients as defined in 40 CFR 153.125 and include, but are not limited to, the following types of ingredients (except when they have a pesticidal efficacy of their own): Solvents such as alcohols and hydrocarbons; surfactants such as polyoxyethylene polymers and fatty acids; carriers such as clay and diatomaceous earth; thickeners such as carrageenan and modified cellulose; wetting, spreading, and dispersing agents; propellants in aerosol dispensers; microencapsulating agents; and emulsifiers. The term “inert” is not intended to imply nontoxicity; the ingredient may or may not be chemically active. Generally, EPA has exempted inert ingredients from the requirement of a tolerance based on the low toxicity of the individual inert ingredients.

    IV. Aggregate Risk Assessment and Determination of Safety

    Section 408(c)(2)(A)(i) of FFDCA allows EPA to establish an exemption from the requirement for a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the exemption is “safe.” Section 408(c)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance or exemption and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. . . .”

    EPA establishes exemptions from the requirement of a tolerance only in those cases where it can be clearly demonstrated that the risks from aggregate exposure to pesticide chemical residues under reasonably foreseeable circumstances will pose no appreciable risks to human health. In order to determine the risks from aggregate exposure to pesticide inert ingredients, the Agency considers the toxicity of the inert ingredient in conjunction with possible exposure to residues of the inert ingredient through food, drinking water, and through other exposures that occur as a result of pesticide use in residential settings. If EPA is able to determine that a finite tolerance is not necessary to ensure that there is a reasonable certainty that no harm will result from aggregate exposure to the inert ingredient, an exemption from the requirement of a tolerance may be established.

    Consistent with FFDCA section 408(c)(2)(A), and the factors specified in FFDCA section 408(c)(2)(B), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for butanedioic acid, 2-sulfo-, C-C9-11-isoalkyl esters, C10-rich, disodium salts including exposure resulting from the exemption established by this action. EPA's assessment of exposures and risks associated with butanedioic acid, 2-sulfo-, C-C9-11-isoalkyl esters, C10-rich, disodium salts follows.

    A. Toxicological Profile

    EPA has evaluated the available toxicity data and considered their validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. Specific information on the studies received and the nature of the adverse effects caused by butanedioic acid, 2-sulfo-, C-C9-11-isoalkyl esters, C10-rich, disodium salts as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies are discussed in this unit.

    Butanedioic acid, 2-sulfo-, C-C9-11-isoalkyl esters, C10-rich, disodium salts is of low acute oral and dermal toxicity in rats. The acute oral and dermal LD50s are >1,600 milligram/kilogram (mg/kg). It is irritating to the eyes but not the skin of rabbits. Neither inhalation nor sensitization studies are available.

    90-day oral toxicity studies are available in rats and dogs. In the rat, toxicity is manifested as decreased body weight and food efficiency at 4% (equivalent to 3,080 milligram/kilogram/day (mg/kg/day)) of butanedioic acid, 2-sulfo-, C-C9-11-isoalkyl esters, C10-rich, disodium salts. In dogs, toxicity is manifested as testicular atrophy at 0.5% (equivalent to 125 mg/kg/day). The NOAEL in this study is 0.12% (equivalent to 30 mg/kg/day). The chronic reference dose (cRfD) is based on this study.

    A combined reproductive and developmental study on rats is available with butanedioic acid, 2-sulfo-, C-C9-11-isoalkyl esters, C10-rich, disodium salts. Quantitative fetal susceptibility is observed as reduced pup weight at 1% (equivalent to 750 mg/kg/day). Maternal toxicity is reported only with regard to reproduction toxicity and included a reduced number of viable embryos and live-born per litter, and reduced fertility, viability and lactation indices at 4% (equivalent to 3,000 mg/kg/day).

    Butanedioic acid, 2-sulfo-, C-C9-11-isoalkyl esters, C10-rich, disodium salts is not expected to be carcinogenic based on the absence of structural alerts using the Derek Nexus program and the lack of mutagenicity in two Ames tests.

    Neurotoxicity and immunotoxicity studies with butanedioic acid, 2-sulfo-, C-C9-11-isoalkyl esters, C10-rich, disodium salts are not available for review. However, no evidence of potential neurotoxicity or immunotoxicity is observed in the submitted studies.

    Metabolism studies with butanedioic acid, 2-sulfo-, C-C9-11-isoalkyl esters, C10-rich, disodium salts are not available for review. However, it is expected that these salts will readily hydrolyze (primarily in the intestine, blood and liver) by carboxylesterases resulting in the corresponding alcohol (C9-C l1 isoalkyl, Cl0 rich). The fatty alcohol is expected to be metabolized via normal metabolic pathways (oxidation, followed by normal fatty acid metabolism).

    B. Toxicological Points of Departure/Levels of Concern

    Once a pesticide's toxicological profile is determined, EPA identifies toxicological points of departure (POD) and levels of concern to use in evaluating the risk posed by human exposure to the pesticide. For hazards that have a threshold below which there is no appreciable risk, the toxicological POD is used as the basis for derivation of reference values for risk assessment. PODs are developed based on a careful analysis of the doses in each toxicological study to determine the dose at which the NOAEL and the LOAEL are identified. Uncertainty/safety factors are used in conjunction with the POD to calculate a safe exposure level—generally referred to as a population-adjusted dose (PAD) or a reference dose (RfD)—and a safe margin of exposure (MOE). For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk. Thus, the Agency estimates risk in terms of the probability of an occurrence of the adverse effect expected in a lifetime. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, see http://www.epa.gov/pesticides/factsheets/riskassess.htm.

    An acute effect was not found in the database therefore an acute dietary assessment was not conducted. The cRfD as well as all exposure scenarios was based on the 90-day oral toxicity study in the dog. In this study, the LOAEL was 0.5% (equivalent to 125 mg/kg/day) based on testicular atrophy in males. The NOAEL was 0.12% (equivalent to 30 mg/kg/day). This represents the lowest NOAEL in the most sensitive species in the toxicity database. The standard uncertainty factors were applied to account for interspecies (10x) and intraspecies (10x) variations. Default values of 100% absorption were used for the dermal and inhalation factors.

    C. Exposure Assessment

    1. Dietary exposure from food and feed uses. In evaluating dietary exposure to butanedioic acid, 2-sulfo-, C-C9-11-isoalkyl esters, C10-rich, disodium salts, EPA considered exposure under the proposed exemption from the requirement of a tolerance. EPA assessed dietary exposures from butanedioic acid, 2-sulfo-, C-C9-11-isoalkyl esters, C10-rich, disodium salts in food as follows:

    Dietary exposure (food and drinking water) to butanedioic acid, 2-sulfo-,C-C9-11-isoalkyl esters, C10-rich, disodium salts can occur following ingestion of foods with residues from treated crops. Because no adverse effects attributable to a single exposure of butanedioic acid, 2-sulfo-, C-C9-11-isoalkyl esters, C10-rich, disodium salts are seen in the toxicity databases, an acute dietary risk assessment was not conducted. For the chronic dietary risk assessment, EPA used the Dietary Exposure Evaluation Model software with the Food Commodity Intake Database (DEEM-FCIDTM, Version 3.16, and food consumption information from the U.S. Department of Agriculture's (USDA's) 2003-2008 National Health and Nutrition Examination Survey, What We Eat in America (NHANES/WWEIA). As to residue levels in food, no residue data were submitted for butanedioic acid, 2-sulfo-, C-C9-11-isoalkyl esters, C10-rich, disodium salts. In the absence of specific residue data, EPA has developed an approach which uses surrogate information to derive upper bound exposure estimates for the subject inert ingredient. Upper bound exposure estimates are based on the highest tolerance for a given commodity from a list of high use insecticides, herbicides, and fungicides. 100 percent crop treated (PCT), default processing factors, and tolerance-level residues were assumed for all foods, and the assessment incorporated the use limitation that the ingredient will be present in pesticide formulations at a concentration of not more than 10% by weight. A complete description of the general approach taken to assess inert ingredient risks in the absence of residue data is contained in the memorandum entitled “Alkyl Amines Polyalkoxylates (Cluster 4): Acute and Chronic Aggregate (Food and Drinking Water) Dietary Exposure and Risk Assessments for the Inerts,” (D361707, S. Piper, 2/25/09) and can be found at http://www.regulations.gov in docket ID number EPA-HQ-OPP-2008-0738.

    2. Dietary exposure from drinking water. For the purpose of the screening level dietary risk assessment to support this request for an exemption from the requirement of a tolerance for butanedioic acid, 2-sulfo-, C-C9-11-isoalkyl esters, C10-rich, disodium salts, a conservative drinking water concentration value of 100 parts per billion (ppb) based on screening level modeling was used to assess the contribution to drinking water for the chronic dietary risk assessments for parent compound. These values were directly entered into the dietary exposure model.

    3. From non-dietary exposure. The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure (e.g., textiles (clothing and diapers), carpets, swimming pools, and hard surface disinfection on walls, floors, tables).

    Butanedioic acid, 2-sulfo-, C-C9-11-isoalkyl esters, C10-rich, disodium salts may be used in inert ingredients in products that are registered for specific uses that may result in residential exposure, such as pesticides used in and around the home. Based on the available data for products registered for residential use, the Agency concluded that products containing inert chemicals similar to butanedioic acid, 2-sulfo-, C-C9-11-isoalkyl esters, C10-rich, disodium salts (ie surfactant) usually comprise no more than 2-5% of the inert ingredient in the final product. Therefore, the Agency conducted an assessment to represent conservative residential exposure by assessing butanedioic acid, 2-sulfo-, C-C9-11-isoalkyl esters, C10-rich, disodium salts in pesticide formulations (outdoor scenarios) and in disinfectant-type uses (indoor scenarios) at no more than 5% in the final formulation.

    4. Cumulative effects from substances with a common mechanism of toxicity. Section 408(b)(2)(D)(v) of FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.”

    EPA has not found butanedioic acid, 2-sulfo-, C-C9-11-isoalkyl esters, C10-rich, disodium salts to share a common mechanism of toxicity with any other substances, and butanedioic acid, 2-sulfo-, C-C9-11-isoalkyl esters, C10-rich, disodium salts does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has assumed that butanedioic acid,2-sulfo-, C-C9-11-isoalkyl esters, C10-rich, disodium salts does not have a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's Web site at http://www.epa.gov/pesticides/cumulative.

    D. Safety Factor for Infants and Children

    1. In general. Section 408(b)(2)(C) of FFDCA provides that EPA shall apply an additional tenfold (10X) margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the database on toxicity and exposure unless EPA determines based on reliable data that a different margin of safety will be safe for infants and children. This additional margin of safety is commonly referred to as the Food Quality Protection Act Safety Factor (FQPA SF). In applying this provision, EPA either retains the default value of 10X, or uses a different additional safety factor when reliable data available to EPA support the choice of a different factor.

    2. Prenatal and postnatal sensitivity. The toxicity database for butanedioic acid, 2-sulfo-, C-C9-11-isoalkyl esters, C10-rich, disodium salts contains subchronic, combined reproduction/teratology and mutagenicity studies. There is no indication of potential neurotoxicity or immunotoxicity in the available studies. Quantitative increased fetal susceptibility was observed in the combined reproduction/teratology study in rats. Fetal toxicity (reduced pup weight) was observed at the lowest dose tested, 750 mg/kg/day. Maternal/reproduction toxicity was observed at 3,000 mg/kg/day and manifested as a reduction in the number of viable embryos, live-born per litter, fertility, viability, and lactation indices. The addition of a 10x FQPA safety factor to account for quantitative susceptibility and LOAEL to NOAEL extrapolation is not necessary because it would result in a cRfD of 0.75 mg/kg/day and the established cRfD is 0.30 mg/kg/day. The cRfD is considerably lower and will be protective of fetal susceptibility and effects observed at 750 mg/kg/day. Therefore, retention of the FQPA safety factor is unnecessary. There is low concern for reproduction toxicity since the aforementioned effects occurred above the limit dose of 1,000 mg/kg/day and a clear NOAEL of 750 mg/kg/day was established. Therefore, the established cRfD will be protective of these effects. In addition, the Agency used the most conservative (highest) exposure estimates and assumptions, including 100 PCT and tolerance-level residues for all foods, conservative estimates of drinking water exposure, and a conservative assessment of potential residential exposure for infants and children. Therefore, the FQPA SF of 10x is reduced to 1x.

    E. Aggregate Risks and Determination of Safety

    EPA determines whether acute and chronic dietary pesticide exposures are safe by comparing aggregate exposure estimates to the acute PAD (aPAD) and chronic PAD (cPAD). For linear cancer risks, EPA calculates the lifetime probability of acquiring cancer given the estimated aggregate exposure. Short-, intermediate-, and chronic-term risks are evaluated by comparing the estimated aggregate food, water, and residential exposure to the appropriate PODs to ensure that an adequate MOE exists.

    1. Acute risk. An acute aggregate risk assessment takes into account acute exposure estimates from dietary consumption of food and drinking water. No adverse effect resulting from a single oral exposure was identified and no acute dietary endpoint was selected. Therefore, butanedioic acid, 2-sulfo-, C-C9-11-isoalkyl esters, C10-rich, disodium salts is not expected to pose an acute risk.

    2. Chronic risk. Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that chronic exposure to butanedioic acid, 2-sulfo-, C-C9-11-isoalkyl esters, C10-rich, disodium salts from food and water will utilize 47.9% of the cPAD for children 1-2 years old, the population group receiving the greatest exposure.

    3. Short-term risk. Short-term aggregate exposure takes into account short-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level).

    Butanedioic acid, 2-sulfo-, C-C9-11-isoalkyl esters, C10-rich, disodium salts may be used as inert ingredients in pesticide products that could result in short-term residential exposure, and the Agency has determined that it is appropriate to aggregate chronic exposure through food and water with short-term residential exposures to butanedioic acid, 2-sulfo-, C-C9-11-isoalkyl esters, C10-rich, disodium salts. Using the exposure assumptions described above, EPA has concluded that the combined short-term aggregated food, water, and residential exposures result in MOEs of 126 for both adult males and females. Adult residential exposure combines high end dermal and inhalation handler exposure from liquids/trigger sprayer/home garden use with a high end post application dermal exposure from contact with treated lawns. Also, EPA has concluded the combined short-term aggregated food, water, and residential exposures result in an aggregate MOE of 135 for children. Children's residential exposure includes total exposures associated with contact with treated lawns (dermal and hand-to-mouth exposures). As the level of concern is for MOEs that are lower than 100, these MOEs are not of concern.

    4. Intermediate-term risk. Intermediate-term aggregate exposure takes into account intermediate-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level).

    Butanedioic acid, 2-sulfo-, C-C9-11-isoalkyl esters, C10-rich, disodium salts may be used as inert ingredients in pesticide products that could result in intermediate-term residential exposure and the Agency has determined that it is appropriate to aggregate chronic exposure through food and water with intermediate-term residential exposures to butanedioic acid, 2-sulfo-, C-C9-11-isoalkyl esters, C10-rich, disodium salts. Using the exposure assumptions described above, EPA has concluded that the combined intermediate-term food, water, and residential exposures result in aggregate MOEs of 480 for adult males and females. Adult residential exposure combines liquids/trigger sprayer/home garden use with a high end post application dermal exposure from contact with treated lawns. As the level of concern is for MOEs that are lower than 100, this MOE is not of concern. EPA has concluded the combined intermediate-term aggregated food, water, and residential exposures result in an aggregate MOE of 158 for children. Children's residential exposure includes total exposures associated with contact with treated surfaces (dermal and hand-to-mouth exposures). As the level of concern is for MOEs that are lower than 100, this MOE is not of concern.

    5. Aggregate cancer risk for U.S. population. Based on a DEREK structural alert analysis and the lack of mutagenicity, butanedioic acid,2-sulfo-, C-C9-11-isoalkyl esters, C10-rich, disodium salts is not expected to pose a cancer risk to humans.

    6. Determination of safety. Based on these risk assessments, EPA concludes that there is a reasonable certainty that no harm will result to the general population, or to infants and children from aggregate exposure to butanedioic acid, 2-sulfo-, C-C9-11-isoalkyl esters, C10-rich, disodium salts residues.

    V. Other Considerations

    An analytical method is not required for enforcement purposes since the Agency is not establishing a numerical tolerance for residues of butanedioic acid, 2-sulfo-, C-C9-11-isoalkyl esters, C10-rich, disodium salts in or on any food commodities. EPA is establishing limitations on the amount of butanedioic acid, 2-sulfo-, C-C9-11-isoalkyl esters, C10-rich, disodium salts that may be used in pesticide formulations applied to growing crops. These limitations will be enforced through the pesticide registration process under the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”), 7 U.S.C. 136 et seq. EPA will not register any pesticide formulation for use on growing crops or raw agricultural commodities after harvest for sale or distribution that exceeds 10% by weight of butanedioic acid, 2-sulfo-, C-C9-11-isoalkyl esters, C10-rich, disodium salts unless additional data are submitted.

    VI. Conclusions

    Therefore, an exemption from the requirement of a tolerance is established under 40 CFR 180. 910 for of butanedioic acid, 2-sulfo-, C-C9-11-isoalkyl esters, C10-rich, disodium salts (CAS Reg. No. 815583-91-6) when used as inert ingredients (surfactant) at a maximum concentration of 10% by weight in pesticide formulations applied to growing crops or to raw agricultural commodities after harvest.

    VII. Statutory and Executive Order Reviews

    This action establishes a tolerance under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this action has been exempted from review under Executive Order 12866, this action is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997). This action does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501 et seq.), nor does it require any special considerations under Executive Order 12898, entitled “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations” (59 FR 7629, February 16, 1994).

    Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.), do not apply.

    This action directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000) do not apply to this action. In addition, this action does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1501 et seq.).

    This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note).

    VIII. Congressional Review Act

    Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.), EPA will submit a report containing this rule 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. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

    List of Subjects in 40 CFR Part 180

    Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.

    Dated: April 26, 2016. Susan Lewis, Director, Registration Division, Office of Pesticide Programs.

    Therefore, 40 CFR chapter I is amended as follows:

    PART 180—[AMENDED] 1. The authority citation for part 180 continues to read as follows: Authority:

    21 U.S.C. 321(q), 346a and 371.

    2. In § 180.910, add alphabetically the inert ingredient “Butanedioic acid, 2-sulfo-, C-C9-11-isoalkyl esters, C10-rich, disodium salts (CAS Reg. No. 815583-91-6)” to the table to read as follows:
    § 180.910 Inert ingredients used pre- and post-harvest; exemptions from the requirement of a tolerance. Inert ingredients Limits Uses *         *         *         *         *         *         * Butanedioic acid, 2-sulfo-, C-C9-11-isoalkyl esters, C10-rich, disodium salts (CAS Reg. No. 815583-91-6) Not to exceed 10% by weight in pesticide formulation for agricultural use Surfactant. *         *         *         *         *         *         *
    [FR Doc. 2016-10582 Filed 5-4-16; 8:45 am] BILLING CODE 6560-50-P
    DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 36 [Docket No. FWS-R7-NWRS-2014-0003; FF07RKNA00 FXRS12610700000 167] RIN 1018-AX56 Refuge-Specific Regulations; Public Use; Kenai National Wildlife Refuge AGENCY:

    Fish and Wildlife Service, Interior.

    ACTION:

    Final rule.

    SUMMARY:

    We, the U.S. Fish and Wildlife Service (Service), are amending the regulations for Kenai National Wildlife Refuge (Kenai NWR or Refuge) that govern existing general public use and recreation. These changes will implement management direction and decisions from our June 2010 Kenai NWR revised comprehensive conservation plan and June 2007 Skilak Wildlife Recreation Area final revised management plan. The amendments to the regulations are designed to enhance natural resource protection, public use activities, and public safety on the Refuge; are necessary to ensure the compatibility of public use activities with the Refuge's purposes and the Refuge System's purposes; and ensure consistency with management policies and approved Refuge management plans.

    DATES:

    This rule is effective June 6, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Andy Loranger, Refuge Manager, Kenai NWR, P.O. Box 2139, Ski Hill Rd., Soldotna, AK 99669; telephone: 907-262-7021; facsimile 907-262-3599. If you use a telecommunications device for the deaf (TDD), call the Federal Information Relay Service (FIRS) at 800-877-8339.

    SUPPLEMENTARY INFORMATION:

    Background

    President Franklin D. Roosevelt established the Kenai National Moose Range (Moose Range) on December 16, 1941, for the purpose of “protecting the natural breeding and feeding range of the giant Kenai moose on the Kenai Peninsula, Alaska, which in this area presents a unique wildlife feature and an unusual opportunity for the study in its natural environment of the practical management of a big game species that has considerable local economic value” (Executive Order 8979; see 6 FR 6471, December 18, 1941).

    Section 303(4) of the Alaska National Interest Lands Conservation Act of 1980 (ANILCA) (16 U.S.C. 3101 et seq.) substantially affected the Moose Range by modifying its boundaries and broadening its purposes from moose conservation to protection and conservation of a broad array of fish, wildlife, habitats, and other resources, and to providing educational and recreational opportunities. ANILCA also redesignated the Moose Range as the Kenai National Wildlife Refuge (NWR or Refuge) and increased the size of the Refuge to 1.92 million acres, of which approximately two-thirds were designated as Wilderness and made part of the National Wilderness Preservation System.

    ANILCA sets out additional purposes for each refuge in Alaska; the purposes of Kenai NWR are set forth in section 303(4)(B) of ANILCA. The purposes identify some of the reasons why Congress established the Refuge and set the management priorities for the Refuge. The purposes are as follows:

    (1) To conserve fish and wildlife populations and habitats in their natural diversity including, but not limited to, moose, bears, mountain goats, Dall sheep, wolves and other furbearers, salmonoids and other fish, waterfowl and other migratory and nonmigratory birds;

    (2) To fulfill the international treaty obligations of the United States with respect to fish and wildlife and their habitats;

    (3) To ensure, to the maximum extent practicable and in a manner consistent with the purposes set forth in (1), above, water quality and necessary water quantity within the Refuge;

    (4) To provide, in a manner consistent with (1) and (2), above, opportunities for scientific research, interpretation, environmental education, and land management training; and

    (5) To provide, in a manner compatible with these purposes, opportunities for fish and wildlife-oriented recreation.

    The Wilderness Act of 1964 (16 U.S.C. 1131-1136) provides the following purposes for wilderness areas, including the Kenai wilderness area:

    (1) To secure an enduring resource of wilderness;

    (2) To protect and preserve the wilderness character of areas within the National Wilderness Preservation System; and

    (3) To administer the areas for the use and enjoyment of the American people in a way that will leave the areas unimpaired for future use and enjoyment as wilderness.

    Under our regulations implementing ANILCA in title 50 of the Code of Federal Regulations at part 36 (50 CFR part 36), all refuge lands in Alaska are open to public recreational activities as long as such activities are conducted in a manner compatible with the purposes for which the refuge was established (50 CFR 36.31). Such recreational activities include, but are not limited to, sightseeing, nature observation and photography, hunting, fishing, boating, camping, hiking, picnicking, and other related activities (50 CFR 36.31(a)).

    The National Wildlife Refuge Administration Act of 1966 (16 U.S.C. 668dd-668ee), as amended by the National Wildlife Refuge System Improvement Act of 1997, defines “wildlife-dependent recreation” and “wildlife-dependent recreational use” as “hunting, fishing, wildlife observation and photography, or environmental education and interpretation” (16 U.S.C. 668ee(2)). We encourage these uses, and they receive emphasis in management of the public use on national wildlife refuges. All six of these priority uses have been determined to be compatible on the Refuge, subject to adherence to applicable State and Federal regulations.

    Section 304(g) of ANILCA requires the Service to prepare refuge comprehensive conservation plans (CCPs) for all refuges in Alaska. The Service completed its first comprehensive management plan for the Kenai NWR in 1985, and a revised CCP was finalized and approved in 2010. These plans include management direction and specific actions related to administration of public uses on the Refuge. The refuge-specific public use regulations for Kenai NWR are set forth at 50 CFR 36.39(i). These regulations include provisions concerning the operation of aircraft, motorboats, off-road vehicles, and snowmobiles; hunting and trapping; camping; timber removal; personal property; use of non-motorized wheeled vehicles; canoeing; and area closures on the Refuge.

    Proposed Rule

    On May 21, 2015, we published a proposed rule (80 FR 29277) to amend the Refuge's public use regulations. We accepted public comments on the proposed rule for 60 days, ending July 20, 2015. We also held two public hearings on the proposed rule, one on June 17, 2015, in Soldotna, Alaska, and one on June 18, 2015, in Anchorage, Alaska.

    We developed the changes to existing Refuge public use regulations included in our May 21, 2015, proposed rule to meet our legal mandates; to ensure consistency with policy, directives, and approved management plans, including implementing management direction and/or specific actions in our 2010 revised Kenai NWR CCP and 2007 Skilak Wildlife Recreation Area (WRA) final revised management plan; and to ensure public safety. The proposed changes included: (1) Amending regulations affecting use of aircraft, motorboats, motorized vehicles, and snowmobiles in order to enhance resource protection and public use opportunities; (2) codifying restrictions on hunting and trapping within the Skilak WRA recently established (in 2013) in accordance with procedures set forth at 50 CFR 36.42 (public participation and closure procedures) and implementing our 2007 Skilak WRA final revised management plan; (3) expanding a prohibition on the discharge of firearms to include areas of intensive public use along the Russian and Kenai rivers in order to enhance public safety; (4) clarifying the intent of existing regulations that require a special use permit for hunting black bears over bait by specifying that only the take of black bears is authorized under this requirement; (5) amending regulations associated with camping, use of public use cabins and public use facilities, unattended equipment, livestock (including pack animals), and public gatherings to enhance resource protection and public use opportunities; (6) establishing permanent regulations for managing wildlife attractants in the Russian River Special Management Area to reduce potential for negative human-bear interactions, thereby enhancing public safety and resource protection; (7) establishing regulations allowing for noncommercial gathering of natural resources, including collection of edible wild foods and shed antlers; and (8) codifying existing restrictions on certain uses within areas of the Refuge under conservation easements and easements made under section 17(b) of the Alaska Native Claims Settlement Act (ANCSA) (43 U.S.C. 1601 et seq.; see 43 U.S.C. 1616(b)).

    Response to Public Comments

    We received 28 written comments on the May 21, 2015, proposed rule during the comment period, and four individuals and representatives of two organizations provided oral testimony at the public hearings. We reviewed and considered all substantive information we received during the comment period. In this final rule, we incorporate changes to the proposed rule as outlined in our responses below. As comments were often similar or covered multiple topics, we have grouped comments and responses by topic areas, which generally correspond to specific sections of the proposed Refuge public use regulations in the May 21, 2015, proposed rule.

    Aircraft—50 CFR 36.39(i)(1)

    (1) Comment: Some commenters expressed support for the changes to Refuge regulations opening additional areas of the Refuge for airplane use (Chickaloon Flats, lake in Kenai Wilderness) citing the benefits of expanded access to users; some commenters expressed opposition to these changes citing impacts to the quality of experience for users accessing wilderness areas using non-motorized means. Some commenters stated that the additional lake being opened in the Kenai Wilderness for hunters drawing Alaska Department of Fish and Game hunt permits should be open to all users. Some commenters expressed opposition to continued closures to airplane use on the Refuge under existing regulations, stating that they unnecessarily restricted access for hunters, and/or recommended that the Service expand areas of the Refuge open for aircraft use beyond that proposed to increase access opportunities. Some commenters inquired about the status of the Service's commitment to evaluate effects of the regulations that restrict airplane access to lakes otherwise open based on the presence of nesting or brood-rearing trumpeter swans. One commenter requested that a legal description be included for the expanded area open to airplane use on the Chickaloon Flats.

    Our Response: The changes to the Refuge aircraft regulations in this rule implement decisions from the Refuge's 2010 CCP and the record of decision (ROD) for its accompanying environmental impact statement. Regulations governing use of aircraft on the Refuge are in place to protect refuge resources, consistent with meeting Refuge purposes including the conservation of fish and wildlife populations in their natural diversity and its Wilderness purposes.

    Consistent with its commitment in the ROD, the Service will complete an analysis of trumpeter swan use of Refuge wetlands and evaluate its effect on airplane access under the regulations. Any further changes to Refuge aircraft regulations would be the subject of a future rulemaking.

    We added a legal description of the expanded area open to airplane use in the Chickaloon Flats to this final rule.

    Motorboats—50 CFR 36.39(i)(2)

    (2) Comment: Some commenters expressed support for changes to Refuge regulations establishing boat and motor restrictions for sections of the Kenai River and Skilak Lake within the Refuge. Some commenters requested that the Service reconsider the proposed 10 horsepower motor restriction for boat motors in selected Refuge lakes; one commenter supported this change.

    Our Response: We proposed regulations establishing boat and motor restrictions for sections of the Kenai River and Skilak Lake within the Refuge to protect refuge resources and to enhance consistency with existing State regulations for the Kenai River Special Management Area. We re-evaluated the need for a restriction in the proposed rule limiting boat motors to 10 horsepower or less in selected lakes. We will continue to rely on the existing “no wake” requirement in these lakes to minimize disturbance to wildlife and impacts to non-motorized boaters. We do not include the maximum horsepower requirement for the identified lakes in this final rule.

    Off-road Vehicles—50 CFR 36.39(i)(3)

    (3) Comment: One commenter requested that the Service consider allowing the use of off-road vehicles for ice fishing access during periods of adequate snow/ice cover. One commenter expressed support for clarifying where use of 4-wheel-drive vehicles is allowed on the Refuge. One commenter expressed opposition to the addition of jet skis and other personal watercraft to the list of prohibited watercraft; one commenter supported this change.

    Our Response: Under the regulations, off-road vehicle use is prohibited on the Refuge. This prohibition is in place to prevent disturbance to wildlife and habitat degradation. The Service does not consider an exception to this prohibition for ice fishing to be warranted, as adequate motorized access, through use of highway vehicles and snowmobiles on identified lakes, is already provided for ice fishing under the regulations. The regulations prohibit operation of motorized watercraft with the exception of motorboats; specifying that jet skis and other personal watercraft are among prohibited watercraft adds clarity for the public. We did not make any changes to the rule in response to these comments.

    Snowmobiles—50 CFR 36.39(i)(4)

    (4) Comment: One commenter expressed support for increasing the allowable width of snowmobiles from 46 to 48 inches, and questioned why Watson Lake was not included in the list of lakes that allow use of snowmobiles for ice fishing when such use is allowed on other lakes where highway vehicles are allowed for the same purpose. A commenter requested clarification on the need for a Refuge-specific prohibition on use of snowmobiles to pursue, chase, or herd wildlife, stating that this change was redundant with existing Federal regulations. Some commenters supported the snowmobile regulations as proposed.

    Our Response: Under the regulations, use of snowmobiles for ice fishing is allowed on the same lakes within the Skilak WRA that are open to highway vehicle use for ice fishing. Identifying specific lakes as open to snowmobile use for ice fishing is necessary within the Skilak WRA because this is an area of the Refuge that is otherwise closed to snowmobile use. Watson Lake lies within an area of the Refuge that is open to general snowmobile use when the Refuge has been opened to such use (based on a determination that adequate snow cover exists between the dates of December 1 and April 30), which in most years negates the need to include it in the list of lakes open to snowmobile use to provide access for ice fishing. On the rare occasions that the Refuge remains closed to snowmobiles because of inadequate snow cover but vehicular use of Watson Lake for ice fishing is possible, the Service can consider implementing a temporary opening to allow use of snowmobiles on Watson Lake for ice fishing.

    In this final rule, we specify that snowmobile operation is prohibited to “herd, harass, haze, pursue, or drive wildlife” in order to clarify to the Refuge-specific regulations, which, before the effective date of this final rule (see DATES), simply prohibit “harassment of wildlife” using snowmobiles (50 CFR 36.39(i)(4)(viii)). The Service believes adding specificity and clarity to these regulations benefits the public and will lead to more effective resource protection on the Refuge, and that this change in regulatory language is warranted.

    We did not make any changes to the rule in response to these comments.

    Hunting and Trapping—50 CFR 36.39(i)(5) and 36.39(i)(6)

    (5) Comment: Some commenters stated that the Service's amendment of the Refuge public use regulations governing hunting and trapping, specifically those related to firearms discharge and hunting brown bears over bait, were not adequately vetted through a public process and were not adequately justified in the proposed rule, and therefore did not meet requirements under ANILCA for implementing Federal regulations for establishing closures and/or the requirements of the National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.). Some commenters stated that the public could not meaningfully comment because of the lack of justification in the proposed rule. One commenter stated that the Service's proposed amendments to the Refuge public use regulations governing hunting and trapping are outdated and that the Service has not adequately complied with NEPA for its rulemaking by failing to analyze the direct, indirect and cumulative impacts of hunting and trapping carnivores on the Refuge.

    Our Response: Federal regulations implementing ANILCA at 50 CFR 36.42(b) provide that in making a determination to close an area or restrict an activity, the Refuge Manager will be guided by several factors, including public health and safety, resource protection, and other management considerations necessary to ensure an activity or area is being managed in a manner compatible with the purposes for which the Refuge was established. As we stated in the May 21, 2015, proposed rule (80 FR 29277), we proposed changes to the Refuge public use regulations (including amending regulations specific to hunting and trapping) to ensure management of public use in a manner such that these activities remain compatible with Kenai NWR's establishment purposes and the Refuge System mission; to ensure consistency with Service policy, directives, and approved management plans; to minimize conflicts between authorized users of the Refuge; and to protect public safety.

    Federal regulations at 50 CFR 36.42(e) require that permanent closures or restrictions on national wildlife refuges in Alaska shall be made only after notice and public hearings in the affected vicinity and other locations as appropriate, and after publication in the Federal Register. The Service complied with this requirement. We published our proposed rule to amend the Refuge's public use regulations, including amending Refuge regulations for hunting and trapping, in the Federal Register on May 21, 2015. We provided a 60-day public comment period, ending July 20, 2015, on the proposed rule, and we held public hearings in Soldotna (June 17, 2015) and Anchorage (June 18, 2015), Alaska, on the proposed rule.

    The Service analyzed its proposed rule amending the Refuge's public use regulations, including proposed changes to hunting and trapping regulations, in accordance with the criteria of NEPA and Department of the Interior policy in part 516 of the Departmental Manual (516 DM). We determined that the rule is considered a categorical exclusion under 516 DM 8.5(C)(3), which categorically excludes the “issuance of special regulations for public use of Service-managed land, which maintain essentially the permitted level of use and do not continue a level of use that has resulted in adverse environmental impacts.” This rulemaking will result in small incremental changes in public use of the Refuge, both increasing and decreasing use, but overall will maintain permitted levels of use and will not continue a level of use that has resulted in adverse environmental impacts.

    This rulemaking supports implementing the Service's management direction identified through approved Refuge management plans, including the 2010 Kenai NWR revised CCP and the 2007 Kenai NWR Skilak WRA revised final management plan. Specific to hunting and trapping on the Refuge, the Service completed compatibility determinations in 2007, for hunting, hunting of black bears using bait, and trapping concurrent with development of the Refuge's 2010 revised CCP, which was accompanied by an environmental impact statement. These activities were determined to be compatible, subject to stipulations required to ensure compatibility that includes adherence to pertinent State and Federal regulations. The Service addressed hunting and trapping in the Skilak WRA in its 2007 Skilak WRA final revised management plan and its accompanying environmental assessment.

    The Service is adopting the proposed regulations, as amended in this final rule (see Table: Summary of Changes From Proposed Rule, below), for the Refuge, specific to hunting and trapping, to meet its legal mandates; to ensure consistency with policy, directives, and approved management plans; and to ensure public safety. We did not make any changes to the rule in response to these comments.

    (6) Comment: Some commenters stated that the changes to Refuge regulations governing hunting and trapping in the proposed rule, specifically those related to firearms discharge along the Russian and Kenai Rivers, use of bait for hunting brown bears, and/or hunting and trapping in the Skilak WRA, are not necessary to meet the Service's legal mandates for the Refuge, are counterproductive to meeting the Refuge's original establishment purpose as the Kenai National Moose Range, conflict with provisions of the ANILCA and the National Wildlife Refuge Administration Act, are an unjustified and unnecessary preemption of State of Alaska management of wildlife, and/or are inconsistent with provisions of the 1982 Master Memorandum of Understanding (MMOU) between the Service and the Alaska Department of Fish and Game.

    Our Response: The National Wildlife Refuge System Administration Act of 1966, as amended (16 U.S.C. 668dd-668ee) recognizes six wildlife-dependent recreational uses as priority public uses of the Refuge System: hunting, fishing, wildlife observation and photography, and environmental education and interpretation. These uses are legitimate and appropriate public uses where compatible with the Refuge System mission and individual refuge purposes, and are to receive enhanced consideration over other uses in planning and management. All six of the priority public uses have been determined compatible and are authorized on the Refuge.

    The Service considers our regulations governing hunting and trapping on the Refuge necessary to meeting our mandates under ANILCA to conserve healthy populations of wildlife in their natural diversity on the Refuge, to meet its Wilderness purposes, and to meet its purpose for providing compatible wildlife-oriented recreational opportunities, which include both consumptive and non-consumptive activities.

    By law (National Wildlife Refuge System Administration Act of 1966, as amended; Alaska National Interest Lands Conservation Act of 1980), regulations (43 CFR part 24), and policy (the Service Manual at 605 FW 1 and 605 FW 2), the Service must, to the extent practicable, ensure that refuge regulations permitting hunting and fishing are consistent with State laws, regulations, and management plans. In recognition of the above, non-conflicting State general hunting and trapping regulations are usually adopted on refuges. Hunting and trapping, however, remain subject to legal mandates, regulations, and management policies pertinent to the administration and management of refuges.

    Under the 1982 MMOU between the Service and the Alaska Department of Fish and Game, it is recognized that taking of fish and wildlife by hunting, trapping, or fishing on Service lands in Alaska is authorized under applicable State and Federal law unless State regulations are found to be incompatible with documented refuge goals, objectives, or management plans. The MMOU commits the Service to utilize the State's regulatory process to the maximum extent allowed by Federal law in developing new or modifying existing Federal regulations or proposing changes in existing State regulations governing or affecting the taking of fish and wildlife on Service lands in Alaska. The MMOU also recognizes that the Service's responsibility for regulating human use on the Refuge.

    The Service coordinated with the Alaska Department of Fish and Game in development of the Refuge's 2010 CCP and 2007 Skilak WRA final revised management plan, and during the development of the proposed and this final rule. The Service continues to actively participate in the State's regulatory process with the Alaska Board of Game on issues related to hunting and trapping on the Refuge, including recent coordination on hunting brown bears over bait and hunting in the Skilak WRA, both of which are subjects of this rulemaking. The Service remains committed to working with the State of Alaska and using State regulatory processes, consistent with the MMOU. We did not make any changes to the rule in response to these comments.

    Hunting and Trapping, Discharge of Firearms—50 CFR 36.39(i)(5)(i)

    (7) Comment: Some commenters expressed opposition to the proposed firearms discharge restriction within 1/4 mile of the shorelines of the Kenai River and Russian River within the Refuge, citing one or more of the following:

    • Discharge of firearms does not create public safety issues because very little hunting occurs in the area or because public use levels for fishing drastically fall as freeze-up approaches in late September; and

    • There is no biological basis for, or data or scientific need justifying, the closure. Some commenters expressed support for the Service's proposed firearms discharge prohibition along the Kenai and Russian rivers, citing its benefits to protection of public safety.

    Our Response: Federal regulations at 50 CFR 36.42(b) provide that in making a determination to close an area or restrict an activity, the Refuge Manager shall be guided by several factors, including public health and safety. Specifically to address public safety issues, the regulations currently prohibit firearms discharge on the Refuge as follows: Firearms may not be discharged within 1/4 mile of designated public campgrounds, trailheads, waysides, buildings or the Sterling Highway from the east Refuge boundary to east junction of the Skilak Loop Road (50 CFR 36.39(i)(5)(i)).

    As stated in the May 21, 2015, proposed rule, we proposed the firearms discharge prohibition on lands within 1/4 mile of the Kenai River shoreline upstream and downstream of Skilak Lake and the Russian River shoreline from its confluence with the Kenai River upstream to the Russian River Falls, with exceptions for the use of shotguns for waterfowl and small game hunting and firearms used while lawfully trapping, specifically to enhance public safety along these intensively used river corridors.

    Field observations by Refuge staff and interactions with users and permitted fishing guides and outfitters have documented steadily increasing levels of public use, primarily for fishing but also for river floating (Kenai River only), and associated activities such as hiking and wildlife viewing, on and along the upper Kenai and Russian rivers within the Refuge, and that the timing of relatively heavy use for these activities now includes fall and spring months during ice-free periods. Highest periods of use in fall and spring for fishing occur from September through mid-October and late March through April, respectively. River floating on the upper Kenai River begins in May and extends through October, with highest use levels occurring from June through September. Similarly, high levels of public use occur in the middle Kenai River below Skilak Lake within the Refuge during fall and spring, primarily for fishing. Much of the increased use of both the Kenai and Russian rivers during fall and spring months can be attributed to the increasing popularity of their rainbow trout fisheries.

    Publicly available study reports corroborate these observations. For example, a recent recreation study of the Kenai River completed in 2010, by Drs. Douglas Whittaker and Bo Shelby for the Alaska Department of Natural Resources, Division of State Parks and Recreation (Kenai River Recreation Study, Major Findings and Implications, 2010), reported that perceived crowding on the Upper Kenai River (between Sportsman's Landing and Jim's Landing) in September (when the primary fish targeted are rainbow trout, Dolly Varden, and silver salmon) is as high as for some salmon fisheries occurring during the summer months.

    Recent takes of brown bears along the Russian and Kenai rivers during the falls of 2013 and 2014 posed threats to public safety, as bears were shot in close proximity to other users fishing from shore, wading, or boating, and firearms and ammunition with substantial lethal distances were used in areas where sight distances are extremely limited due to vegetation and river meanders. These takes occurred on, along, or immediately adjacent to river shorelines and within the 1/4-mile buffer distance established by this rule. In addition, discharge of firearms to “warn” or deter bears presents a growing threat to public safety along the Russian and Kenai rivers.

    Recently enacted changes to State hunting regulations for brown bears on the Kenai Peninsula have increased the potential for firearms discharge to result in threats to public safety in these areas. Current brown bear hunting season dates of September 1 to May 31 substantially overlap with periods of high public use along the Russian and Kenai rivers during fall and spring (in the 7 years prior to 2008, brown bear hunting season dates were October 15 to October 30).

    The Service considers adoption of this rule necessary to reduce threats to public safety posed by discharge of firearms along the Russian and Kenai rivers during periods of high visitation for activities including fishing, river floating, hiking, and wildlife observation. We did not make any changes to the rule in response to these comments.

    (8) Comment: Some commenters stated that the closure affects the taking of wildlife on Service lands, and consistent with the MMOU between the Service and the Alaska Department of Fish and Game, should be first submitted by the Service to the Alaska Board of Game under the State regulatory process for consideration. Some commenters stated that the area affected by the proposed firearms discharge prohibition is a traditional moose and bear hunting area and the rule will negatively impact these users.

    Our Response: The Service proposed the amendments to the regulations to enhance public safety along the Kenai and Russian rivers during periods of intensive public use. The rule is not intended to affect taking of wildlife on the Refuge, and will have negligible impacts on hunting opportunity and harvest levels for the reasons noted below.

    This rule allows for continued use of shotguns for waterfowl and small game hunting, and use of firearms while lawfully trapping, along the Kenai and Russian rivers. Waterfowl hunting along the Kenai River currently accounts for the vast majority of hunting activity in the affected area, as it has historically. This rule will have negligible impacts on overall hunting opportunity and harvest levels of black bears, brown bears, and moose on the Refuge, as most hunting activity for these species occurs outside of these river corridors. This rule expands the restriction on discharge of firearms on the Refuge by just under 4,000 acres, or approximately 0.2 per cent of lands in the Refuge currently open to hunting of moose, black bear, and brown bear (totaling over 1.9 million acres). In addition, reasonable opportunities to hunt these species with firearms in the vicinity of the Russian and Kenai rivers for those wishing to do so will continue to be available outside of the 1/4-mile river corridors established by this rule.

    The MMOU recognizes that the Service has responsibility for regulating human use on refuges in Alaska. Protection of public safety is a critically important responsibility of the Service in managing public use on refuge lands, and the Service deems this rule necessary to enhance public safety on and along these intensively used rivers. The Service remains committed to the terms of the MMOU and will continue to coordinate with the Alaska Board of Game and Alaska Department of Fish and Game on proposals whose intent is to affect the take of fish and wildlife on Service lands. We did not make any changes to the rule in response to these comments.

    (9) Comment: Some commenters stated that the Service proposed firearms discharge prohibition is not consistent, or does not enhance consistency, with State regulations on firearms discharge with the Kenai River Special Management Area (KRSMA) because it extends beyond KRSMA boundaries, is not date specific, and/or because the State's KRSMA regulations are contingent on the location of developed facilities or dwellings and do not apply to the entire length of the Kenai and Russian rivers. Some commenters requested that the Service consider less restrictive regulations for the discharge of firearms around buildings such as public use cabins in remote areas that are only accessible via boat, snowmobile, or float plane because firearm discharge closer to the cabin does not pose a safety concern.

    Our Response: While applying to lands and waters within the Refuge and outside of the KRSMA, this rule (including the clarification that the prohibition around buildings includes Refuge public use cabins) is consistent with, and complements, State firearms regulations for the KRSMA. State regulations (11 Alaska Administrative Code (AAC) 20.850) allow the use and discharge of a weapon for the purpose of lawful hunting or trapping in the KRSMA only on Skilak Lake and Kenai Lake, except that shotguns may be discharged below Skilak Lake for purpose of lawful hunting or trapping, from September 1 to April 30 annually. In addition, the discharge of any firearm within the KRSMA is prohibited within 1/2 mile of a developed facility or dwelling, except that discharge of a shotgun using steel shot no larger than size T is allowed at a distance of no less than 1/4 mile from a developed facility or dwelling.

    Consistent with State regulations, the Service's proposed firearms discharge prohibition along the Kenai and Russian rivers does not apply to firearms discharge on or along Skilak Lake. With very few, if any, exceptions, shotguns are used within the KRSMA to hunt waterfowl. Similarly, our regulations allow the use of shotguns for waterfowl hunting (and small game hunting), and allow use of any firearm while lawfully trapping, within the area of the Refuge to which the regulations apply. Allowances for these activities under our proposed rule, and in this final rule, span the season dates (September 1 to April 30) specified in the State regulations, negating a need to specify season dates.

    The Service's firearms discharge prohibition along the Russian River is also consistent with and complements U.S. Forest Service regulations restricting use of weapons in the vicinity of recreational facilities, and which apply to an adjoining area of similar size, in the Chugach National Forest from the Russian River's confluence with the Kenai River upstream to the Russian River Falls (36 CFR 261.10(d)). In 2015, the U.S. Forest Service expanded the weapons discharge prohibition in this area to address public safety concerns associated with use of weapons for bear hunting along the Russian River during periods of high public use (36 CFR 261.53(e)).

    The prohibition on discharge of firearms within 1/4 mile of buildings in the current regulations (50 CFR 36.39(i)(5)(i)) is meant to ensure public safety around buildings used by the public or administratively by Service personnel, and is unrelated to the building's location or the means of transportation used by the public to travel to the building.

    Similar to the basis for the Service's regulations, enhancing public safety was the basis for promulgation of State and Federal regulations restricting use of weapons on and/or along the Kenai and Russian rivers adjacent to the Refuge. We did not make any changes to the rule in response to these comments.

    (10) Comment: Some commenters stated that the Service's proposed rule is contradictory or does not adequately explain why discharging firearms for waterfowl and small game hunting or use of archery equipment does not pose a safety hazard when the use of firearms to take big game does, and that by omission, it appears the Service may be using public safety as justification to preclude a particular form of hunting.

    Our Response: While restricting the use of firearms, this rule allows for continued use of shotguns for waterfowl and small game hunting and use of firearms to dispatch animals while lawfully trapping. Waterfowl hunting is currently and has historically been the primary hunting activity conducted in the affected area, and it occurs primarily along the Kenai River below Skilak Lake. The use of shotguns in the areas traditionally used for waterfowl (and small game hunting) along the Kenai River poses minimal public safety concerns because of the locations and manner in which these activities are conducted and due to the more limited travel distances of shotgun ammunition used for waterfowl and small game hunting. Trapping seasons do not overlap with periods of high visitation, as the river corridors receive substantially less public use during winter. The Service therefore does not consider prohibitions on firearms discharge for these activities to be warranted. The Service also believes that use of archery equipment poses negligible risks to public safety in the affected area. We did not make any changes to the rule in response to these comments.

    (11) Comment: Some commenters expressed concern that the firearms discharge prohibition along the Kenai and Russian rivers would preclude use of firearms for personal protection, and suggested modification to allow for such use.

    Our Response: Neither the Service's current regulations nor this rule prohibiting firearms discharge in certain areas of the Refuge preclude the possession and/or use of firearms to take game in defense of life and property as defined under State law (5 AAC 92.410). We have amended this final rule to specifically state that the firearms discharge prohibition does not preclude the use of firearms to take game in defense of life and property as defined under State law.

    Hunting and Trapping Over Bait—50 CFR 36.39(i)(5)(ii)

    (12) Comment: Some commenters stated that the Service has not provided adequate information or justification nor completed required administrative processes necessary to preempt a recently adopted State regulation that allows for take of brown bears at black bear bait stations; the Service also has not explained adequately how it used the State's regulatory process in a manner consistent with the Master Memorandum of Understanding between the Service and the Alaska Department of Fish and Game. A commenter noted this prohibition in the proposed rule is an unnecessary replication of an existing Refuge special use permit stipulation.

    Our Response: Federal regulations at 50 CFR 36.42(b) provide that in making a determination to close an area or restrict an activity, the Refuge Manager shall be guided by several factors, including public health and safety, resource protection, and other management considerations necessary to ensure an activity or area is being managed in a manner compatible with the purposes for which the Refuge was established.

    As stated in the May 21, 2015, proposed rule (80 FR 29277), current Refuge regulations (50 CFR 36.39(i)(5)(ii)) specify that hunting black bears over bait on the Refuge requires a special use permit (FWS Form 3-1383-G). This requirement was promulgated in the 1980s (51 FR 32297) in recognition of issues associated with use of bait for hunting black bears on the Refuge, and the need to further regulate this method of take to ensure compatibility of this activity. The intent of this requirement has always been, and continues to be, to authorize the use of bait for the take of black bears only. This restriction is explicitly stated in the terms and conditions of the current Refuge special use permit issued for black bear baiting: “Hunting over bait is prohibited on the Kenai National Wildlife Refuge, with the exception of hunting black bears as authorized under the terms and conditions of this Special Use Permit.”

    The Service considers the clarification concerning hunting over bait that we are making in this final rule at 50 CFR 36.39(i)(5)(ii) necessary to meeting our mandates under ANILCA to conserve healthy populations of wildlife in their natural diversity on the Refuge, to meet the Refuge's Wilderness purposes, and to meet the Refuge's purpose for providing compatible wildlife-oriented recreational opportunities (both consumptive and non-consumptive). Specific to use of bait to take brown bears, the Service considers allowance of this method to be inconsistent with these mandates due to its potential to result in overharvest of this species, with accompanying population-level impacts, due to its high degree of effectiveness as a harvest method and the species' low reproductive potential. The Service also believes that baiting of brown bears has potential to modify bear behavior and increase human-bear conflicts, and that allowance of this method to take brown bears on the Refuge would result in increased baiting activity and pose an increased risk to public safety. These issues are further discussed in our response to Comment (13), below.

    In 2013, the Service formally communicated its regulatory requirement limiting hunting over bait to the take of black bears, and our intent to maintain this requirement, to the State of Alaska in advance of the Alaska Board of Game's adoption of a State regulation that allows take of brown bears at black bear bait stations on the Kenai Peninsula. In addition, the Service requested that Refuge lands be excluded should this State regulation be adopted.

    Codifying the Service's special use permit stipulation that prohibits hunting over bait with one exception for hunting of black bears provides additional notice to the public of this restriction, clarifies our longstanding intent to authorize only the take of black bears at permitted bait stations on the Refuge, and is consistent with meeting Refuge purposes under ANILCA. The Service deems this additional notice and clarification necessary in light of the Alaska Board of Game's 2013 adoption of a regulation allowing the take of brown bears at registered black bear baiting stations on the Kenai Peninsula. We did not make any changes to the rule in response to these comments.

    (13) Comment: Some commenters expressed opposition to prohibiting harvest of brown bears over bait, stating that it is not biologically justified because the Refuge brown bear population is higher than the Service believes it is, that baiting allows for selective harvest of bears, and that studies have shown that baiting does not result in food-conditioning of bears. Some commenters stated that baiting for bears (brown and black) can be conducted under recognized principles of sustained yield management; that adequate protections exist under State management, including reporting requirements and limiting harvest of female bears, to minimize the potential for overharvest; and that the sex composition of the recent brown bear harvest at bait stations on the Kenai Peninsula, which was predominantly male bears, further supported that hunting brown bears over bait was consistent with sustained yield management.

    Our Response: Allowance of take of brown bears at black bear baiting stations was one of several changes that substantially liberalized State regulations for sport hunting of brown bears on the Kenai Peninsula beginning in 2012. Harvest levels, and overall human-caused mortalities, of brown bears increased substantially following the changes in State hunting regulations enacted in 2012 and 2013, with resulting impacts on the Kenai Peninsula's brown bear population. On average, 21 brown bear human-caused mortalities (hunting and nonhunting) occurred annually on the Kenai Peninsula from 1995 through 2011. From 2012 to 2014, the annual average nearly tripled to 61 bears. Human-caused mortalities during this period totaled 184 brown bears, 148 of which were taken by hunters. Human-caused mortalities in 2013 (71) and 2014 (69) were over 6 times the 50-year annual average of 11 brown bears killed from 1961 through 2011.

    The Kenai brown bear population was estimated in 2010 through a joint field study conducted by the Refuge and U.S. Forest Service. This DNA-based mark-recapture study generated a Kenai Peninsula-wide brown bear population estimate of 582 bears (95 percent lognormal confidence interval of 479 to 719 bears). This study and its results were peer-reviewed and recently published in the Journal of Wildlife Management (Morton et al. 2016). The Service considers this to be the best available scientific estimate of this population.

    Population modeling by the Service (using the model Vortex 9.9) suggested that known human-caused mortality of Kenai Peninsula brown bears from 2012 to 2014, following changes in State brown bear hunting regulations, reversed the previous increasing trajectory of the brown bear population and resulted in a decline of approximately 18 percent (a modeled decline from the 2010 population estimate of 582 bears to 478 bears).

    In 1998, due to concerns about population status, habitat loss and increasing levels of human-caused mortality, the Alaska Department of Fish and Game classified the Kenai brown bear population as a “population of special concern.” Using the 2010 population estimate and brown bear demographic data obtained from ongoing telemetry studies, modeling (Vortex 9.9) also suggested that similar levels of human-caused mortality of brown bears documented from 2012-2014 (primarily resulting from sport hunting) would continue to reduce the brown bear population to levels similar to those which in the recent past posed conservation concerns. The Service deemed this rapid reduction of the Kenai Peninsula brown bear population, along with the potential for continued decline, to be inconsistent with meeting its legal mandates to conserve healthy wildlife populations (including brown bears) in their natural diversity on the Refuge, to provide for wildlife-oriented recreational opportunities that include both consumptive and non-consumptive activities, and to meet the Refuge's Wilderness purposes; therefore, the Service implemented closures to brown bear sport hunting on the Refuge in 2013 and 2014. Additional information regarding the Service's recent management of sport hunting of brown bears on the Refuge, which also provides greater detail on Kenai brown bear management history, population status and dynamics, and modeling results, is available as part of the rulemaking administrative record, available at Kenai National Wildlife Refuge.

    Annual harvests of brown bears in 2013 and 2014 in Game Management Unit (GMU) 7 on the Kenai Peninsula demonstrate the increased effectiveness of hunting this species over bait. According to Alaska Department of Fish and Game harvest statistics, the 2013 harvest of brown bears in GMU 7 prior to baiting being legalized was 12 bears during a 198-day season. In 2014, harvest during a 189-day season was 38 brown bears, of which 28 (77 percent) were harvested over bait. Since becoming legal for the first time in spring 2014, harvest of brown bears at bait stations has accounted for the majority of brown bear harvest on the Kenai Peninsula. In 2014, 62 percent (40 of 65) of bears harvested were taken over bait. As of January 2016, preliminary 2015 harvest statistics available from the Alaska Department of Fish and Game indicate that 89 percent (16 of 18) of bears taken in spring and 59 percent (16 of 27) of bears legally taken by sport hunters overall have been harvested over bait.

    Adherence to harvest caps for adult female bears and overall human-caused mortality can help ensure sustainability of harvests. However, based on our modeling (using Vortex 9.9), human-caused mortality of brown bears at current harvest caps (maximums of 12 adult female bears and 60 bears overall), provided in formal direction to the Alaska Department of Fish and Game by the Alaska Board of Game in 2015, would result in a continued reduction of the Kenai brown bear population. Based on best available scientific information and population modeling using the Vortex 9.9 model, the Service believes that allowance of take of brown bears over bait on the Refuge would increase human-caused mortality of Kenai brown bears to levels which would continue to reduce the population, with potential to result in conservation concerns for this population. We also note that the sex and age composition of the brown bears harvested over bait on the Kenai Peninsula in 2014 and 2015 represents a small and short term sample, and may not be representative of harvest composition over a longer period of time.

    The Service believes that a cautious approach to management of Kenai Peninsula brown bears is scientifically warranted due to several factors. The Service must consider these factors in ensuring that hunting is administered on the Refuge in a manner that ensures that the Service's legal mandates are met, and they underlie our decision to maintain existing regulations that restrict harvest over bait to take of black bears only. Black bears occur in much higher densities than brown bears on the Kenai Peninsula, have higher reproductive potential than brown bears, and as such can support higher harvest levels and are less susceptible to overharvest. Conversely, brown bears have one of the lowest reproductive potentials of any North American mammal, and at current densities, the Kenai brown bear population remains a relatively small population (Morton et al. 2016) that is highly sensitive to adult female and overall human-caused mortality levels. Genetics studies have determined that Kenai brown bears comprise an insular population (reported in the Canadian Journal of Zoology in 2008 by Jackson et al.), which means that immigration from mainland Alaska will not assist in sustaining the population, and that Kenai brown bears have very low haplotypic genetic diversity (Jackson et al. 2008), which has unknown but potentially important conservation implications. The Kenai brown bear population will continue to be strongly influenced by habitat loss and fragmentation and multiple potential sources of human-caused mortality as the human population continues to grow on the Kenai Peninsula and recreational use of public lands increases. Finally, timely and accurate monitoring of the status of the Kenai Peninsula brown bear population is extremely difficult at best, costs associated with monitoring are high, and funding for monitoring is usually limited and never guaranteed. This is important given that the increased effectiveness of harvesting brown bears over bait would likely mask the effects of reduced bear densities on harvest success, thereby increasing potential for overharvest in the absence of adequately rigorous population monitoring.

    Maintaining our existing limits on hunting over bait is also intended to minimize the potential for public safety issues associated with conditioning brown bears to human foods commonly used at bait stations. While baiting for black bears is currently allowed on the Refuge and has potential to create food-conditioned bears, we would expect increased baiting activity and increased potential for human-bear conflicts if take of brown bears over bait were allowed. The number of permitted black bear baiting stations on the Kenai Peninsula increased from roughly 300 in years prior to, to just over 400 bait stations each year following (2014 and 2015), adoption of State regulations allowing harvest of brown bears over bait. It is well documented that food-conditioning of bears results in increased potential for negative human-bear encounters and increased risk to public safety (as reported by Herrero in 1985 in the book Bear attacks: their causes and avoidance, and by Herrero and Fleck in 1990 in Bears: Their Biology and Management, Volume 8, A Selection of Papers from the Eighth International Conference on Bear Research and Management). There is also an increased likelihood that food-conditioned bears would be killed by agency personnel or in defense of life or property. Consistent with Service policy on managing recreational uses in a manner that helps ensure public safety, the Service actively promotes food storage and other practices aimed specifically at reducing the potential for human-bear conflicts.

    We did not make any changes to the rule in response to these comments.

    (14) Comment: Some commenters expressed support for prohibiting take of brown bears at bait stations, citing one or more of the following:

    • Legalization of this practice by the State in support of predator control is not appropriate on refuges;

    • The practice is unethical and conflicts with principles of “fair chase” hunting; and

    • The practice poses a threat to public safety.

    Most of these commenters also noted that the Service should also prohibit baiting of black bears on the Refuge for the same reasons.

    Our Response: Codifying this prohibition as part of the Refuge's public use regulations provides additional notice to and clarification for the public of the Service's longstanding intent to authorize only the take of black bears at permitted bait stations on the Refuge. The Service last evaluated black bear baiting through a 2007 compatibility determination, and found the activity to be compatible. We did not make any changes to the rule in response to these comments.

    Hunting and Trapping in Skilak Wildlife Recreation Area—50 CFR 36.39(i)(6)

    (15) Comment: Some commenters expressed opposition to the Service's proposed hunting and trapping regulations for the Skilak WRA, citing one or more of the following:

    • State-managed hunting and trapping in the Skilak WRA is compatible with Service public use objectives to provide opportunities for wildlife viewing in the area;

    • The Service has not provided biological data demonstrating the need for the closures to meet these objectives;

    • The closures are inconsistent with ANILCA and/or Service policy governing management of wildlife-dependent recreational uses because they inappropriately favor one compatible use (wildlife viewing) over another (hunting);

    • The closures set a precedent that the Refuge would be the only National Wildlife Refuge in Alaska that has an area set aside for one user group;

    • The closures violate ANILCA by creating a conservation area within an existing conservation unit;

    • Limitations on wildlife viewing in the Skilak WRA were more dependent upon terrain, weather, season, time of day, and other factors than sustainable harvests of wildlife; and

    • Hunting of predators is needed to balance wildlife populations, prevent the area's moose population from being overrun, and provide visitors with opportunities to enjoy a wider variety of wildlife.

    Some commenters expressed support for the Service's proposed hunting and trapping regulations for the Skilak WRA, citing one or more of the following:

    • Managed as it currently is, the Skilak WRA is an extremely valuable public asset;

    • The Skilak WRA is an outstanding opportunity for the Refuge to fulfill its wildlife viewing, photography, and environmental education and interpretation mandates on the Refuge, but only if harvest is restricted. Additional hunting in the Skilak WRA would degrade, undermine, and conflict with public opportunities for other recreation and education that have been provided for 30 years; and

    • The proposed regulations are necessary to meet goals and objectives of approved refuge management plans and legal mandates to maintain healthy populations of wildlife on refuges.

    Our Response: The Skilak WRA is a 44,000-acre area of the Refuge that has, since 1985, been managed with a primary emphasis on providing the public enhanced opportunities for wildlife viewing, and environmental education and interpretation. The Service has worked extensively with the Alaska Department of Fish and Game and the Alaska Board of Game over the years in planning and implementing management direction, including management of hunting and trapping, in the Skilak WRA.

    In 1985, the Service released a record of decision for the Refuge's first comprehensive management plan. A directive of this plan was the establishment of a special area, the “Skilak Loop Special Management Area,” that would be managed to increase opportunities for wildlife viewing, and environmental education and interpretation. In December 1986, the Service, working closely with the Alaska Department of Fish and Game, identified specific goals for providing wildlife viewing and interpretation opportunities, and hunting and trapping opportunities were restricted so that wildlife would become more abundant, less wary, and more easily observed. Regulatory proposals that prohibited trapping, allowed taking small game by archery only, and provided a moose hunt by special permit were developed and approved by the Alaska Board of Game in 1987. Hunting of all other species was prohibited. These State of Alaska regulations remained in effect until 2013, with modifications to allow for a youth-only firearm small game hunt in a portion of the area in 2007, and for the use of falconry to take small game in 2012.

    In 2005, the Alaska Board of Game adopted a proposal to allow firearms hunting of small game and fur animals (as practical matter in the area, fur animals would include lynx, coyote, beaver, red fox and squirrel), but subsequently put that State regulation on hold pending the Service's development of an updated management plan for the area. The Service initiated a public planning process with a series of public workshops in November 2005, and evaluated management alternatives through an environmental assessment, which was made available for public review and comment in November 2006.

    The Service released a finding of no significant impact, and the Kenai NWR Skilak WRA revised final management plan was released in June 2007. This plan reaffirmed the overall management direction for the Skilak WRA as a special area to be managed primarily for enhanced opportunities for wildlife viewing and environmental education and interpretation, while allowing other non-conflicting wildlife-dependent recreational activities. The plan maintained longstanding restrictions on hunting (including hunting of fur animals) and a trapping closure, with the exception of adding a “youth-only” small game firearms hunt in the western portion of the area. In 2007, the Alaska Board of Game adopted State regulations maintaining the closures and restrictions, and opening the “youth-only” small game firearm hunt.

    Consistent with its 2007 Skilak WRA final revised management plan, the Service enacted a permanent closure restricting hunting and closing trapping in the Skilak WRA in November 2013 (see 78 FR 66061, November 4, 2013), which mimicked State of Alaska hunting and trapping regulations for the area in effect prior to 2013. The Service implemented this current closure in response to action taken by the Alaska Board of Game in March 2013, which opened the Skilak WRA to taking of lynx, coyote, and wolf within the area under State hunting regulations. Under this new State regulation, which became effective July 1, 2013, taking of these species is allowed during open hunting seasons from November 10 to March 31. In advance of this action, the Service requested that the Alaska Board of Game not adopt the proposal establishing these regulations because it would be inconsistent with Refuge management objectives for the area, and advised that doing so would require the Service to maintain restrictions on the hunting of these species under its own authorities.

    A primary basis for the Service's decision to issue this permanent closure was first recognized in the original 1986 management goals and specific management objectives for furbearers, which led to the closure of hunting and trapping of these species in the Skilak WRA. Furbearers such as wolves, coyote, and lynx occur in relatively low densities, and are not as easily observed as more abundant and/or less wary wildlife species. Annual removal of individual wolves, coyote, or lynx from the Skilak WRA, and/or a change in their behavior, due to hunting (or trapping) would reduce opportunities for the public to view or photograph or otherwise experience these species. While we concur that factors such as terrain, vegetation, and time of day affect wildlife viewing, visitors to the Skilak WRA experience and learn about these species in a variety of ways, such as observing tracks, hearing vocalizations, or observing other signs of the species. Similarly, Refuge environmental education and interpretation programs that benefit from enhanced opportunities provided in the area to view or otherwise experience these species would be negatively impacted. Even in the absence of area-specific scientific studies and data, it is a reasonable conclusion that annual harvest would maintain reduced densities, and/or affect behavior, of these species in the Skilak WRA and degrade opportunities for wildlife observation, photography, and environmental education and interpretation, given the area's small size, its accessibility by road, proximity to population centers, and likely hunting (or trapping) pressure.

    Minimizing conflicts between non-consumptive and consumptive users of the Skilak WRA and ensuring public safety also continue to be important considerations for how hunting and trapping is managed in the area. While highest levels of public use in the Skilak WRA occur in the summer months, observations by Refuge staff and records of use of Refuge public use cabins indicate that fall and winter recreational use of the area for many activities, including hiking, general nature observation and photography, night sky observation, cross country skiing, and winter camping, is substantial and increasing. Given this increased public use during winter, the Service believes that allowing hunting (or trapping) of wolves, coyotes, and lynx during winter months in the Skilak WRA would increase the potential for conflicts between users and safety issues.

    Providing environmental education and interpretation for the public, and for “wildlife-oriented” recreational uses, which includes non-consumptive activities such as wildlife viewing as well as hunting and fishing, are legally mandated Refuge purposes under ANILCA. These two purposes are in fact unique purposes to this Refuge among all refuges in Alaska. Meeting Refuge public use objectives in the Skilak WRA is consistent with and directly supports meeting these Refuge purposes. Regulating non-conflicting hunting activities and the use of firearms in the Skilak WRA in a manner that supports meeting all Refuge purposes, minimizes conflicts among user groups, and enhances public safety is necessary to ensure the compatibility of hunting as an authorized use on the Kenai NWR.

    Management that provides for emphasis on non-consumptive uses in the Skilak WRA, while allowing for non-conflicting hunting activities and enhancing public safety, is also consistent with Service policy at 605 FW 1 for managing wildlife-dependent recreational uses on National Wildlife Refuges. Hunting and trapping of lynx, coyote, and wolves under State of Alaska regulations remains authorized on over 97 percent of the Refuge (over 1.9 million acres).

    The final rule codifies the Service's November 2013 permanent hunting restrictions and trapping closure, established in accordance with 50 CFR 36.42, in the Skilak WRA (78 FR 66061, November 4, 2013). This rule supports implementation of the Service's 2007 final revised management plan for the Skilak WRA, which reaffirmed management objectives for the area established under the Refuge's 1985 Comprehensive Management Plan. We did not make any changes to the rule in response to these comments.

    (16) Comment: Some commenters stated that the Service's hunting and trapping closures would not improve wildlife viewing opportunities in the Skilak WRA because the Service has failed to fully implement its facilities and habitat plans for the area, or that additional infrastructure would benefit wildlife viewing opportunities.

    Our Response: To further development of wildlife viewing, and environmental education and interpretation opportunities, in 1988, the Service prepared a step-down plan for public use facility management and development, and renamed the area the Skilak WRA. Over $5 million in improvements to existing, and development of new, visitor facilities occurred in ensuing years as funding permitted, and included new and improved roads, scenic turn-outs, campgrounds, hiking trails, interpretive panels and information kiosks, viewing platforms, and boat launches. While not all planned developments have been completed, the Refuge currently maintains 8 facility access roads, 8 public campgrounds, 3 public use cabins, 10 hiking trails (totaling just over 20 miles), 3 scenic overlooks, 11 boat launches, 12 informational kiosks and numerous interpretive panels, and 13 developed parking areas within the Skilak WRA in support of meeting its public use management objectives for the area. The Service has also implemented small-scale habitat management projects within the Skilak WRA. The Service will continue to develop recreational infrastructure and habitat projects in the area, consistent with approved management plans, as allowed by available funding and staffing. We did not make any changes to the rule in response to these comments.

    Fishing—50 CFR 36.39(i)(7)

    (17) Comment: A commenter requested that dates of a fishing closure for an area 100 feet upstream and downstream of the Russian River Ferry dock on the south shore of the Kenai River be changed from June 1 to August 15 to June 11 to August 20 to provide consistency with State sport fishing regulations. One commenter opposed the closure stating it was unnecessary.

    Our Response: In this final rule, we eliminate those fishing closure dates and specify that the closure is in effect during hours of operation of the Russian River Ferry. Ferry operations open concurrent with the opening day of recreational fishing for salmon and resident fish species in the area in June, and operations typically continue through Labor Day. We believe this change simplifies the rule while continuing to meet the intent of the existing regulations to enhance public safety in the vicinity of the Ferry dock and landing area.

    Public Use Cabin and Camping Area Management—50 CFR 36.39(i)(8)

    (18) Comment: Several commenters expressed opposition to the Service's proposal to prohibit dispersed camping in an area within 100 yards of the banks of the Kenai River along two sections of the River within the Refuge (upper Kenai River and Middle Kenai River), citing loss of traditional camping opportunity, impacts to visitor safety and increased risks to personal property, and expansion of habitat impacts from new trail and campsite development and use; some commenters supported this prohibition, citing the benefits of riverbank habitat protection. Some commenters stated the need for this prohibition was not adequately justified. Some commenters noted that while the prohibition was addressed for the upper Kenai River in the Refuge 2010 CCP, a similar prohibition for the Middle Kenai River had not been previously considered by the Service through a public process and additional evaluation, and public input was needed.

    Our Response: The prohibition on dispersed camping within 100 yards of the banks of the upper Kenai River in this rule implements decisions from the Refuge's 2010 CCP and the record of decision for its accompanying environmental impact statement. River bank closures along the Kenai River are commonly used by resource agencies to protect sensitive riparian vegetation, which is subject to trampling, resulting in degradation of salmon rearing habitat. In the May 21, 2015, proposed rule, the Service proposed to implement this decision with a modification to allow for some dispersed camping along the upper Kenai River at designated sites. We chose this approach to enhance natural resource protection by reducing camping impacts along the upper Kenai River while allowing for some historical along-river camping use to continue. We have completed an evaluation of existing camping sites along the upper Kenai River and have identified 10 sites that will be designated for dispersed camping. These sites are identified on a map available on http://www.regulations.gov under Docket No. FWS-R7-NWRS-2014-0003 as a supporting document for this rulemaking. This map will also be available to the public electronically on the Refuge Web site (http://www.fws.gov/refuge/kenai/) and at the Refuge Headquarters.

    The May 21, 2015, proposed rule included the same camping restrictions for the Middle Kenai River within the Refuge. We have decided not to address dispersed camping along the Middle Kenai River within the Refuge in this rulemaking. The Service will continue coordination with the State on management issues affecting the Middle Kenai River, and will monitor and evaluate camping along the upper Kenai River and use the results of monitoring to inform a future public planning process. This final rule reflects this decision.

    Other Uses and Activities—50 CFR 36.39(i)(9)

    (19) Comment: A commenter stated that the proposed restriction on group size to 15 people in the Swanson River and Swan Lake Canoe routes was a substantive change to current management and is not adequately justified in the proposed rule. Some commenters stated that the rule should be modified to reflect that larger group sizes may be permitted at the discretion of the Refuge Manager, consistent with a decision in the 2010 Refuge CCP.

    Our Response: Group size in the Swanson River and Swan Lakes Canoe Routes is limited to 15 people under current Refuge regulations (see 50 CFR 36.39(i)(7)(vii)). In this final rule, we amend the regulations to state that larger group sizes may be allowed at the discretion of the Refuge Manager through issuance of a special use permit.

    (20) Comment: A commenter requested that the Service consider allowing use of bicycles and wheeled game carts on Refuge trails open to horses or snowmobiles; another commenter stated that industrial roads should be opened to bicycle use. A commenter was opposed to the allowance of wheeled game carts on industrial roads.

    Our Response: Use of non-motorized wheeled vehicles, which includes bicycles, are allowed only on roads open to public vehicular access under current Refuge regulations (see 50 CFR 36.39(i)(7)(v)). Use of bicycles on industrial roads within the Refuge is prohibited to protect public safety given the year-round use of these roads by large trucks and heavy equipment. In the proposed rule, the Service proposed to allow the use of wheeled game carts on industrial roads by hunters using these roads on foot for hunting access. We consider this a minor and reasonable change with little potential to impact habitats and/or public safety. Bicycle and/or game cart use of hiking trails and backcountry areas pose more substantive issues because of their potential to impact habitats, create conflicts between trail users, and pose public safety issues. In 2007, the Service evaluated compatibility of several Refuge activities involving general public access, recreation, and transport methods that are non-motorized, including bicycling. In that evaluation, we determined that, subject to Refuge regulations that restrict it to maintained roads open to public vehicular access, which are in place to prevent harm to refuge resources, bicycling was a compatible activity. We did not make any changes to the rule in response to these comments.

    (21) Comment: One commenter stated that additional Refuge trails, including trails in the Skilak Lake area, should be closed to horseback riding and packstock use.

    Our Response: We proposed, and in this rule make final, a prohibition that horses or other packstock are not allowed on the Fuller Lakes Trail and on all trails within the Skilak WRA and the Refuge Headquarters area. We did not make any changes to the rule in response to this comment.

    (22) Comment: Some commenters stated that amending Refuge regulations to allow for noncommercial collection of natural resources (berries, edible plants, shed antlers) is not necessary, as commercial harvest is already prohibited on Alaska refuges and recreational activities are authorized as long as they are compatible with Refuge purposes. The commenters recommended that these uses be addressed through a compatibility determination, as has been the done on other Alaska refuges. A commenter stated that daily and annual limits on the number of shed antlers that could be collected were unnecessary and overly restrictive.

    Our Response: Recreational activities, including but not limited to hunting, fishing, nature observation, photography, boating, camping, hiking, picnicking, and other related activities are generally authorized, if compatible (50 CFR 36.31(a)) on refuges in Alaska. This is a regulatory interpretation to implement apparent Congressional intent of ANILCA and often is referred to “Alaska Refuges are open unless closed.”

    However, 50 CFR part 36, the Alaska National Wildlife Refuge regulations, are supplemental to other National Wildlife Refuge System (NWRS) regulations. All other NWRS regulations also apply to Alaska refuges unless they are specifically modified or superseded by ANILCA (50 CFR 36.1(a)). ANILCA does not specifically address collection of natural resources. It does address sport hunting, trapping, fishing, commercial fishing, subsistence activities, and traditional means of access. The regulations at 50 CFR 27.51 prohibit the collecting of any plant or animal on any national wildlife refuge without a permit (the definition for animals, specifically fish and wildlife, includes any part of the animal (50 CFR 25.12(a))). 50 CFR 27.61 prohibits the unauthorized removal of natural objects from any national wildlife refuge.

    Legal sport hunting, fishing and trapping are not at issue in that they are authorized through licenses, permits, and established regulatory processes. Subsistence take of fish and wildlife is likewise authorized by statute and implementing regulations. Subsistence use of timber and plant material is generally authorized, subject to certain restrictions, at 50 CFR 36.15. 50 CFR 36.15(b) specifically allows for “the noncommercial gathering by local rural residents of fruits, berries, mushrooms, and other plant materials for subsistence uses, and the noncommercial gathering of dead or downed timber for firewood” without a permit. While many refuges in Alaska have determined personal gathering of berries and other natural resources to be compatible, recreational users are not afforded the same authorization under regulations for similar activities on refuges in Alaska (with the exception of firewood gathering by campers at Kenai NWR (50 CFR 36.39(i)(7)(i)(E)). The personal collection, without permit, of animal parts such as bones, skulls, horns, and antlers is also currently not authorized for any member of the public.

    Personal, noncommercial use of berries and other edible plant materials, and collection of naturally shed moose and caribou antlers, on some Alaska refuges are desired activities by many visitors. The Service has chosen to authorize this activity, subject to reasonable limitations for the collection of shed antlers, on the Kenai NWR under this rulemaking in recognition of the extent of recreational visitation and scope of this use on this Refuge. The Service may consider authorization of this use on other refuges in Alaska in the future. We did not make any changes to the rule in response to these comments.

    Russian River Special Management Area—50 CFR 36.39(i)(11)

    (23) Comment: One commenter opposed the proposed food storage requirements, which include required use of bear proof containers, citing high cost of such containers. Some commenters supported the proposed requirements as a means of reducing human-bear conflicts and due to the need for consistency between U.S. Forest Service and Refuge regulations in the Russian River area.

    Our Response: Food and retained fish storage regulations have been an integral component of interagency efforts to enhance public safety and wildlife resource conservation by managing wildlife attractants in order to reduce the potential for negative human-bear interactions in the Russian River Special Management Area. This rule codifies and makes permanent food and retained fish storage regulations issued by the Service as temporary restrictions in recent years, and provides consistency with U.S. Forest Service food storage regulations applying to adjacent Chugach National Forest lands (36 CFR 261.58). We did not make any changes to the rule in response to these comments.

    General Comments

    (24) Comment: One commenter stated that failure by the Service to announce the dates and locations of public meetings and hearings to be held, or of the Service's intention to hold the meetings and hearings, in the Federal Register may have unduly limited public engagement. The commenter further stated that the proposed rule does not meet the intent of ANILCA's implementing regulations and the Administrative Procedure Act (APA; 5 U.S.C. subchapter II), which specifically recognizes the importance of public meetings associated with rulemaking and of announcing those meetings in the Federal Register.

    Our Response: To meet regulatory requirements (50 CFR 36.42) for providing notice and public hearings for this rulemaking, the Service held two public hearings during the open public comment period. Hearings were held on June 17, 2016, in Soldotna, Alaska, and on June 18, 2016, in Anchorage, Alaska. The Service published announcements of the dates, locations, and times of scheduled public hearings to be held in Alaska on the proposed rule following the proposal's publication in the Federal Register on May 21, 2015 (80 FR 29277). Written notice of the dates, locations, and times of the public hearings were posted on the Refuge Web site immediately following publication of the proposed rule in the Federal Register, along with associated information on the proposed rule and its availability for public comment. The public meetings and hearings were also subsequently announced through news releases sent to local (Kenai Peninsula) and Statewide (Anchorage) media outlets including newspaper, radio, and television outlets, and through publication of Legal Notices, which published in local (Peninsula Clarion) and Statewide (Alaska Dispatch News) newspapers.

    Table—Summary of Changes From Proposed Rule What we proposed in the May 21, 2015, proposed rule (80 FR 29277) What we are making final in this final rule Aircraft We did not include a legal description of expanded Chickaloon Flats area We are adding a legal description of expanded Chickaloon Flats area. Boating We proposed that operation of motors with a total propshaft horsepower rating of greater than 10 horsepower would be prohibited on selected lakes We are not including that prohibition. Firearms Discharge We did not include language on discharge of firearms in defense of life and property We are adding language that the firearms discharge regulations do not preclude use of firearms for taking game in defense of life and property as defined under State law. Fishing We proposed that fishing would be prohibited from June 1 through August 15 during hours of operation of the Russian River Ferry along the south bank of the Kenai River from a point 100 feet upstream to a point 100 feet downstream of the ferry dock We are removing the dates from the statement. Camping We proposed that camping within 100 yards of the Upper Kenai River and the Middle Kenai River downstream of Skilak Lake (river mile 50 to river mile 45) would be restricted to designated sites We are retaining this restriction for the Upper Kenai River, but we are not including it for the Middle Kenai River. We have added information on the availability of a map denoting designated sites. Maximum Group Size on Canoe Routes We proposed to retain a requirement that the maximum group size on the canoe routes is 15 people Under this final rule, the Refuge Manager may authorize larger groups under the terms and conditions of a special use permit (FWS Form 3-1383-G). Leash Length in Campgrounds We proposed that pets in developed campgrounds and parking lots must be on a leash that is no longer than 6 feet in length We are adopting the current maximum leash length which requires that pets in developed campgrounds and parking lots be on a leash that is no longer than 9 feet in length. Plain Language Mandate

    In this rule, we made some of the revisions to comply with a Presidential mandate to use plain language in regulations; as such, these particular revisions do not modify the substance of the previous regulations. These types of changes include using “you” to refer to the reader and “we” to refer to the Refuge System, using the word “allow” instead of “permit” when we do not require the use of a permit for an activity, and using active voice (i.e., “We restrict entry into the refuge” vs. “Entry into the refuge is restricted”).

    Regulatory Planning and Review (Executive Orders 12866 and 13563)

    Executive Order 12866 provides that the Office of Information and Regulatory Affairs (OIRA) will review all significant rules. OIRA has determined that this rule is not significant.

    Executive Order 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. E.O. 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this rule in a manner consistent with these requirements.

    Regulatory Flexibility Act

    Under the Regulatory Flexibility Act (as amended by the Small Business Regulatory Enforcement Fairness Act [SBREFA] of 1996) (5 U.S.C. 601 et seq.), whenever a Federal agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effect of the rule on small entities (i.e., small businesses, small organizations, and small government jurisdictions). However, no regulatory flexibility analysis is required if the head of an agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Thus, for a regulatory flexibility analysis to be required, impacts must exceed a threshold for “significant impact” and a threshold for a “substantial number of small entities.” See 5 U.S.C. 605(b). SBREFA amended the Regulatory Flexibility Act to require Federal agencies to provide a statement of the factual basis for certifying that a rule will not have a significant economic impact on a substantial number of small entities.

    As described above and in the May 21, 2015, proposed rule (80 FR 29277), the changes in this rule will impact visitor use for wildlife-dependent recreation on the Refuge. Modifying the visitor use regulations will have small incremental changes on total visitor use days associated with particular activities. For example, visitor use associated with aircraft motorboats and collection of natural resources may increase slightly. However, visitor use associated with camping may decline slightly. We estimate that the overall change in recreation use-days will represent less than 1 percent of the average recreation use-days on the Refuge (1 million visitors annually).

    Small businesses within the retail trade industry (such as hotels, gas stations, etc.) (NAIC 44) and accommodation and food service establishments (NAIC 72) may be impacted by spending generated by Refuge visitation. Seventy-six percent of establishments in the Kenai Peninsula Borough qualify as small businesses. This statistic is similar for retail trade establishments (72 percent) and accommodation and food service establishments (65 percent). Due to the negligible change in average recreation days, this final rule will have a minimal effect on these small businesses.

    With the negligible change in overall visitation anticipated from this final rule, it is unlikely that a substantial number of small entities will have more than a small economic effect. Therefore, we certify that this final rule will not have a significant economic effect on a substantial number of small entities as defined under the Regulatory Flexibility Act. A regulatory flexibility analysis is not required. Accordingly, a Small Entity Compliance Guide is not required.

    Small Business Regulatory Enforcement Fairness Act

    This final rule is not a major rule under 5 U.S.C. 804(2), the SBREFA. This rule:

    a. Will not have an annual effect on the economy of $100 million or more.

    b. Will not cause a major increase in costs or prices for consumers; individual industries; federal, State, or local government agencies; or geographic regions.

    c. Will not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S. based enterprises to compete with foreign-based enterprises.

    Unfunded Mandates Reform Act

    As this rule applies to public use on a federally owned and managed Refuge, it will not impose an unfunded mandate on State, local, or Tribal governments or the private sector of more than $100 million per year. The rule will not have a significant or unique effect on State, local, or Tribal governments or the private sector. A statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq.) is not required.

    Takings (E.O. 12630)

    In accordance with E.O. 12630, this rule will not have significant takings implications. This rule affects only visitors at Kenai NWR and describes what they can do while on the Refuge.

    Federalism (E.O. 13132)

    As discussed in the Regulatory Planning and Review and Unfunded Mandates Reform Act sections, above, this rule will not have sufficient federalism summary impact statement implications to warrant the preparation of a federalism summary impact statement under E.O. 13132. In preparing this rule, we worked with State governments.

    Civil Justice Reform (Executive Order 12988)

    This final rule complies with the requirements of Executive Order 12988. Specifically, this rule:

    a. Meets the criteria of section 3(a) requiring that all regulations be reviewed to eliminate errors and ambiguity and be written to minimize litigation; and

    b. Meet criteria of section 3(b) (2) requiring that all regulations be written in clear language and contain clear legal standards.

    Energy Supply, Distribution or Use (E.O. 13211)

    On May 18, 2001, the President issued E.O. 13211 on regulations that significantly affect energy supply, distribution, or use. E.O. 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. This rule is not a significant regulatory action under E.O. 12866, and we do not expect it to significantly affect energy supplies, distribution, or use. Therefore, this action is not a significant energy action and no Statement of Energy Effects is required.

    Government-to-Government Relationship with Tribes

    In accordance with the President's memorandum of April 29, 1994 (Government-to-Government Relations with Native American Tribal Governments; 59 FR 22951 (May 4, 1994)), Executive Order 13175 (Consultation and Coordination with Indian Tribal Governments; 65 FR 67249 (November 9, 2000)), and the Department of the Interior Manual, 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with recognized Federal Tribes on a government-to-government basis. We also complied with 512 DM 4 under Department of the Interior Policy on Consultation with Alaska Native Claims Settlement Act (ANCSA) Corporations, August 10, 2012. We did seek Tribes' and Corporations' input in evaluating the proposed rule. In December 2014, we invited formal consultation in writing to seven Tribes and seven Native Corporations and asked for their input during development of the proposed rule. Concurrently, we provided information on the proposed rule and offered to meet informally to provide additional information. We also sent written correspondence via email to the Tribes and Native Corporations prior to publication of the proposed rule in May 2015, to again offer opportunity for formal consultation and/or informal information exchange, to request input, and to provide notice of the proposal's upcoming publication and the public comment period. We did not receive any requests for government-to-government consultation. We informally discussed the proposed rule as part of meetings with representatives of the Ninilchik Traditional Council and Ninilchik Native Association held primarily to discuss subsistence hunting and fishing on the Refuge, and corresponded via telephone and email with representatives of the Tyonek Native Corporation who had specific questions on the proposed rule.

    Paperwork Reduction Act

    This rule does not contain any information collection requirements other than those already approved by the Office of Management and Budget (OMB) under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.) and assigned OMB Control Numbers 1018-0102 (expires June 30, 2017), 1018-0140 (expires May 31, 2018), and 1018-0153 (expires December 31, 2018). 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.

    Endangered Species Act Section 7 Consultation

    We complied with section 7 of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.), when we developed the Kenai NWR comprehensive conservation plan.

    National Environmental Policy Act

    We analyzed this rule in accordance with the criteria of the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4332(C)), 43 CFR part 46, and 516 Departmental Manual (DM) 8.

    A categorical exclusion from NEPA documentation applies to publication of this final rule and ensuing regulations because they are technical and procedural in nature, and the environmental effects are too broad, speculative, or conjectural to lend themselves to meaningful analysis (43 CFR 46.210 and 516 DM 8). We have determined that this final rule is considered a categorical exclusion under 516 DM 8.5(C)(3), which categorically excludes the “issuance of special regulations for public use of Service-managed land, which maintain essentially the permitted level of use and do not continue a level of use that has resulted in adverse environmental impacts.”

    This final rule supports the Service's management direction identified through approved Refuge management plans, including the 2010 Kenai NWR revised CCP and the 2007 Kenai NWR Skilak WRA revised final management plan.

    For the CCP, we prepared a draft revised CCP and a draft environmental impact statement (DEIS) under NEPA, and made them available for comment for public comment on May 8, 2008 (73 FR 26140). The public comment period on those draft documents began on May 8, 2008, and ended on September 1, 2008. We then prepared our final revised CCP and final EIS, and made them available for public comment for 30 days, beginning August 27, 2009 (74 FR 43718). We announced the availability of the record of decision for the final revised CCP and final EIS on January 11, 2010 (75 FR 1404).

    We completed a draft management plan and draft environmental assessment (EA) under NEPA for the Skilak WRA management plan in October 2006. We distributed approximately 2,500 copies to individuals, businesses, agencies, and organizations that had expressed an interest in receiving Kenai NWR planning-related documents. We also announced the availability of these documents through radio stations, television stations, and newspapers on the Kenai Peninsula and in the city of Anchorage. An electronic version of the plan was made available on the Kenai NWR planning Web site, and a Skilak email address was created to facilitate public comment on the draft plan. Presentations were made to the Alaska Board of Game and the Friends of Alaska National Wildlife Refuges. The draft plan and draft environmental assessment (EA) were made available for public review and comment during a 30-day period ending November 17, 2006. We signed a finding of no significant impact (FONSI) for the final revised management plan first on December 6, 2006, and then later (as corrected) on May 11, 2007.

    You can obtain copies of the CCP/EIS and the revised final management plan for the Skilak WRA either on the Federal eRulemaking Portal, http://www.regulations.gov, under Docket No. FWS-R7-NWRS-2014-0003, or by contacting the person listed under FOR FURTHER INFORMATION CONTACT.

    Primary Author

    Andy Loranger, Refuge Manager, Kenai NWR, is the primary author of this rulemaking document.

    List of Subjects in 50 CFR Part 36

    Alaska, Recreation and recreation areas, Reporting and recordkeeping requirements, Wildlife refuges.

    Regulation Promulgation

    For the reasons set forth in the preamble, we amend 50 CFR part 36 as follows:

    PART 36—ALASKA NATIONAL WILDLIFE REFUGES 1. The authority citation for part 36 continues to read as follows: Authority:

    16 U.S.C. 460(k) et seq., 668dd-668ee, 3101 et seq.

    2. Amend § 36.2 by adding, in alphabetical order, definitions for “Operate” and “Structure” to read as follows:
    § 36.2 What do these terms mean?

    Operate means to manipulate the controls of any conveyance, such as, but not limited to, an aircraft, snowmobile, motorboat, off-road vehicle, or any other motorized or non-motorized form of vehicular transport as to direct its travel, motion, or purpose.

    Structure means something temporarily or permanently constructed, built, or placed; and constructed of natural or manufactured parts including, but not limited to, a building, shed, cabin, porch, bridge, walkway, stair steps, sign, landing, platform, dock, rack, fence, telecommunication device, antennae, fish cleaning table, satellite dish/mount, or well head.

    3. Amend § 36.39 by revising paragraph (i) to read as follows:
    § 36.39 Public use.

    (i) Kenai National Wildlife Refuge. Maps of designated areas open to specific public use activities on the refuge are available from Refuge Headquarters at the following address: 1 Ski Hill Road, Soldotna, AK.

    (1) Aircraft. Except in an emergency, the operation of aircraft on the Kenai National Wildlife Refuge is authorized only in designated areas, as described in this paragraph (i)(1).

    (i) We allow the operation of airplanes within the Kenai Wilderness on the following designated lakes, and under the restrictions noted:

    (A) Dave Spencer (Canoe Lakes) Unit. (1) Bedlam Lake.

    (2) Bird Lake.

    (3) Cook Lake.

    (4) Grouse Lake.

    (5) King Lake.

    (6) Mull Lake.

    (7) Nekutak Lake.

    (8) Norak Lake.

    (9) Sandpiper Lake.

    (10) Scenic Lake.

    (11) Shoepac Lake.

    (12) Snowshoe Lake.

    (13) Taiga Lake.

    (14) Tangerra Lake.

    (15) Vogel Lake.

    (16) Wilderness Lake.

    (17) Pepper, Gene, and Swanson lakes are open to operation of airplanes only to provide access for ice fishing.

    (B) Andrew Simons Unit.

    (1) Emerald Lake.

    (2) Green Lake.

    (3) Harvey Lake.

    (4) High Lake.

    (5) Iceberg Lake.

    (6) Kolomin Lakes.

    (7) Lower Russian Lake.

    (8) Martin Lake.

    (9) Pothole Lake.

    (10) Twin Lakes.

    (11) Upper Russian Lake.

    (12) Windy Lake.

    (13) Dinglestadt Glacier terminus lake.

    (14) Wosnesenski Glacier terminus lake.

    (15) Tustumena Lake and all lakes within the Kenai Wilderness within 1 mile of the shoreline of Tustumena Lake.

    (16) All unnamed lakes in sections 1 and 2, T. 1 S., R. 10 W., and sections 4, 5, 8, and 9, T. 1 S., R. 9 W., Seward Meridian.

    (17) An unnamed lake in sections 28 and 29, T. 2 N., R. 4 W., Seward Meridian: The Refuge Manager may issue a special use permit (FWS Form 3-1383-G) for the operation of airplanes on this lake to successful applicants for certain State of Alaska, limited-entry, drawing permit hunts. Successful applicants should contact the Refuge Manager to request information.

    (C) Mystery Creek Unit. An unnamed lake in section 11, T. 6 N., R. 5 W., Seward Meridian.

    (ii) We allow the operation of airplanes on all lakes outside of the Kenai Wilderness, except that we prohibit aircraft operation on:

    (A) The following lakes with recreational developments, including, but not limited to, campgrounds, campsites, and public hiking trails connected to road waysides, north of the Sterling Highway:

    (1) Afonasi Lake.

    (2) Anertz Lake.

    (3) Breeze Lake.

    (4) Cashka Lake.

    (5) Dabbler Lake.

    (6) Dolly Varden Lake.

    (7) Forest Lake.

    (8) Imeri Lake.

    (9) Lili Lake.

    (10) Mosquito Lake.

    (11) Nest Lake.

    (12) Rainbow Lake.

    (13) Silver Lake.

    (14) Upper Jean Lake.

    (15) Watson Lake.

    (16) Weed Lake.

    (B) All lakes within the Skilak Wildlife Recreation Area (south of Sterling Highway and north of Skilak Lake), except for Bottenintnin Lake (open to airplanes year-round) and Hidden Lake (open to airplanes only to provide access for ice fishing).

    (C) Headquarters Lake (south of Soldotna), except for administrative purposes. You must request permission from the Refuge Manager.

    (iii) Notwithstanding any other provisions of this part, we prohibit the operation of aircraft from May 1 through September 10 on any lake where nesting trumpeter swans or their broods or both are present.

    (iv) We prohibit the operation of wheeled airplanes, with the following exceptions:

    (A) We allow the operation of wheeled airplanes, at the pilot's risk, on the unmaintained Big Indian Creek Airstrip; on gravel areas within 1/2 mile of Wosnesenski Glacier terminus lake; and within the SE1/4, section 16 and SW1/4, section 15, T. 4 S., R. 8 W., Seward Meridian.

    (B) We allow the operation of wheeled airplanes, at the pilot's risk, within designated areas of the Chickaloon River Flats, including all of sections 5 and 6 and parts of sections 2, 3, 4, 7, 8, 9, 11, and 16, T. 9 N., R. 4 W.; all of section 1 and parts of sections 2, 3, 4, 5, 11, and 12, T. 9 N., R. 5 W.; all of sections 33 and 34 and parts of sections 24, 25, 26, 27, 28, 29, 31, 32, and 35, T. 10 N., R. 4 W.; all of section 33 and parts of sections 19, 27, 28 29, 30 32, 34, 35, and 36, T. 10 N., R. 5 W, Seward Meridian.

    (v) We allow the operation of airplanes on the Kasilof River, on the Chickaloon River (from the outlet to mile 6.5), and on the Kenai River below Skilak Lake (from June 15 through March 14). We prohibit aircraft operation on all other rivers on the refuge.

    (vi) We prohibit the operation of unlicensed aircraft anywhere on the refuge except as authorized under terms and conditions of a special use permit (FWS Form 3-1383-G) issued by the Refuge Manager.

    (vii) We prohibit air dropping any items within the Kenai Wilderness except as authorized under terms and conditions of a special use permit (FWS Form 3-1383-G) issued by the Refuge Manager.

    (2) Motorboats. (i) We allow motorboat operation on all waters of the refuge, except that:

    (A) We prohibit motorboat operation within the Dave Spencer (Canoe Lakes) Unit of the Kenai Wilderness, including those portions of the Moose and Swanson rivers within this Unit, except that we allow motorboat operation on those lakes designated for airplane operations as provided in paragraph (i)(1) of this section and shown on a map available from Refuge Headquarters.

    (B) We prohibit motorboat operation on the Kenai River from the eastern refuge boundary near Sportsmans Landing and the confluence of the Russian River downstream to Skilak Lake. You may have a motor attached to your boat and drift or row through this section, provided the motor is not operating.

    (C) We prohibit motorboat operation on the Kenai River from the outlet of Skilak Lake (river mile 50) downstream for approximately 3 miles (river mile 47) between March 15 and June 14, inclusive. You may have a motor attached to your boat and drift or row through this section, provided the motor is not operating.

    (D) We prohibit the operation of motors with a total propshaft horsepower rating greater than 10 horsepower on the Moose, Swanson, Funny, Chickaloon (upstream of river mile 7.5), Killey, and Fox rivers.

    (E) On the Kenai River downstream of Skilak Lake (river mile 50) to the refuge boundary (river mile 45.5), we restrict motorboat operation to only those motorboats with 4-stroke or direct fuel injection motors with a total propshaft horsepower rating of 50 horsepower or less, and that are up to 21 feet in length and up to 106 inches in width. On Skilak Lake, we restrict motorboat operation to only those motorboats with 4-stroke or direct fuel injection motors.

    (F) A “no wake” restriction applies to the entire water body of Engineer, Upper and Lower Ohmer, Bottenintnin, Upper and Lower Jean, Kelly, Petersen, Watson, Imeri, Afonasi, Dolly Varden, and Rainbow lakes.

    (ii) Notwithstanding any other provisions of these regulations, we prohibit the operation of motorboats from May 1 through September 10 on any lake where nesting trumpeter swans or their broods or both are present.

    (3) Off-road vehicles. (i) We prohibit the operation of all off-road vehicles, as defined at § 36.2, except that four-wheel drive, licensed, and registered motor vehicles designed and legal for highway use may operate on designated roads, rights-of-way, and parking areas open to public vehicular access. This prohibition applies to off-road vehicle operation on lake and river ice. At the operator's risk, we allow licensed and registered motor vehicles designed and legal for highway use on Hidden, Engineer, Kelly, Petersen, and Watson lakes only to provide access for ice fishing. You must enter and exit the lakes via existing boat ramps.

    (ii) We prohibit the operation of air cushion watercraft, air-thrust boats, jet skis and other personal watercraft, and all other motorized watercraft except motorboats.

    (iii) The Refuge Manager may issue a special use permit (FWS Form 3-1383-G) for the operation of specialized off-road vehicles and watercraft for certain administrative activities (to include fish and wildlife-related monitoring, vegetation management, and infrastructure maintenance in permitted rights-of-way).

    (4) Snowmobiles. We allow the operation of snowmobiles only in designated areas and only under the following conditions:

    (i) We allow the operation of snowmobiles from December 1 through April 30 only when the Refuge Manager determines that there is adequate snow cover to protect underlying vegetation and soils. During this time, the Refuge Manager will authorize, through public notice (a combination of any or all of the following: Internet, newspaper, radio, and/or signs), the use of snowmobiles less than 48 inches in width and less than 1,000 pounds (450 kg) in weight.

    (ii) We prohibit snowmobile operation:

    (A) In all areas above timberline, except the Caribou Hills.

    (B) In an area within sections 5, 6, 7, and 8, T. 4 N., R. 10 W., Seward Meridian, east of the Sterling Highway right-of-way, including the Refuge Headquarters complex, the environmental education/cross-country ski trails, Headquarters and Nordic lakes, and the area north of the east fork of Slikok Creek and northwest of a prominent seismic trail to Funny River Road.

    (C) In an area including the Swanson River Canoe Route and portages, beginning at the Paddle Lake parking area, then west and north along the Canoe Lakes wilderness boundary to the Swanson River, continuing northeast along the river to Wild Lake Creek, then east to the west shore of Shoepac Lake, south to the east shore of Antler Lake, and west to the beginning point near Paddle Lake.

    (D) In an area including the Swan Lake Canoe Route and several road-connected public recreational lakes, bounded on the west by the Swanson River Road, on the north by the Swan Lake Road, on the east by a line from the east end of Swan Lake Road south to the west bank of the Moose River, and on the south by the refuge boundary.

    (E) In the Skilak Wildlife Recreation Area, except on Hidden, Kelly, Petersen, and Engineer lakes only to provide access for ice fishing. You must enter and exit these lakes via the existing boat ramps and operate exclusively on the lakes. Within the Skilak Wildlife Recreation Area, only Upper and Lower Skilak Lake campground boat launches may be used as access points for snowmobile use on Skilak Lake.

    (F) On maintained roads within the refuge. Snowmobiles may cross a maintained road after stopping.

    (G) For racing, or to herd, harass, haze, pursue, or drive wildlife.

    (5) Hunting and trapping. We allow hunting and trapping on the refuge in accordance with State and Federal laws and consistent with the following provisions:

    (i) You may not discharge a firearm within 1/4 mile of designated public campgrounds, trailheads, waysides, buildings including public use cabins, or the Sterling Highway from the east Refuge boundary to the east junction of the Skilak Loop Road. You may not discharge a firearm within 1/4 mile of the west shoreline of the Russian River from the upstream extent of the Russian River Falls downstream to its confluence with the Kenai River, and from the shorelines of the Kenai River from the east refuge boundary downstream to Skilak Lake and from the outlet of Skilak Lake downstream to the refuge boundary, except that firearms may be used in these areas to dispatch animals while lawfully trapping and shotguns may be used for waterfowl and small game hunting along the Kenai River. These firearms discharge regulations do not preclude use of firearms for taking game in defense of life and property as defined under State law.

    (ii) We prohibit hunting over bait, with the exception of hunting for black bear, and then only as authorized under the terms and conditions of a special use permit (FWS Form 3-1383-G) issued by the Refuge Manager.

    (iii) We prohibit hunting big game with the aid or use of a dog, with the exception of hunting for black bear, and then only as authorized under the terms and conditions of a special use permit (FWS Form 3-1383-G) issued by the Refuge Manager.

    (iv) We prohibit hunting and trapping within sections 5, 6, 7, and 8, T. 4 N., R. 10 W., Seward Meridian, encompassing the Kenai Refuge Headquarters, Environmental Education Center, Visitor Center Complex, and associated public use trails. A map of closure areas is available at Refuge Headquarters.

    (v) The additional provisions for hunting and trapping within the Skilak Wildlife Recreation Area are set forth in paragraph (i)(6) of this section.

    (6) Hunting and trapping within the Skilak Wildlife Recreation Area. (i) The Skilak Wildlife Recreation Area is bound by a line beginning at the easternmost junction of the Sterling Highway and the Skilak Loop Road (Mile 58), then due south to the south bank of the Kenai River, then southerly along the south bank of the Kenai River to its confluence with Skilak Lake, then westerly along the north shore of Skilak Lake to Lower Skilak Campground, then northerly along the Lower Skilak campground road and the Skilak Loop Road to its westernmost junction with the Sterling Highway (Mile 75.1), then easterly along the Sterling Highway to the point of origin.

    (ii) The Skilak Wildlife Recreation Area (Skilak Loop Management Area) is closed to hunting and trapping, except as provided in paragraphs (i)(6)(iii) and (iv) of this section.

    (iii) You may hunt moose only with a permit issued by the Alaska Department of Fish and Game and in accordance with the provisions set forth in paragraph (i)(5) of this section.

    (iv) You may hunt small game in accordance with the provisions set forth in paragraph (i)(5) of this section and:

    (A) Using falconry and bow and arrow only from October 1 through March 1; or

    (B) If you are a youth hunter 16 years old or younger, who is accompanied by a licensed hunter 18 years old or older who has successfully completed a certified hunter education course (if the youth hunter has not), or by someone born on or before January 1, 1986. Youth hunters must use standard .22 rimfire or shotgun, and may hunt only in that portion of the area west of a line from the access road from the Sterling Highway to Kelly Lake, the Seven Lakes Trail, and the access road from Engineer Lake to Skilak Lake Road, and north of the Skilak Lake Road. The youth hunt occurs during each weekend from November 1 to December 31, including the Friday following Thanksgiving. State of Alaska bag limit regulations apply.

    (7) Fishing. We allow fishing on the refuge in accordance with State and Federal laws, and consistent with the following provisions:

    (i) We prohibit fishing during hours of operation of the Russian River Ferry along the south bank of the Kenai River from a point 100 feet upstream to a point 100 feet downstream of the ferry dock.

    (ii) Designated areas along the Kenai River at the two Moose Range Meadows public fishing facilities along Keystone Drive are closed to public access and use. At these facilities, we allow fishing only from the fishing platforms and by wading in the Kenai River. To access the river, you must enter and exit from the stairways attached to the fishing platforms. We prohibit fishing from, walking or placing belongings on, or otherwise occupying designated areas along the river in these areas.

    (8) Public use cabin and camping area management. We allow camping and use of public use cabins on the refuge in accordance with the following conditions:

    (i) Unless otherwise further restricted, camping may not exceed 14 days in any 30-day period anywhere on the refuge.

    (ii) Campers may not spend more than 7 consecutive days at Hidden Lake Campground or in public use cabins.

    (iii) The Refuge Manager may establish a fee and registration permit system for overnight camping at designated campgrounds and public use cabins. At all of the refuge's fee-based campgrounds and public use cabins, you must pay the fee in full prior to occupancy. No person may attempt to reserve a refuge campsite by placing a placard, sign, or any item of personal property on a campsite. Reservations and a cabin permit are required for public use cabins, with the exception of the Emma Lake and Trapper Joe cabins, which are available on a first-come, first-served basis. Information on the refuge's public use cabin program is available from Refuge Headquarters and online at http://www.recreation.gov.

    (iv) Campers in developed campgrounds and public use cabins must follow all posted campground and cabin occupancy rules.

    (v) You must observe quiet hours from 11:00 p.m. until 7:00 a.m. in all developed campgrounds, parking areas, and public use cabins.

    (vi) Within developed campgrounds, we allow camping only in designated sites.

    (vii) Campfires. (A) Within developed campgrounds, we allow open fires only in portable, self-contained, metal fire grills, or in the permanent fire grates provided. We prohibit moving a permanent fire grill or grate to a new location.

    (B) Campers and occupants of public use cabins may cut only dead and down vegetation for campfire use.

    (C) You must completely extinguish (put out cold) all campfires before permanently leaving a campsite.

    (viii) While occupying designated campgrounds, parking areas, or public use cabins, all food (including lawfully retained fish, wildlife, or their parts), beverages, personal hygiene items, odiferous refuse, or any other item that may attract bears or other wildlife, and all equipment used to transport, store, or cook these items (such as coolers, backpacks, camp stoves, and grills) must be:

    (A) Locked in a hard-sided vehicle, camper, or camp trailer; in a cabin; or in a commercially produced and certified bear-resistant container; or

    (B) Immediately accessible to at least one person who is outside and attending to the items.

    (ix) We prohibit deposition of solid human waste within 100 feet of annual mean high water level of any wetland, lake, pond, spring, river, stream, campsite, or trail. In the Swan Lake and Swanson River Canoe Systems, you must bury solid human waste to a depth of 6 to 8 inches.

    (x) We prohibit tent camping within 600 feet of each public use cabin, except by members and guests of the party registered to that cabin.

    (xi) Within 100 yards of the Kenai River banks along the Upper Kenai River from river mile 73 to its confluence with Skilak Lake (river mile 65), we allow camping only at designated primitive campsites. Campers can spend no more than 3 consecutive nights at the designated primitive campsites.

    (xii) We prohibit camping in the following areas of the refuge:

    (A) Within 1/4 mile of the Sterling Highway, Ski Hill, or Skilak Loop roads, except in designated campgrounds.

    (B) On the two islands in the lower Kenai River between mile 25.1 and mile 28.1 adjacent to the Moose Range Meadows Subdivision.

    (C) At the two refuge public fishing facilities and the boat launching facility along Keystone Drive within the Moose Range Meadows Subdivision, including within parking areas, and on trails, fishing platforms, and associated refuge lands.

    (9) Other uses and activities—(i) Must I register to canoe on the refuge? Canoeists on the Swanson River and Swan Lake Canoe Routes must register at entrance points using the registration forms provided. The maximum group size on the Canoe Routes is 15 people. The Refuge Manager may authorize larger groups under the terms and conditions of a special use permit (FWS Form 3-1383-G).

    (ii) May I use motorized equipment within designated Wilderness areas on the refuge? Within the Kenai Wilderness, except as provided in this paragraph (i), we prohibit the use of motorized equipment, including, but not limited to, chainsaws; generators; power tools; powered ice augers; and electric, gas, or diesel power units. We allow the use of motorized wheelchairs, when used by those whose disabilities require wheelchairs for locomotion. We allow the use of snowmobiles, airplanes, and motorboats in designated areas in accordance with the regulations in this paragraph (i).

    (iii) May I use non-motorized wheeled vehicles on the refuge? Yes, you may use bicycles and other non-motorized wheeled vehicles, but only on refuge roads and rights-of-way designated for public vehicular access. In addition, you may use non-motorized, hand-operated, wheeled game carts, specifically manufactured for such purpose, to transport meat of legally harvested big game on designated industrial roads closed to public vehicular access. Information on these designated roads is available from Refuge Headquarters. Further, you may use a wheelchair if you have a disability that requires its use for locomotion.

    (iv) May I ride or use horses, mules, or other domestic animals as packstock on the refuge? Yes, as authorized under State law, except on the Fuller Lakes Trail and on all trails within the Skilak Wildlife Recreation Area and the Refuge Headquarters area. All animals used as packstock must remain in the immediate control of the owner, or his/her designee. All hay and feed used on the refuge for domestic stock and sled dogs must be certified under the State of Alaska's Weed Free Forage certification program.

    (v) Are pets allowed on the refuge? Yes, pets are allowed, but you must be in control of your pet(s) at all times. Pets in developed campgrounds and parking lots must be on a leash that is no longer than 9 feet in length. Pets are not allowed on hiking and ski trails in the Refuge Headquarters area.

    (vi) May I cut firewood on the refuge? The Refuge Manager may open designated areas of the refuge for firewood cutting. You may cut and/or remove firewood only for personal, noncommercial use, and only as authorized under the terms and conditions of a special use permit (FWS Form 3-1383-G) issued by the Refuge Manager.

    (vii) May I cut Christmas trees on the refuge? You may cut one spruce tree per household per year no larger than 20 feet in height from Thanksgiving through Christmas Day. Trees may be taken anywhere on the refuge, except that we prohibit taking trees from within the 2-square-mile Refuge Headquarters area on Ski Hill Road. Trees must be harvested with hand tools, and must be at least 150 feet from roads, trails, campgrounds, picnic areas, and waterways (lakes, rivers, streams, or ponds). Stumps from harvested trees must be trimmed to less than 6 inches in height.

    (viii) May I pick berries and other edible plants on the refuge? You may pick and possess unlimited quantities of berries, mushrooms, and other edible plants for personal, noncommercial use.

    (ix) May I collect shed antlers on the refuge? You may collect and keep up to eight (8) naturally shed moose and/or caribou antlers annually for personal, noncommercial use. You may collect no more than two (2) shed antlers per day.

    (x) May I leave personal property on the refuge? You may not leave personal property unattended longer than 72 hours unless in a designated area or as authorized under the terms and conditions of a special use permit (FWS Form 3-1383-G) issued by the Refuge Manager. However, refuge visitors involved in approved, extended overnight activities, including hunting, fishing, and camping, may leave personal property unattended during their continuous stay, but in no case longer than 14 days.

    (xi) If I find research marking devices, what do I do? You must return any radio transmitter collars, neck and leg bands, ear tags, or other fish and wildlife marking devices found or recovered from fish and wildlife on the refuge within 5 days of leaving the refuge to the Refuge Manager or the Alaska Department of Fish and Game.

    (xii) Are there special regulations for alcoholic beverages? In addition to the provisions of 50 CFR 27.81, anyone under the age of 21 years may not knowingly consume, possess, or control alcoholic beverages on the refuge in violation of State of Alaska law or regulations.

    (xiii) Are there special regulations for public gatherings on the refuge? In addition to the provisions of 50 CFR 26.36, a special use permit (FWS Form 3-1383-G) is required for any outdoor public gathering of more than 20 persons.

    (10) Areas of the refuge closed to public use. (i) From March 15 through September 30, you may not approach within 100 yards of, or walk on or otherwise occupy, the rock outcrop islands in Skilak Lake traditionally used by nesting cormorants and gulls. A map depicting the closure is available from the Refuge Headquarters.

    (ii) Headquarters Lake, adjacent to the Kenai Refuge Headquarters area, is closed to boating.

    (11) Area-specific regulations for the Russian River Special Management Area. The Russian River Special Management Area includes all refuge lands and waters within 1/4 mile of the eastern refuge boundary along the Russian River from the upstream end of the fish ladder at Russian River Falls downstream to the confluence with the Kenai River, and within 1/4 mile of the Kenai River from the eastern refuge boundary downstream to the upstream side of the powerline crossing at river mile 73, and areas managed by the refuge under memorandum of understanding or lease agreement at the Sportsman Landing facility. In the Russian River Special Management Area:

    (i) While recreating on or along the Russian and Kenai rivers, you must closely attend or acceptably store all attractants, and all equipment used to transport attractants (such as backpacks and coolers) at all times. Attractants are any substance, natural or manmade, including but not limited to, items of food, beverage, personal hygiene, or odiferous refuse that may draw, entice, or otherwise cause a bear or other wildlife to approach. Closely attend means to retain on the person or within the person's immediate control and in no case more than 3 feet from the person. Acceptably store means to lock within a commercially produced and certified bear-resistant container.

    (ii) While recreating on or along the Russian and Kenai rivers, you must closely attend or acceptably store all lawfully retained fish at all times. Closely attend means to keep within view of the person and be near enough for the person to quickly retrieve, and in no case more than 12 feet from the person. Acceptably store means to lock within a commercially produced and certified bear-resistant container.

    (iii) We prohibit overnight camping except in designated camping facilities at the Russian River Ferry and Sportsman's Landing parking areas. Campers may not spend more than 2 consecutive days at these designated camping facilities.

    (iv) You may start or maintain a fire only in designated camping facilities at the Russian River Ferry and Sportsman's Landing parking areas, and then only in portable, self-contained, metal fire grills, or in the permanent fire grates provided. We prohibit moving a permanent fire grill or grate to a new location. You must completely extinguish (put out cold) all campfires before permanently leaving your campsite.

    (12) Area-specific regulations for the Moose Range Meadows Subdivision non-development and public use easements. (i) Where the refuge administers two variable width, non-development easements held by the United States and overlaying private lands within the Moose Range Meadows Subdivision on either shore of the Kenai River between river miles 25.1 and 28.1, you may not erect any building or structure of any kind; remove or disturb gravel, topsoil, peat, or organic material; remove or disturb any tree, shrub, or plant material of any kind; start a fire; or use a motorized vehicle of any kind (except a wheelchair occupied by a person with a disability), unless such use is authorized under the terms and conditions of a special use permit (FWS Form 3-1383-G) issued by the Refuge Manager.

    (ii) Where the refuge administers two 25-foot-wide public use easements held by the United States and overlaying private lands within the Moose Range Meadows Subdivision on either shore of the Kenai River between river miles 25.1 and 28.1, we allow public entry subject to applicable Federal regulations and the following provisions:

    (A) You may walk upon or along, fish from, or launch or beach a boat upon an area 25 feet upland of ordinary high water, provided that no vehicles (except wheelchairs) are used. We prohibit non-emergency camping, structure construction, and brush or tree cutting within the easements.

    (B) From July 1 to August 15, you may not use or access any portion of the 25-foot-wide public easements or the three designated public easement trails located parallel to the Homer Electric Association Right-of-Way from Funny River Road and Keystone Drive to the downstream limits of the public use easements. Maps depicting the seasonal closure are available from Refuge Headquarters.

    (13) Area-specific regulations for Alaska Native Claims Settlement Act Section 17(b) easements. Where the refuge administers Alaska Native Claims Settlement Act Section 17(b) easements to provide access to refuge lands, no person may block, alter, or destroy any section of the road, trail, or undeveloped easement, unless such use is authorized under the terms and conditions of a special use permit (FWS Form 3-1383-G) issued by the Refuge Manager. No person may interfere with lawful use of the easement or create a public safety hazard on the easement. Section 17(b) easements are depicted on a map available from Refuge Headquarters.

    Dated: April 12, 2016. Michael Bean, Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
    [FR Doc. 2016-10288 Filed 5-4-16; 8:45 am] BILLING CODE 4333-15-P
    81 87 Thursday, May 5, 2016 Proposed Rules OFFICE OF SPECIAL COUNSEL 5 CFR Part 1820 Revision of Regulations Governing Freedom of Information Act Requests and Appeals, and Revision of Touhy Regulations Governing Release of Information in Response to Legal Proceedings AGENCY:

    U.S. Office of Special Counsel.

    ACTION:

    Notice of proposed rulemaking.

    SUMMARY:

    The U.S. Office of Special Counsel (OSC) seeks public comment on a proposed rule that would update and clarify the procedures for submitting Freedom of Information Act (FOIA) requests and appeals, and would modify the manner in which FOIA requests qualify for expedited processing at OSC. The proposed rule would describe additional methods for submitting FOIA requests and appeals. It would also promote efficiency in FOIA administration by enhancing OSC's ability to respond to certain requests on an expedited basis. The proposed rule makes minor technical revisions to the name of an OSC unit and to OSC's Internet and physical address information.

    OSC also seeks public comment on a proposed rule that would establish procedures that requesters must follow when making demands on or requests to an OSC employee to produce official records or provide testimony relating to official information in connection with a legal proceeding in which the OSC is not a party. The proposed rule would also establish procedures to respond to such demands and requests in an orderly and consistent manner. The proposed rule will promote uniformity in decisions, protect confidential information, provide guidance to requesters, and reduce the potential for both inappropriate disclosures of official information and wasteful allocation of agency resources.

    DATES:

    Written or electronic comments must be received on or before July 5, 2016.

    ADDRESSES:

    You may submit comments by any of the following methods:

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

    Email: [email protected] Include “FOIA/Touhy Regulation” in the subject line of the message.

    Fax: (202) 254-3711.

    Mail: U.S. Office of Special Counsel, Office of General Counsel, 1730 M Street NW., Suite 218, Washington, DC 20036.

    Hand Delivery/Courier: U.S. Office of Special Counsel, Office of General Counsel, 1730 M Street NW., Suite 218, Washington, DC 20036.

    FOR FURTHER INFORMATION CONTACT:

    Amy Beckett, Senior Litigation Counsel, U.S. Office of Special Counsel, by telephone at (202) 254-3600, by facsimile at (202) 254-3711, or by email at [email protected]

    SUPPLEMENTARY INFORMATION:

    I. Background

    FOIA Regulations. The U.S. Office of Special Counsel (OSC) proposes to revise its FOIA regulations to account for the additional electronic methods by which requesters may submit FOIA requests and appeals, and to modify the manner by which requests qualify for expedited processing. OSC also proposes to make minor technical revisions to the name of an OSC unit and to OSC's Internet and physical address information.

    The existing language of 5 CFR 1820.2 and 1820.6 describes regular mail and fax as the methods by which to submit FOIA requests and appeals. The proposed rule would add email or other electronic submission methods.

    The existing language of 5 CFR 1820.1 refers to the main OSC Internet and FOIA page addresses. The proposed rule would describe Internet access to OSC FOIA resources through the main OSC Internet address. The existing language of 5 CFR 1820.2 and 1820.6 regarding OSC's physical address would be modified in a minor, technical manner. The existing language of 5 CFR 1820.6 refers to an OSC unit as the “Legal Counsel and Policy Division.” The name of that unit would be updated in the proposed rule to the “Office of General Counsel.”

    The existing language of 5 CFR 1820.4(c)(1)(iii) discusses one of the three criteria under which a FOIA request can be processed out of order of receipt and addressed on an expedited basis. That language provides, in part, expedited treatment of a FOIA request when the requested records relate to “an appeal that is pending before, or that the requester faces an imminent deadline for filing with” another administrative or judicial tribunal, “seeking personal relief pursuant to a complaint filed by the requester with OSC, or referred to OSC pursuant to title 38 of the U.S. Code.”

    The proposed rule would clarify that the criteria discussed at 5 CFR 1820.4(c)(1)(iii) applies only when the requested records relate to an appeal for which the requester faces an imminent deadline for filing with another administrative or judicial tribunal. In addition, the proposed rule would specify that a grant of expedited treatment would apply only to the following requested records: Letters sent to a complainant by OSC; and the official complaint form submitted to OSC by the complainant or the original referred complaint if referred to OSC pursuant to title 38 of the U.S. Code. All other requested records would be processed according to the order in which OSC received the request.

    By narrowing the focus of expedited status to certain records that are of interest to complainant-requesters, and are typically readily available for disclosure to the complainant-requesters, OSC will be able to more efficiently process and respond to expedited requests. Any other requested records would generally be processed in the order OSC received the request.

    Touhy Regulations. OSC also proposes to revise its regulations relating to the release of information in response to requests made in connection with legal proceedings, such as summonses, complaints, subpoenas, and other litigation-related requests or demands for OSC's records or official information. These regulations are often referred to as Touhy regulations.

    Federal agencies often receive demands consisting of informal requests for production of records, information, or testimony in judicial, legislative, or administrative proceedings in which the agency is not a named party. OSC has identified a need to revise its regulation to improve its evaluation and processing of such requests.

    The United States Supreme Court upheld this type of regulation in United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951), holding that provisions in the federal “housekeeping” statute authorize agencies to promulgate rules governing record production and employee testimony. See 5 U.S.C. 301.

    The existing language of 5 CFR 1820.10 refers to the “[p]roduction of official records or testimony in legal proceedings.” This revision provides the agency with more clearly delineated standards for releasing information or witness testimony. Generally, this revision re-establishes that no OSC employee or former employee shall release official information or records without the prior approval of the Special Counsel or the Special Counsel's duly authorized designee.

    Under this proposed rule, OSC establishes procedural requirements for the form and content of requests for official OSC information made through a litigation request or demand, as well as establishing procedures for responding to the requests. This proposed rule also states the factors that OSC will consider in determining whether to authorize a release of official information in response to a request.

    Procedural Determinations

    Administrative Procedure Act (APA): This action is taken under the Special Counsel's authority at 5 U.S.C. 1212(e) to publish regulations in the Federal Register.

    Executive Order 12866 (Regulatory Planning and Review): OSC does not anticipate that this proposed rule will have significant economic impact, raise novel issues, and/or have any other significant impacts. Thus this proposed rule is not a significant regulatory action under 3(f) of Executive Order 12866 and does not require an assessment of potential costs and benefits under 6(a)(3) of the Order.

    Congressional Review Act (CRA): OSC has determined that this proposed rule is not a major rule under the Congressional Review Act, as it is unlikely to result in an annual effect on the economy of $100 million or more; is unlikely to result in a major increase in costs or prices for consumers, individual industries, federal, state, or local government agencies or geographic regions; and is unlikely to have a significant adverse effect on competition, employment, investment, productivity, or innovation, or on the ability of U.S.-based enterprises to compete in domestic and export markets.

    Regulatory Flexibility Act (RFA): The Regulatory Flexibility Act does not apply, even though this proposed rule is being offered for notice and comment procedures under the APA. This proposed rule will not directly regulate small entities. OSC therefore need not perform a regulatory flexibility analysis of small entity impacts.

    Unfunded Mandates Reform Act (UMRA): This proposed revision does not impose any federal mandates on state, local, or tribal governments, or on the private sector within the meaning of the UMRA.

    National Environmental Policy Act (NEPA): This proposed rule will have no physical impact upon the environment and therefore will not require any further review under NEPA.

    Paperwork Reduction Act (PRA): This proposed rule does not impose any new recordkeeping, reporting, or other information collection requirements on the public. The proposed rule sets forth procedures by which litigants may serve summonses, complaints, subpoenas, and other legal process, demands, and requests upon the OSC. The proposed rule imposes special procedural requirements for those who seek to serve third-party subpoenas upon the OSC in accordance with United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951). These requirements may increase the time and burden associated with obtaining records of the OSC in response to such third-party subpoenas.

    Executive Order 13132 (Federalism): This proposed revision does not have new federalism implications under Executive Order 13132.

    Executive Order 12988 (Civil Justice Reform): This proposed rule meets applicable standards of 3(a) and 3(b)(2) of Executive Order 12988.

    List of Subjects in 5 CFR Part 1820

    Administrative practice and procedure, Freedom of information, Government employees, Touhy regulations.

    For the reasons stated in the preamble, OSC proposes to revise 5 CFR part 1820 as follows:

    PART 1820—FREEDOM OF INFORMATION ACT REQUESTS; PRODUCTION OF RECORDS OR TESTIMONY 1. The authority citation for 5 CFR part 1820 is revised to read as follows: Authority:

    5 U.S.C. 552 and 1212(e); Executive Order No. 12600, 52 FR 23781.

    2. Revise §§ 1820.1 and 1820.2 to read as follows:
    § 1820.1 General provisions.

    This part contains rules and procedures followed by the U.S. Office of Special Counsel (OSC) in processing requests for records under the Freedom of Information Act (FOIA), as amended, at 5 U.S.C. 552. These rules and procedures should be read together with the FOIA, which provides additional information about access to agency records. Further information about the FOIA and access to OSC records is available on the FOIA page of OSC's Web site (https://www.osc.gov). Information routinely provided to the public as part of a regular OSC activity—for example, forms, press releases issued by the public affairs officer, records published on the agency's Web site, or public lists maintained at OSC headquarter offices pursuant to 5 U.S.C. 1219—may be requested and provided to the public without following this part. This part also addresses responses to demands by a court or other authority to an employee for production of official records or testimony in legal proceedings.

    § 1820.2 Requirements for making FOIA requests.

    (a) Submission of requests. (1) A request for OSC records under the FOIA must be made in writing. The request must be sent by:

    (i) Regular mail addressed to: FOIA Officer, U.S. Office of Special Counsel, 1730 M Street NW., Suite 218, Washington, DC 20036-4505; or

    (ii) By fax sent to the FOIA Officer at the number provided on the FOIA page of OSC's Web site (https://www.osc.gov); or

    (iii) By email or other electronic means as described on the FOIA page of OSC's Web site.

    (2) For the quickest handling, both the request letter and envelope or any fax cover sheet or email subject line should be clearly marked “FOIA Request.” Whether sent by mail, fax, email, or other prescribed electronic method, a FOIA request will not be considered to have been received by OSC until it reaches the FOIA office.

    (b) Description of records sought. Requesters must describe the records sought in enough detail for them to be located with a reasonable amount of effort. When requesting records about an OSC case file, the case file number, name, and type (for example, prohibited personnel practice, Hatch Act, USERRA or other complaint; Hatch Act advisory opinion; or whistleblower disclosure) should be provided, if known. Whenever possible, requests should describe any particular record sought, such as the date, title or name, author, recipient, and subject matter.

    (c) Agreement to pay fees. Making a FOIA request shall be considered an agreement by the requester to pay all applicable fees chargeable under § 1820.7, up to and including the amount of $25.00, unless the requester asks for a waiver of fees. When making a request, a requester may specify a willingness to pay a greater or lesser amount.

    3. Revise § 1820.4 to read as follows:
    § 1820.4 Timing of responses to requests.

    (a) In general. OSC ordinarily will respond to FOIA requests according to their order of receipt. In determining which records are responsive to a request, OSC ordinarily will include only records in its possession as of the date on which it begins its search for them. If any other date is used, OSC will inform the requester of that date.

    (b) Multitrack processing. (1) OSC may use two or more processing tracks by distinguishing between simple and more complex requests based on the amount of work and/or time needed to process the request.

    (2) When using multitrack processing, OSC may provide requesters in its slower track(s) with an opportunity to limit the scope of their requests in order to qualify for faster processing within the specified limits of the faster track(s).

    (c) Expedited processing. (1) Requests and appeals will be taken out of order and given expedited treatment whenever OSC has established to its satisfaction that:

    (i) Failure to obtain requested records on an expedited basis could reasonably be expected to pose an imminent threat to the life or physical safety of an individual;

    (ii) With respect to a request made by a person primarily engaged in disseminating information, an urgency exists to inform the public about an actual or alleged federal government activity; or

    (iii) The requested records relate to an appeal for which the requester faces an imminent deadline for filing with the Merit Systems Protection Board or other administrative tribunal or a court of law, seeking personal relief pursuant to a complaint filed by the requester with OSC, or referred to OSC pursuant to title 38 of the U.S. Code. Expedited status granted under this provision will apply only to the following requested records: Letters sent to the complainant by OSC; and the official complaint form submitted to OSC by the complainant or the original referred complaint if referred to OSC pursuant to title 38 of the U.S. Code. All other requested records will be processed according to the order in which OSC received the request.

    (2) A request for expedited processing must be made in writing and sent to OSC's FOIA Officer. Such a request will not be considered to have been received until it reaches the FOIA Officer.

    (3) A requester who seeks expedited processing must submit a statement, certified to be true and correct to the best of that person's knowledge and belief, explaining in detail the basis for requesting expedited processing. For example, a requester within the category described in paragraph (c)(1)(ii) of this section, if not a full-time member of the news media, must establish that he or she is a person whose main professional activity or occupation is information dissemination, though it need not be his or her sole occupation. The formality of certification may be waived as a matter of OSC's administrative discretion.

    (4) OSC shall decide whether to grant a request for expedited processing and notify the requester of its decision within 10 calendar days of the FOIA Officer's receipt of the request. If the request for expedited processing is granted, the request for records shall be processed as soon as practicable. If a request for expedited processing is denied, any administrative appeal of that decision shall be acted on expeditiously.

    (d) Aggregated requests. OSC may aggregate multiple requests by the same requester, or by a group of requesters acting in concert, if it reasonably believes that such requests constitute a single request involving unusual circumstances, as defined by the FOIA, supporting an extension of time to respond, and the requests involve clearly related matters.

    4. Revise § 1820.6 to read as follows:
    § 1820.6 Appeals.

    (a) Appeals of adverse determinations. A requester may appeal an adverse determination denying a FOIA request in any respect to the Office of General Counsel, U.S. Office of Special Counsel, 1730 M Street NW., Suite 218, Washington, DC 20036-4505. The appeal must be in writing, and must be submitted either by:

    (1) Regular mail sent to the address listed in this subsection, above; or

    (2) By fax sent to the FOIA Officer at the number provided on the FOIA page of OSC's Web site (https://www.osc.gov); or

    (3) By other electronic means as described on the FOIA page of OSC's Web site.

    (b) Submission and content. The appeal must be received by the Office of General Counsel within 45 days of the date of the letter denying the request. For the quickest possible handling, the appeal letter and envelope or any fax cover sheet should be clearly marked “FOIA Appeal.” The appeal letter must clearly identify the OSC determination (including the assigned FOIA request number, if known) being appealed. An appeal ordinarily will not be acted on if the request becomes a matter of FOIA litigation.

    (c) Responses to appeals. The agency decision on an appeal will be made in writing. A decision affirming an adverse determination in whole or in part shall inform the requester of the provisions for judicial review of that decision. If the adverse determination is reversed or modified on appeal, in whole or in part, the requester will be notified in a written decision and the request will be reprocessed in accordance with that appeal decision.

    5. Revise § 1820.10, add §§ 1820.11 and 1820.12, and designate them under subpart A to read as follows: Subpart A—Touhy Regulations General Provisions Sec. 1820.10 Scope and purpose. 1820.11 Applicability. 1820.12 Definitions.
    § 1820.10 Scope and purpose.

    (a) This part establishes policy, assigns responsibilities and prescribes procedures with respect to:

    (1) The production or disclosure of official information or records by current and former OSC employees, and contractors; and

    (2) The testimony of current and former OSC employees, advisors, and consultants relating to official information, official duties, or the OSC's records, in connection with federal or state litigation or administrative proceedings in which the OSC is not a party.

    (b) The OSC intends this part to:

    (1) Conserve the time of OSC employees for conducting official business;

    (2) Minimize the involvement of OSC employees in issues unrelated to OSC's mission;

    (3) Maintain the impartiality of OSC employees in disputes between private litigants; and

    (4) Protect sensitive, confidential information and the deliberative processes of the OSC.

    (c) In providing for these requirements, the OSC does not waive the sovereign immunity of the United States.

    (d) This part provides guidance for the internal operations of OSC. It does not create any right or benefit, substantive or procedural, that a party may rely upon in any legal proceeding against the United States.

    § 1820.11 Applicability.

    This part applies to demands and requests to current and former employees, and contractors, for factual or expert testimony relating to official information or official duties or for production of official records or information, in legal proceedings in which the OSC is not a named party. This part does not apply to:

    (a) Demands upon or requests for current or former OSC employees or contractors to testify as to facts or events that are unrelated to his or her official duties or that are unrelated to the functions of the OSC;

    (b) Requests for the release of records under the Freedom of Information Act, 5 U.S.C. 552, or the Privacy Act, 5 U.S.C. 552a; or

    (c) Congressional demands and requests for testimony, records or information.

    § 1820.12 Definitions.

    The following definitions apply to this part.

    (a) Demand means an order, subpoena, or other command of a court or other competent authority for the production, disclosure, or release of records or for the appearance and testimony of an OSC employee in a legal proceeding.

    (b) General Counsel means the General Counsel of the OSC or a person to whom the General Counsel has delegated authority under this part.

    (c) Legal proceeding means any matter before a court of law, administrative board or tribunal, commission, administrative law judge, hearing officer or other body that conducts a legal or administrative proceeding. Legal proceeding includes all phases of litigation.

    (d) OSC means the U.S. Office of Special Counsel.

    (e) OSC employee or employee means:

    (1)(i) Any current or former employee of the OSC; and

    (ii) Any other individual hired through contractual agreement by or on behalf of the OSC or who has performed or is performing services under such an agreement for the OSC.

    (2) This definition does not include persons who are no longer employed by the OSC and who agree to testify about matters available to the public.

    (f) Records or official records and information means all information in the custody and control of the OSC, relating to information in the custody and control of the OSC, or acquired by an OSC employee in the performance of his or her official duties or because of his or her official status, while the individual was employee by or on behalf of the OSC.

    (g) Request means any informal request, by whatever method, for the production of records and information or for testimony which has not been ordered by a court of other competent authority.

    (h) Testimony means any written or oral statements, including depositions, answers to interrogatories, affidavits, declarations, interviews, and statements made by an individual in connection with a legal proceeding.

    6. Add subpart B to read as follows: Subpart B—Demands or Requests for Testimony and Production of Documents Sec. 1820.13 General prohibition. 1820.14 Factors the OSC will consider. 1820.15 Filing requirements for litigants. 1820.16 Service of requests or demands. 1820.17 Processing requests or demands. 1820.18 Final determinations. 1820.19 Restrictions that apply to testimony. 1820.20 Restrictions that apply to released records. 1820.21 Procedure when a decision is not made prior to the time a response is required. 1820.22 Procedure in the event of an adverse ruling. Subpart B—Demands or Requests for Testimony and Production of Documents
    § 1820.13 General prohibition.

    No employee of OSC may produce official records and information or provide any testimony relating to official information in response to a demand or request without the prior written approval of the General Counsel.

    § 1820.14 Factors the OSC will consider.

    The General Counsel, in his or her sole discretion, may grant an employee permission to testify on matters relating to official information, or produce official records and information, in response to a demand or request. Among the relevant factors that the General Counsel may consider in making this decision are whether:

    (a) The purposes of this part are met;

    (b) Allowing such testimony or production of records would be necessary to prevent a miscarriage of justice;

    (c) Allowing such testimony or production of records would assist or hinder the OSC in performing its statutory duties;

    (d) Allowing such testimony or production of records would be in the best interest of the OSC or the United States;

    (e) The records or testimony can be obtained from other sources;

    (f) The demand or request is unduly burdensome or otherwise inappropriate under the applicable rules of discovery or the rule of procedure governing the case or matter in which the demand or request arose;

    (g) Disclosure would violate a statute, Executive Order or regulation;

    (h) Disclosure would reveal confidential, sensitive, or privileged information, trade secrets or similar, confidential or financial information, otherwise protected information, or information which would otherwise be inappropriate for release;

    (i) Disclosure would impede or interfere with an ongoing law enforcement investigation or proceeding, or compromise constitutional rights or national security interests;

    (j) Disclosure would result in the OSC appearing to favor one litigant over another;

    (k) A substantial government interest is implicated;

    (l) The demand or request is within the authority of the party making it; and

    (m) The demand or request is sufficiently specific to be answered.

    § 1820.15 Filing requirements for litigants seeking documents or testimony.

    A litigant must comply with the following requirements when filing a request for official records and information or testimony under this part. A request should be filed before a demand is issued.

    (a) The request must be in writing and must be submitted to the General Counsel.

    (b) The written request must contain the following information:

    (1) The caption of the legal or administrative proceeding, docket number, and name and address of the court or other administrative or regulatory authority involved;

    (2) A copy of the complaint or equivalent document setting forth the assertions in the case and any other pleading or document necessary to show relevance;

    (3) A list of categories of records sought, a detailed description of how the information sought is relevant to the issues in the legal or administrative proceeding, and a specific description of the substance of the testimony or records sought;

    (4) A statement as to how the need for the information outweighs any need to maintain the confidentiality of the information and outweighs the burden on the OSC to produce the records or provide testimony;

    (5) A statement indicating that the information sought is not available from another source, from other persons or entities, or from the testimony of someone other than an OSC employee, such as a retained expert;

    (6) If testimony is requested, the intended use of the testimony, and a showing that no document could be provided and used in lieu of testimony;

    (7) A description of all prior decisions, orders, or pending motions in the case that bear upon the relevance of the requested records or testimony;

    (8) The name, address, and telephone number of counsel to each party in the case; and

    (9) An estimate of the amount of time that the requester and other parties will require of each OSC employee for time spent by the employee to prepare for testimony, in travel, and for attendance in the legal proceeding.

    (c) The OSC reserves the right to require additional information to complete the request where appropriate.

    (d) The request should be submitted at least 30 days before the date that records or testimony is required. Requests submitted in less than 30 days before records or testimony is required must be accompanied by a written explanation stating the reasons for the late request and the reasons for expedited processing.

    (e) Failure to cooperate in good faith to enable the General Counsel to make an informed decision may serve as the basis for a determination not to comply with the request.

    (f) The request should state that the requester will provide a copy of the OSC employee's statement free of charge and that the requester will permit the OSC to have a representative present during the employee's testimony.

    § 1820.16 Service of requests or demands.

    Requests or demands for official records or information or testimony under this subpart must be served by mail or hand delivery to the Office of General Counsel, U.S. Office of Special Counsel, 1730 M. St, NW., Suite 213, Washington, DC 20036; or sent by fax to 202-254-3711.

    § 1820.17 Processing requests or demands.

    (a) After receiving service of a request or demand for testimony, the General Counsel will review the request and, in accordance with the provisions of this subpart, determine whether, or under what conditions, to authorize the employee to testify on matters relating to official information and/or produce official records and information.

    (b) Absent exigent circumstances, the OSC will issue a determination within 30 days from the date the request is received.

    (c) The General Counsel may grant a waiver of any procedure described by this subpart where a waiver is considered necessary to promote a significant interest of the OSC or the United States, or for other good cause.

    (d) Certification (authentication) of copies of records. The OSC may certify that records are true copies in order to facilitate their use as evidence. If a requester seeks certification, the requester must request certified copies from the OSC at least 30 days before the date they will be needed.

    § 1820.18 Final determination.

    The General Counsel makes the final determination regarding requests to employees for production of official records and information or testimony in litigation in which the OSC is not a party. All final determinations are within the sole discretion of the General Counsel. The General Counsel will notify the requester and, when appropriate, the court or other competent authority of the final determination, the reasons for the grant or denial of the request, and any conditions that the General Counsel may impose on the release of records or information, or on the testimony of an OSC employee. The General Counsel's decision exhausts administrative remedies for purposes of disclosure of the information.

    § 1820.19 Restrictions that apply to testimony.

    (a) The General Counsel may impose conditions or restrictions on the testimony of OSC employees including, for example:

    (1) Limiting the areas of testimony;

    (2) Requiring the requester and other parties to the legal proceeding to agree that the transcript of the testimony will be kept under seal;

    (3) Requiring that the transcript will be used or made available only in the particular legal proceeding for which testimony was requested. The General Counsel may also require a copy of the transcript of testimony at the requester's expense.

    (b) The OSC may offer the employee's written declaration in lieu of testimony.

    (c) If authorized to testify pursuant to this part, an employee may testify as to facts within his or her personal knowledge, but, unless specifically authorized to do so by the General Counsel, the employee shall not;

    (1) Disclose confidential or privileged information; or

    (2) For a current OSC employee, testify as an expert or opinion witness with regard to any matter arising out of the employee's official duties or the functions of the OSC unless testimony is being given on behalf of the United States (see also 5 CFR 2635.805).

    (d) The scheduling of an employee's testimony, including the amount of time that the employee will be made available for testimony, will be subject to the OSC's approval.

    § 1820.20 Restrictions that apply to released records.

    (a) The General Counsel may impose conditions or restrictions on the release of official records and information, including the requirement that parties to the proceeding obtain a protective order or execute a confidentiality agreement to limit access and any further disclosure. The terms of the protective order or of a confidentiality agreement must be acceptable to the General Counsel. In cases where protective orders or confidentiality agreements have already been executed, the OSC may condition the release of official records and information on an amendment to the existing protective order (subject to court approval) or confidentiality agreement.

    (b) If the General Counsel so determines, original OSC records may be presented for examination in response to a request, but they may not be presented as evidence or otherwise used in a manner by which they could lose their identity as official OSC records, nor may they be marked or altered. In lieu of the original records, certified copies may be presented for evidentiary purposes.

    § 1820.21 Procedure when a decision is not made prior to the time a response is required.

    If a response to a demand or request is required before the General Counsel can make the determination referred to in § 1820.28, the General Counsel, when necessary, will provide the court or other competent authority with a copy of this part, inform the court or other competent authority that the request is being reviewed, provide an estimate as to when a decision will be made, and seek a stay of the demand or request pending a final determination.

    § 1820.22 Procedure in the event of an adverse ruling.

    If the court or other competent authority fails to stay a demand or request, the employee upon whom the demand or request is made, unless otherwise advised by the General Counsel, will appear, if necessary, at the stated time and place, produce a copy of this part, state that the employee has been advised by counsel not to provide the requested testimony or produce documents, and respectfully decline to comply with the demand or request, citing United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951).

    7. Add subpart C, consisting of § 1820.23, to read as follows: Subpart C—Schedule of Fees
    § 1820.23 Fees.

    (a) Generally. The General Counsel may condition the production of records or appearance for testimony upon advance payment of a reasonable estimate of the costs to the OSC.

    (b) Fees for records. Fees for producing records will include fees for searching, reviewing, and duplicating records, costs of attorney time spent in reviewing the request, and expenses generated by materials and equipment used to search for, produce, and copy the responsive information. Costs for employee time will be calculated on the basis of the hourly pay of the employee (including all pay, allowances, and benefits). Fees for duplication will be the same as those charged by the OSC in its Freedom of Information Act regulations at § 1820.7.

    (c) Witness fees. Fees for attendance by a witness will include fees, expenses, and allowances prescribed by the court's rules. If no such fees are prescribed, witness fees will be determined based upon the rule of the federal district closest to the location where the witness will appear and on 28 U.S.C. 1821, as applicable. Such fees will include cost of time spent by the witness to prepare for testimony, in travel and for attendance in the legal proceeding, plus travel costs.

    (d) Payment of fees. A requester must pay witness fees for current OSC employees and any record certification fees by submitting to the General Counsel a check or money order for the appropriate amount made payable to the United States Department of Treasury. In the case of testimony of former OSC employees, the requester must pay applicable fees directly to the former OSC employee in accordance with 28 U.S.C. 1821 or other applicable statutes.

    (e) Waiver or reduction of fees. The General Counsel, in his or her sole discretion, may, upon a showing of reasonable cause, waive or reduce any fees in connection with the testimony, production, or certification of records.

    (f) De minimis fees. Fees will not be assessed if the total charge would be $10.00 or less.

    8. Add subpart D, consisting of § 1820.24, to read as follows: Subpart D—Penalties
    § 1820.24 Penalties.

    (a) An employee who discloses official records or information or gives testimony relating to official information, except as expressly authorized by the OSC, or as ordered by a federal court after the OSC has had the opportunity to be heard, may face the penalties provided in 18 U.S.C. 641 and other applicable laws. Additionally, former OSC employees are subject to the restrictions and penalties of 18 U.S.C. 207 and 216.

    (b) A current OSC employee who testifies or produces official records and information in violation of this part shall be subject to disciplinary action.

    9. Add subpart E, consisting of § 1820.25, to read as follows: Subpart E—Conformity with Other Laws
    § 1820.25 Conformity with other laws.

    This regulation is not intended to conflict with 5 U.S.C. 2302(b)(13).

    Dated: April 21, 2016. Lisa V. Terry, General Counsel.
    [FR Doc. 2016-09799 Filed 5-4-16; 8:45 am] BILLING CODE 7405-01-P
    DEPARTMENT OF ENERGY 10 CFR Parts 430 and 431 [Docket Number EERE-2016-BT-PET-0016] Notice of Opportunity To Submit a Petition To Amend the Rule Establishing Procedures for Requests for Correction of Errors in Rules AGENCY:

    Office of Energy Efficiency and Renewable Energy, Department of Energy.

    ACTION:

    Opportunity to petition.

    SUMMARY:

    Elsewhere in this issue of the Federal Register, the U.S. Department of Energy (“DOE” or the “Department”) publishes a final rule establishing a new procedure through which an interested party can, within a 30-day period after DOE posts a rule establishing or amending an energy conservation standard, identify a possible error in such a rule and request that DOE correct the error before the rule is published (“error correction rule”). By this notice, DOE provides an opportunity for the public to file petitions to amend the error correction rule.

    DATES:

    DOE will use its best efforts to issue a public document by August 10, 2016, that responds to any petitions to amend the error correction rule that are submitted by June 6, 2016. DOE will consider comments on any petitions to amend the error correction rule submitted by June 6, 2016 if those comments are submitted by June 20, 2016.

    ADDRESSES:

    To submit a petition to amend or a comment on a petition to amend in response to this notice, please email [email protected] Petitions and comments will be entered into docket number EERE-2016-BT-PET-0016, which is available for review at http://www.regulations.gov. For further information on how to review the docket, contact Ms. Brenda Edwards at (202) 586-2945 or by email: [email protected]

    FOR FURTHER INFORMATION CONTACT:

    Mr. John Cymbalsky, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Building Technologies Program, EE-5B, 1000 Independence Avenue SW., Washington, DC 20585-0121. Telephone: (202) 287-1692 or [email protected]

    SUPPLEMENTARY INFORMATION:

    The Department publishes a final rule, elsewhere in this issue of the Federal Register, establishing a new procedure through which an interested party can, within a 30-day period after DOE posts a rule establishing or amending an energy conservation standard, identify a possible error in such a rule and request that DOE correct the error before the rule is published in the Federal Register.

    The error correction rule will become effective 30 days after its publication in the Federal Register. DOE hereby provides notice to the public that the Department will accept petitions to amend the error correction rule and will use its best efforts to issue a public document by August 10, 2016, responding to any such petitions that are submitted by June 6, 2016.

    Issued in Washington, DC, on April 29, 2016. Kathleen B. Hogan, Deputy Assistant Secretary for Energy Efficiency, Energy Efficiency and Renewable Energy.
    [FR Doc. 2016-10463 Filed 5-4-16; 8:45 am] BILLING CODE 6450-01-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2015-3821; Directorate Identifier 2014-SW-025-AD RIN 2120-AA64 Airworthiness Directives; Bell Helicopter Textron AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    We propose to supersede airworthiness directive (AD) 75-26-05 for Bell Helicopter Textron (Bell) Model 204B, 205A-1 and 212 helicopters. AD 75-26-05 currently requires removing and visually inspecting each main rotor (M/R) blade and, depending on the inspection's outcome, repairing or replacing the M/R blades. This proposed AD would require more frequent inspections of certain M/R blades and would also apply to Model 205A helicopters. This proposed AD would have no requirement that helicopter blades be removed to conduct the initial visual inspections. These proposed actions are intended to detect a crack and prevent failure of an M/R blade and subsequent loss of helicopter control.

    DATES:

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

    ADDRESSES:

    You may send comments by any of the following methods:

    Federal eRulemaking Docket: Go to http://www.regulations.gov. Follow the online instructions for sending your comments electronically.

    Fax: 202-493-2251.

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

    Hand Delivery: Deliver to the “Mail” address between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

    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-2015-3821; or in person at the Docket Operations Office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this proposed AD, the economic evaluation, any comments received and other information. The street address for the Docket Operations Office (telephone 800-647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

    For service information identified in this proposed rule, contact Bell Helicopter Textron, Inc., P.O. Box 482, Fort Worth, TX 76101; telephone (817) 280-3391; fax (817) 280-6466; or at http://www.bellcustomer.com/files/. You may review service information at the FAA, Office of the Regional Counsel, Southwest Region, 10101 Hillwood Pkwy., Room 6N-321, Fort Worth, TX 76177.

    FOR FURTHER INFORMATION CONTACT:

    Charles Harrison, Project Manager, Fort Worth Aircraft Certification Office, FAA, 10101 Hillwood Pkwy., Fort Worth, TX 76177; telephone (817) 222-5140; email [email protected]

    SUPPLEMENTARY INFORMATION: Comments Invited

    We invite you to participate in this rulemaking by submitting written comments, data, or views. We also invite comments relating to the economic, environmental, energy, or federalism impacts that might result from adopting the proposals in this document. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, commenters should send only one copy of written comments, or if comments are filed electronically, commenters should submit only one time.

    We will file in the docket all comments that we receive, as well as a report summarizing each substantive public contact with FAA personnel concerning this proposed rulemaking. Before acting on this proposal, we will consider all comments we receive on or before the closing date for comments. We will consider comments filed after the comment period has closed if it is possible to do so without incurring expense or delay. We may change this proposal in light of the comments we receive.

    Discussion

    On December 3, 1975, we issued AD 75-26-05, Amendment 39-2457 (40 FR 57783, December 12, 1975) for Bell Model 204B, 205A-1, and 212 helicopters. AD 75-26-05 requires, at intervals not to exceed 12 months installed time, visually inspecting the grip pad, grip plates, doublers, drag plates, and adjacent surfaces for voids, edge voids, corrosion, cracks, and adhesive squeeze-out along bond lines. AD 75-26-05 prohibits returning to service any blade with a crack or an adhesive void exceeding certain limits. For damage within certain limits, the M/R blade can be repaired, refinished, and reinstalled.

    AD 75-26-05 was prompted by an evaluation of a cracked M/R blade that concludes that initial cracking resulted from corrosion. These actions were intended to detect a crack and corrosion and prevent further corrosion in the M/R blade inboard portion.

    Actions Since AD 75-26-05 Was Issued

    Since we issued AD 75-26-05, Bell has evaluated an M/R blade installed on a Model UH-1H helicopter with multiple fatigue cracks around the blade retention bolt hole. The cracks resulted from a void between the lower grip plate and the grip pad. A “substantial” void also was found at the outboard doubler tip on the lower blade surface. Different part-numbered M/R blades of the same type may also be installed on Model 204B, 205A, and 205A-1 helicopters. We have determined that more frequent inspections than those required by AD 75-26-05 are necessary to detect cracking or certain damage. While AD 75-26-05 requires removing the blades from the M/R hub, the inspections in this proposed AD would not. AD 75-26-05 applies to the Model 212 helicopter, and this proposed AD would not because similar inspections on Model 212 blades addressing the unsafe condition are required by AD 2011-23-02 (76 FR 68301, November 4, 2011). We are including specific part-numbered blades in the applicability so that the proposed AD would no longer be required if a new blade is designed that is not subject to the unsafe condition.

    FAA's Determination

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

    Related Service Information

    Bell issued Alert Service Bulletin (ASB) No. UH-1H-13-09, dated January 14, 2013, for the Model UH-1H helicopter (ASB UH-1H-13-09). ASB UH-1H-13-09 specifies a one-time visual inspection, within 10 hours time-in-service (TIS), of the lower grip pad and upper and lower grip plates for cracks, edge voids, and loose or damaged adhesive squeeze-out. ASB UH-1H-13-09 also specifies a repetitive visual inspection, daily and at every 150 hours TIS, of the lower grip pad, upper and lower grip plates, and all upper and the lower doublers for cracks, corrosion, edge voids, and loose or damaged adhesive squeeze-out. Similar inspections are contained in Bell ASB No. 204-75-1 (ASB 204-75-1) and No. 205-75-5 (ASB 205-75-5), both Revision C and both dated April 25, 1979, for Bell Model 204B and 205A-1 helicopters, respectively. ASB 204-75-1 and ASB 205-75-5 call for daily inspections and for inspections, rework, and refinishing every 1,000 hours TIS or 12 months, whichever occurs first.

    Proposed AD Requirements

    This proposed AD would require within 25 hours TIS or 2 weeks, whichever occurs first, and thereafter at intervals not to exceed 25 hours TIS or 2 weeks, whichever occurs first, cleaning the upper and lower surfaces of each M/R blade from an area starting at the butt end of the blade to three inches outboard of the doublers. The proposed AD also would require visually inspecting various M/R parts for a crack or corrosion using a 3X or higher power magnifying glass and a light.

    If there is a crack, corrosion, an edge void, loose or damaged adhesive squeeze-out, or an edge delamination before further flight, this proposed AD would require repairing the M/R blade or replacing it with an airworthy M/R blade, depending on the condition's severity.

    Differences Between This Proposed AD and the Service Information

    The proposed AD would require all inspections every 25 hours TIS or 2 weeks, whichever occurs first. ASB UH-1H-13-09 specifies a one-time inspection within 10 hours TIS, and then a second repetitive inspection daily and at every 150 hours TIS, while ASB 204-75-1 and ASB 205-75-5 call for daily visual inspections, and inspections, rework, and refinishing every 1,000 hours TIS or 12 months, whichever occurs first. This proposed AD contains more detailed inspection requirements and a more specific inspection area than the instructions in ASB UH-1H-13-09. The service information applies to M/R blade, part number (P/N) 204-011-250, and was issued for Model 204B and 205A-1 helicopters. The proposed AD also applies to P/N 204-011-200, because this blade is of the same type and susceptible to the unsafe condition. The proposed AD also applies to certain M/R blades installed on the Model 205A helicopters. While none of these models are registered in the U.S., they were included because of blade P/N eligibility.

    Costs of Compliance

    We estimate that this proposed AD would affect 52 helicopters of U.S. Registry and that labor costs average $85 a work-hour. Based on these estimates, we expect the following costs:

    Cleaning and performing all inspections of a set of M/R blades (2 per helicopter) would require a half work-hour. No parts would be needed. At an estimated 24 inspections a year, the cost would be $1,032 per helicopter and $53,664 for the U.S. fleet.

    Replacing an M/R blade would require 12 work hours and parts would cost $90,656 for a total cost of $91,676 per blade.

    Authority for This Rulemaking

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

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

    Regulatory Findings

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

    For the reasons discussed, I certify this proposed regulation:

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

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

    3. Will not affect intrastate aviation in Alaska to the extent that it justifies making a regulatory distinction; 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.

    We prepared an economic evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket.

    List of Subjects in 14 CFR Part 39

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

    The Proposed Amendment

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

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

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by removing Airworthiness Directive (AD) No. 75-26-05, Amendment 39-2457 (40 FR 57783, December 12, 1975), and adding the following new AD: Bell Helicopter Textron: Docket No. FAA-2015-3821; Directorate Identifier 2014-SW-025-AD. (a) Applicability

    This AD applies to Model 204B, 205A, and 205A-1 helicopters with a main rotor (M/R) blade, part number (P/N) 204-011-200-001 or P/N 204-011-250-(all dash numbers), installed, certificated in any category.

    (b) Unsafe Condition

    This AD defines the unsafe condition as a crack in an M/R blade, which could result in failure of an M/R blade and subsequent loss of helicopter control.

    (c) Affected ADs

    This AD supersedes AD 75-26-05, Amendment 39-2457 (40 FR 57783, December 12, 1975).

    (d) Comments Due Date

    We must receive comments by July 5, 2016.

    (e) Compliance

    You are responsible for performing each action required by this AD within the specified compliance time unless it has already been accomplished prior to that time.

    (f) Required Actions

    (1) Within 25 hours time-in-service (TIS) or 2 weeks, whichever occurs first, and thereafter at intervals not to exceed 25 hours TIS or 2 weeks, whichever occurs first, clean the upper and lower exposed surfaces of each M/R blade from an area starting at the butt end of the blade to three inches outboard of the doublers. Using a 3X or higher power magnifying glass and a light, inspect as follows:

    (i) Visually inspect the exposed areas of the lower grip pad and upper and lower grip plates of each M/R blade for a crack and any corrosion.

    (ii) On the upper and lower exposed surfaces of each M/R blade from blade stations 24.5 to 35 for the chord width, visually inspect each layered doubler and blade skin for a crack and any corrosion. Pay particular attention for any cracking in a doubler or skin near or at the same blade station as the blade retention bolt hole (blade station 28).

    (iii) Visually inspect the exposed areas of each bond line at the edges of the lower grip pad, upper and lower grip plates, and each layered doubler (bond lines) on the upper and lower surfaces of each M/R blade for the entire length and chord width for an edge void, any corrosion, loose or damaged adhesive squeeze-out, and an edge delamination. Pay particular attention to any crack in the paint finish that follows the outline of a grip pad, grip plate, or doubler, and to any loose or damaged adhesive squeeze-out, as these may be the indication of an edge void.

    (2) If there is a crack, any corrosion, an edge void, loose or damaged adhesive squeeze-out, or an edge delamination during any inspection in paragraph (f)(1) of this AD, before further flight, do the following:

    (i) If there is a crack in a grip pad or any grip plate or doubler, replace the M/R blade with an airworthy M/R blade.

    (ii) If there is a crack in the M/R blade skin that is within maximum repair damage limits, repair the M/R blade. If the crack exceeds maximum repair damage limits, replace the M/R blade with an airworthy M/R blade.

    (iii) If there is any corrosion within maximum repair damage limits, repair the M/R blade. If the corrosion exceeds maximum repair damage limits, replace the M/R blade with an airworthy M/R blade.

    (iv) If there is an edge void in the grip pad or in a grip plate or doubler, determine the length and depth using a feeler gauge. Repair the M/R blade if the edge void is within maximum repair damage limits, or replace the M/R blade with an airworthy M/R blade.

    (v) If there is an edge void in a grip plate or doubler near the outboard tip, tap inspect the affected area to determine the size and shape of the void. Repair the M/R blade if the edge void is within maximum repair damage limits, or replace the M/R blade with an airworthy M/R blade.

    (vi) If there is any loose or damaged adhesive squeeze-out along any of the bond lines, trim or scrape away the adhesive without damaging the adjacent surfaces or parent material of the M/R blade. Determine if there is an edge void or any corrosion by lightly sanding the trimmed area smooth using 280 or finer grit paper. If there is no edge void or corrosion, refinish the sanded area.

    (vii) If there is an edge delamination along any of the bond lines or a crack in the paint finish, determine if there is an edge void or a crack in the grip pad, grip plate, doubler, or skin by removing paint from the affected area by lightly sanding in a span-wise direction using 180-220 grit paper. If there are no edge voids and no cracks, refinish the sanded area.

    (viii) If any parent material is removed during any sanding or trimming in paragraphs (f)(2)(vi) or (f)(2)(vii) of this AD, repair the M/R blade if the damage is within maximum repair damage limits, or replace the M/R blade with an airworthy M/R blade.

    (g) Special Flight Permit

    Special flight permits are prohibited.

    (h) Alternative Methods of Compliance (AMOCs)

    (1) The Manager, Fort Worth Aircraft Certification Office, FAA, may approve AMOCs for this AD. Send your proposal to: Charles Harrison, Project Manager, Fort Worth Aircraft Certification Office, FAA, 10101 Hillwood Pkwy, Fort Worth, TX 76177; telephone (817) 222-5140; email [email protected]

    (2) For operations conducted under a 14 CFR part 119 operating certificate or under 14 CFR part 91, subpart K, we suggest that you notify your principal inspector, or lacking a principal inspector, the manager of the local flight standards district office or certificate holding district office before operating any aircraft complying with this AD through an AMOC.

    (i) Additional Information

    Bell Helicopter Alert Service Bulletin (ASB) No. UH-1H-13-09, dated January 14, 2013, and ASB No. 204-75-1 and ASB No. 205-75-5, both Revision C and both dated April 25, 1979, which are not incorporated by reference, contain additional information about the subject of this AD. For service information identified in this AD, contact Bell Helicopter Textron, Inc., P.O. Box 482, Fort Worth, TX 76101; telephone (817) 280-3391; fax (817) 280-6466; or at http://www.bellcustomer.com/files/. You may review the service information at the FAA, Office of the Regional Counsel, Southwest Region, 10101 Hillwood Pkwy, Room 6N-321, Fort Worth, TX 76177.

    (j) Subject

    Joint Aircraft Service Component (JASC) Code: 6210, Main Rotor Blades.

    Issued in Fort Worth, Texas, on April 15, 2016. Scott A. Horn, Acting Manager, Rotorcraft Directorate, Aircraft Certification Service.
    [FR Doc. 2016-10523 Filed 5-4-16; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2015-3941; Directorate Identifier 2015-SW-052-AD] RIN 2120-AA64 Airworthiness Directives; Airbus Helicopters Deutschland GmbH Helicopters AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    We propose to adopt a new airworthiness directive (AD) for Airbus Helicopters Deutschland GmbH (Airbus Helicopters) Model MBB-BK 117A-3, MBB-BK 117A-4, MBB-BK 117B-1, MBB-BK 117B-2, and MBB-BK 117C-1 helicopters. This proposed AD would require removing adhesive seals from the exterior and interior door jettisoning system on the left and right sliding doors. This proposed AD is prompted by reports that the adhesive seal prevented the doors from jettisoning properly. The proposed actions are intended to remove the adhesive seal to allow the doors to jettison properly so occupants can exit the helicopter during an emergency.

    DATES:

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

    ADDRESSES:

    You may send comments by any of the following methods:

    Federal eRulemaking Docket: Go to http://www.regulations.gov. Follow the online instructions for sending your comments electronically.

    Fax: 202-493-2251.

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

    Hand Delivery: Deliver to the “Mail” address between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

    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-2015-3941; or in person at the Docket Operations Office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this proposed AD, the European Aviation Safety Agency (EASA) AD, the economic evaluation, any comments received, and other information. The street address for the Docket Operations Office (telephone 800-647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

    For service information identified in this proposed rule, contact Airbus Helicopters, 2701 N. Forum Drive, Grand Prairie, TX 75052; telephone (972) 641-0000 or (800) 232-0323; fax (972) 641-3775; or at http://www.airbushelicopters.com/techpub. You may review the referenced service information at the FAA, Office of the Regional Counsel, Southwest Region, 10101 Hillwood Pkwy., Room 6N-321, Fort Worth, TX 76177.

    FOR FURTHER INFORMATION CONTACT:

    Matt Fuller, Senior Aviation Safety Engineer, Safety Management Group, Rotorcraft Directorate, FAA, 10101 Hillwood Pkwy., Fort Worth, TX 76177; telephone (817) 222-5110; email [email protected]

    SUPPLEMENTARY INFORMATION: Comments Invited

    We invite you to participate in this rulemaking by submitting written comments, data, or views. We also invite comments relating to the economic, environmental, energy, or federalism impacts that might result from adopting the proposals in this document. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, commenters should send only one copy of written comments, or if comments are filed electronically, commenters should submit only one time.

    We will file in the docket all comments that we receive, as well as a report summarizing each substantive public contact with FAA personnel concerning this proposed rulemaking. Before acting on this proposal, we will consider all comments we receive on or before the closing date for comments. We will consider comments filed after the comment period has closed if it is possible to do so without incurring expense or delay. We may change this proposal in light of the comments we receive.

    Discussion

    EASA, which is the aviation authority for the Member States of the European Union, has issued EASA AD No. 2015-0163, dated August 6, 2015, to correct an unsafe condition for Airbus Helicopters Model MBB-BK 117A-3, MBB-BK 117A-4, MBB-BK 117B-1, MBB-BK 117B-2, and MBB-BK 117C-1 helicopters. EASA advises that difficulties were reported regarding the jettisoning of doors. The malfunction was caused by the adhesive seal, which hampered the free movement of the inner handle. According to EASA, a subsequent investigation showed that the adhesive seal has mechanical and physical properties that do not meet relevant certification requirements. EASA states that this condition, if not detected and corrected, could lead to a malfunction of the door's jettisoning mechanism, reducing or preventing the evacuation of the helicopter during an emergency, possibly resulting in injury to occupants. To address this condition, the EASA AD requires inspecting the exterior and interior door jettisoning system on the left and right sliding doors for adhesive seal part number (P/N) 117-800201.01 and removing any adhesive seals that are installed.

    FAA's Determination

    These helicopters have been approved by the aviation authority of Germany and are approved for operation in the United States. Pursuant to our bilateral agreement with Germany, EASA, its technical representative, has notified us of the unsafe condition described in its AD. We are proposing this AD because we evaluated all known relevant information and determined that an unsafe condition is likely to exist or develop on other products of the same type design.

    Related Service Information Under 1 CFR Part 51

    We reviewed Airbus Helicopters Alert Service Bulletin MBB-BK117-20A-114, Revision 1, dated July 30, 2015 (ASB) for Model MBB-BK 117A-3, MBB-BK 117A-4, MBB-BK 117B-1, MBB-BK 117B-2, and MBB-BK 117C-1 helicopters. The ASB reports that the proper functioning of the sliding door jettison system is hampered by an adhesive seal. The seal was not manufactured correctly, and therefore did not perform as the test seal did during door jettisoning tests. The ASB calls for removing any adhesive seals on the exterior and interior door jettison system and discarding any adhesive seals that have not yet been installed.

    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.

    Proposed AD Requirements

    This proposed AD would require, within 25 hours time-in-service, removing the adhesive seal from the interior and exterior of each door. This proposed AD would also prohibit installing adhesive seal P/N 117-800201.01 on any helicopter sliding door.

    Differences Between This Proposed AD and the EASA AD

    The EASA AD requires removing adhesive seal, P/N 117-800201.01, within 30 days. The proposed AD would require removing the adhesive seal within 25 hours TIS.

    Costs of Compliance

    We estimate that this proposed AD would affect 69 helicopters of U.S. Registry and that labor costs would average $85 per work-hour. Based on these estimates, we expect that removing the adhesive seals would require a half work-hour for a labor cost of about $43 per helicopter. No parts would be needed, so the cost for the U.S. fleet would total $2,967.

    Authority for This Rulemaking

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

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

    Regulatory Findings

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

    For the reasons discussed, I certify this proposed regulation:

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

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

    3. Will not affect intrastate aviation in Alaska to the extent that it justifies making a regulatory distinction; 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.

    We prepared an economic evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket.

    List of Subjects in 14 CFR Part 39

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

    The Proposed Amendment

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

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

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): Airbus Helicopters Deutschland GmbH: Docket No. FAA-2015-3941; Directorate Identifier 2015-SW-052-AD. (a) Applicability

    This AD applies to Airbus Helicopters Deutschland GmbH (Airbus Helicopters) Model MBB-BK 117A-3, MBB-BK 117A-4, MBB-BK 117B-1, MBB-BK 117B-2, and MBB-BK 117C-1 helicopters with an adhesive seal part number (P/N) 117-800201.01 installed on an exterior or interior sliding door, certificated in any category.

    (b) Unsafe Condition

    This AD defines the unsafe condition the presence of sealant on a sliding door (door). This condition could result in the door failing to jettison, preventing helicopter occupants from exiting the helicopter during an emergency.

    (c) Comments Due Date

    We must receive comments by July 5, 2016.

    (d) Compliance

    You are responsible for performing each action required by this AD within the specified compliance time unless it has already been accomplished prior to that time.

    (e) Required Actions

    (1) Within 25 hours time-in-service, remove adhesive seal P/N 117-800201.01 from the interior and exterior of each door. The areas where the seal is installed are shown in Figure 1 and Figure 2 of Airbus Helicopters Alert Service Bulletin MBB-BK117-20A-114, Revision 1, dated July 30, 2015.

    (2) After the effective date of this AD, do not install adhesive seal P/N 117-800201.01 on any helicopter sliding door.

    (f) Alternative Methods of Compliance (AMOCs)

    (1) The Manager, Safety Management Group, FAA, may approve AMOCs for this AD. Send your proposal to: Matt Fuller, Senior Aviation Safety Engineer, Safety Management Group, Rotorcraft Directorate, FAA, 10101 Hillwood Pkwy., Fort Worth, TX 76177; telephone (817) 222-5110; email [email protected]

    (2) For operations conducted under a 14 CFR part 119 operating certificate or under 14 CFR part 91, subpart K, we suggest that you notify your principal inspector, or lacking a principal inspector, the manager of the local flight standards district office or certificate holding district office before operating any aircraft complying with this AD through an AMOC.

    (g) Additional Information

    The subject of this AD is addressed in European Aviation Safety Agency (EASA) AD No. 2015-0163, dated August 6, 2015. You may view the EASA AD on the Internet at http://www.regulations.gov in the AD Docket.

    (h) Subject

    Joint Aircraft Service Component (JASC) Code: 5220, Emergency Exits.

    Issued in Fort Worth, Texas, on April 19, 2016. Scott A. Horn, Acting Manager, Rotorcraft Directorate, Aircraft Certification Service.
    [FR Doc. 2016-10285 Filed 5-4-16; 8:45 am] BILLING CODE 4910-13-P
    SOCIAL SECURITY ADMINISTRATION 20 CFR Part 421 [Docket No. SSA-2016-0011] RIN 0960-AH95 Implementation of the NICS Improvement Amendments Act of 2007 AGENCY:

    Social Security Administration.

    ACTION:

    Notice of proposed rulemaking.

    SUMMARY:

    We propose to implement provisions of the NICS Improvement Amendments Act of 2007 (NIAA) that require Federal agencies to provide relevant records to the Attorney General for inclusion in the National Instant Criminal Background Check System (NICS). Under the proposed rule, we would identify, on a prospective basis, individuals who receive Disability Insurance benefits under title II of the Social Security Act (Act) or Supplemental Security Income (SSI) payments under title XVI of the Act and also meet certain other criteria, including an award of benefits based on a finding that the individual's mental impairment meets or medically equals the requirements of section 12.00 of the Listing of Impairments (Listings) and receipt of benefits through a representative payee. We propose to provide pertinent information about these individuals to the Attorney General on not less than a quarterly basis. As required by the NIAA, at the commencement of the adjudication process we would also notify individuals, both orally and in writing, of their possible Federal prohibition on possessing or receiving firearms, the consequences of such inclusion, the criminal penalties for violating the Gun Control Act, and the availability of relief from the prohibitions imposed by Federal law. Finally, we also propose to establish a program that permits individuals to request relief from the Federal firearms prohibitions based on our adjudication. The proposed rule would allow us to fulfill responsibilities that we have under the NIAA.

    DATES:

    To ensure that your comments are considered, we must receive them no later than July 5, 2016.

    ADDRESSES:

    You may submit comments by any one of three methods—Internet, fax, or mail. Do not submit the same comment multiple times or by more than one method. Regardless of which method you choose, please state that your comments refer to Docket No. SSA-2016-0011 so that we may associate your comments with the correct regulation.

    Caution: You should be careful to include in your comments only information that you wish to make publicly available. We strongly urge you not to include in your comments any personal information, such as Social Security numbers or medical information.

    1. Internet: We strongly recommend that you submit your comments via the Internet. Please visit the Federal eRulemaking portal at http://www.regulations.gov. Use the “Search” function to find docket number SSA-2016-0011. The system will issue a tracking number to confirm your submission. You will not be able to view your comment immediately because we must post each comment manually. It may take up to a week or more for your comment to be viewable.

    2. Fax: Fax comments to (410) 966-2830.

    3. Mail: Mail your comments to NICS Comments, Social Security Administration, 3100 West High Rise Building, 6401 Security Boulevard, Baltimore, Maryland 21235-6401.

    Comments are available for public viewing on the Federal eRulemaking portal at http://www.regulations.gov or in person, during regular business hours, by arranging with the contact identified below.

    FOR FURTHER INFORMATION CONTACT:

    Social Security Administration, 410-965-3735 or [email protected] We will not accept public comments at this telephone number or email address; to comment, please follow the instructions above. For information on eligibility or filing for benefits, call our national toll-free number, 1-800-772-1213 or TTY 1-800-325-0778, or visit our Internet site, Social Security Online, at http://www.socialsecurity.gov.

    SUPPLEMENTARY INFORMATION:

    Background

    Section 103 of the Brady Handgun Violence Prevention Act (Brady Act) required the Attorney General to establish the NICS, which allows a Federal Firearms Licensee (FFL) to determine whether the law prohibits a potential buyer from possessing or receiving a firearm.1 The Brady Act and its implementing regulations are designed to prevent the transfer of firearms by FFLs to individuals who are not allowed to possess or receive them because of restrictions contained in the Gun Control Act of 1968, as amended,2 or State law. Federal law makes it unlawful for certain persons to ship, transport, receive, or possess any firearm or ammunition that has been shipped or transported in interstate or foreign commerce.3 As relevant to our programs, the Federal prohibition on the possession or receipt of firearms or ammunition applies to a person who, in the language of the statute, “has been adjudicated as a mental defective.” 4

    1 Public Law 103-159, 107 Stat. 1536, 1541 (codified at 18 U.S.C. 922 note).

    2 Codified at 18 U.S.C. Chapter 44.

    3 18 U.S.C. 922(g) and (n).

    4 18 U.S.C. 922(g)(4). In these rules, we will refer to this prohibition as the “Federal mental health prohibitor” although we also use the statutory language in section 922(g)(4) in our proposed regulatory language below.

    In 2007, Congress found that many background checks were delayed if the Federal Bureau of Investigation (FBI) did not have automated access to complete information concerning persons prohibited from possessing or receiving a firearm under Federal or State law. Congress noted that the primary cause of delay in the NICS background checks included a lack of automated access to information concerning persons prohibited from possessing or receiving a firearm because of mental illness, restraining orders, or misdemeanor convictions for domestic violence.5 Congress also found that computerizing information relating to criminal history, criminal dispositions, mental illness, restraining orders, and misdemeanor convictions for domestic violence, or making this information available to the NICS in a usable format, could improve automated access to it.6

    5 NICS Improvement Amendments Act of 2007 (NIAA), Public Law 110-180, sec. 2, 121 Stat. 2559, 2559-2560.

    6 Id.

    To address these concerns, Congress enacted the NIAA,7 which strengthened the NICS by increasing the quantity and quality of relevant records from Federal, State, and tribal authorities accessible by the system. Among other things, the NIAA requires that, if a Federal department or agency has any record demonstrating that a person falls within one of the categories in 18 U.S.C. 922(g) or (n), the head of that department or agency must provide the pertinent information contained in the record to the Attorney General, not less frequently than quarterly, for inclusion in the NICS.8

    7 Public Law 110-180, 121 Stat. 2559 (codified at 18 U.S.C. 922 note).

    8 NIAA, sec. 101(a)(4), 121 Stat. at 2161.

    On January 16, 2013, the President issued a Memorandum to Federal departments and agencies aimed at further strengthening the accuracy and efficiency of the Federal background check system for firearms purchases.9 The President directed the Department of Justice (DOJ) to provide guidance to agencies regarding the identification and sharing of relevant Federal records and their submission to the NICS; DOJ provided its guidance to agencies in March 2013.10

    9 Memorandum for the Heads of Executive Departments and Agencies, Improving Availability of Relevant Executive Branch Records to the National Instant Criminal Background Check System, 78 FR 4297 (2013).

    10 Department of Justice, Guidance to Agencies Regarding Submission of Relevant Federal Records to the NICS (March 2013) (“DOJ Guidance”).

    The relevant section of the DOJ Guidance discusses the Federal mental health prohibitor and the relevant agency records with respect to that prohibitor as follows:

    Pursuant to 18 U.S.C. 922(g)(4), any person `who has been adjudicated as a mental defective or who has been committed to a mental institution' is prohibited from shipping, transporting, possessing or receiving firearms under federal firearms laws. ATF has clarified through regulations that this prohibitor covers the following circumstances and categories of individuals:

    (1) A determination by a court, board, commission or other lawful authority that a person, as a result of marked subnormal intelligence, or mental illness, incompetency, condition or disease:

    ○ Is a danger to himself, herself or others; or

    ○ Lacks the mental capacity to contract or manage his or her own affairs.

    This includes (1) a person found to be insane by a court in a criminal case, and (2) a person found incompetent to stand trial or found not guilty by reason of lack of mental responsibility pursuant to articles 50a and 76b of the Uniform Code of Military Justice, 10 U.S.C. 850a, 876b.

    (2) A formal commitment of a person to a mental institution by a court, board, commission or other lawful authority. This includes commitment to a mental institution involuntarily, commitment for mental defectiveness or mental illness or commitment for other reasons, such as for drug use. It does not include a person in a mental institution for observation or a voluntary admission to a mental institution.

    Please note the following four important things about this prohibitor:

    • First, `mental institution' includes mental health facilities, mental hospitals, sanitariums, psychiatric facilities and other facilities that provide diagnoses by licensed professionals of mental retardation or mental illness, including a psychiatric ward in a general hospital.

    • Second, `mental defective' does not include a person who has been granted relief from the disability through a qualifying federal or state relief from disability program as authorized by the NIAA.

    • Third, `mental defective' also does not include a person whose adjudication or commitment was imposed by a federal department or agency, and:

    ○ The adjudication or commitment has been set aside or expunged, or the person has otherwise been fully released or discharged from all mandatory treatment, supervision or monitoring;

    ○ The person has been found by a court, board, commission or other lawful authority to no longer suffer from the mental health condition that was the basis of the adjudication or commitment, or has otherwise been found to be rehabilitated through any procedure available under law; or

    ○ The adjudication or commitment is based solely on a medical finding of disability, without an opportunity for a hearing by a court, board, commission or other lawful authority, and the person has not been adjudicated as a mental defective consistent with 18 U.S.C. 922(g)(4), except that nothing in this section or any other provision of law shall prevent a federal department or agency from providing to the Attorney General any record demonstrating that a person was adjudicated to be not guilty by reason of insanity, or based on lack of mental responsibility, or found incompetent to stand trial, in any criminal case or under the Uniform Code of Military Justice.

    • Fourth, agencies that conduct mental health adjudications must provide both oral and written notice to the individual at the commencement of the adjudication process. Such notice must include:

    ○ Notification that adjudication of the person as a mental defective or commitment to a mental institution, when final, will prohibit the individual from purchasing, possessing, receiving, shipping or transporting a firearm or ammunition under 18 U.S.C. 922(d)(4) or 922(g)(4);

    ○ Information about the penalties imposed for unlawful possession, receipt, shipment or transportation of a firearm under 18 U.S.C. 924(a)(2); and

    ○ Information about the availability of relief from the disabilities imposed by federal laws with respect to the acquisition, receipt, transfer, shipment, transportation or possession of firearms.

    Relevant Records. Records that are relevant to this prohibitor include judgment and commitment orders, sentencing orders and court or agency records of adjudications of an individual's inability to manage his or her own affairs if such adjudication is based on marked subnormal intelligence or mental illness, incompetency, condition or disease. This last category includes certain agency designations of representative or alternate payees for program beneficiaries.11

    11 The ATF regulations discussed in the DOJ Guidance are found at 27 CFR 478.11.

    Therefore, DOJ has determined that to comply with the NIAA, we must report to the Attorney General information about some of our title II and title XVI beneficiaries.12

    12 As part of our responsibilities under the NIAA, we will also provide the Attorney General with copies of court orders that we receive regarding adult title II and title XVI disability beneficiaries who have been declared legally incompetent by a State or Federal court. Our procedures regarding these types of orders are found in POMS GN 00502.005 (available at: https://secure.ssa.gov/apps10/poms.nsf/lnx/0200502005) and GN 00502.300 (available at: https://secure.ssa.gov/apps10/poms.nsf/lnx/0200502300). The FBI would determine whether these court orders meet the requirements of the Federal mental health prohibitor.

    The FBI collects and maintains, in the NICS Index, certain identifying information about individuals who are subject to one or more Federal prohibitors and thus are ineligible to possess or receive firearms.13 The minimum information required in a NICS Index record consists of the name of the ineligible individual, the individual's date of birth, sex, codes indicating the applicable prohibitor, and the submitting entity. We also propose to include the individual's Social Security number to ensure accurate identification. For individuals subject to the Federal mental health prohibitor, we would submit to the NICS only the fact that the individual is subject to that prohibitor; we would not provide underlying diagnoses, treatment records, or other identifiable health information, nor does the NICS maintain that information.

    13 See National Instant Criminal Background Check System (NICS) Operations, 2014, at page 1 (available at: http://www.fbi.gov/about-us/cjis/nics//2014-operations-report) (The NICS Index, “a database created specifically for the NICS, contains information contributed by local, state, tribal, and federal agencies pertaining to persons prohibited from receiving or possessing a firearm pursuant to state and/or federal law. Typically, the records maintained in the NICS Index are not available via the III [Interstate Identification Index] or the NCIC [National Crime Information Center].”).

    A NICS background check queries the NICS Index and certain other national databases to determine whether a prospective buyer's identifying information matches any prohibiting records contained in the databases.14 The NICS Index can be accessed only for the limited purposes authorized by regulation.15 The potential transfer of a firearm from an FFL to a prospective buyer proceeds as follows: (1) The prospective buyer is required to provide personal information on a Firearms Transaction Record (ATF Form 4473); (2) unless the prospective buyer has documentation that he or she qualifies for an exception to the NICS background check requirement,16 the FFL contacts the NICS—electronically, by telephone, or through a State level point of contact—and provides certain identifying information about the prospective buyer from ATF Form 4473; 17 (3) the FFL receives a response that the prospective firearm transfer may proceed, is denied, or is delayed. If the prospective buyer's information matches a record contained in one of the databases reviewed, but there is insufficient information in the record to immediately determine whether the firearm transfer should proceed or be denied, the transfer is delayed.

    14See National Instant Criminal Background Check System, Fact Sheet (available at: http://www.fbi.gov/about-us/cjis/nics/general-information/fact-sheet.) The other databases include the III, which contains criminal history record information; and the NCIC, which includes, e.g., information on persons subject to civil protection orders and arrest warrants.

    15 28 CFR 25.6(j). Under this regulation, access to the NICS Index for purposes unrelated to NICS background checks is limited to uses for the purposes of: (1) Providing information to Federal, state, tribal, or local criminal justice agencies in connection with the issuance of a firearm-related or explosives-related permit or license, including permits or licenses to possess, acquire, or transfer a firearm, or to carry a concealed firearm, or to import, manufacture, deal in, or purchase explosives; (2) responding to an inquiry from ATF in connection with a civil or criminal law enforcement activity relating to the Gun Control Act or the National Firearms Act; or (3) disposing of firearms in the possession of a Federal, state, tribal, or local criminal justice agency.

    16 These exceptions are outlined in 27 CFR 478.102(d). For example, a NICS check would not be required where the potential recipient of a firearm has presented a valid State permit or license, provided conditions at 27 CFR 478.102(d)(1) are met.

    17 The form collects the prospective buyer's name; demographic information such as address, place and date of birth, sex, citizenship, race and ethnicity; and “yes” or “no” answers to questions about the person's criminal history and other potential prohibitors. The form is available at http://www.atf.gov/forms/download/atf-f-4473-1.pdf.

    If there is a match, a NICS examiner reviews the record to determine whether the information it contains is, in fact, prohibiting and then either: (1) Advises the FFL to proceed with the transaction if the record does not contain prohibiting information, (2) denies the transaction (due to ineligibility) if the record does contain prohibiting information, or (3) delays the transaction pending further research if it is unclear based solely on the existing information in the record whether it is prohibiting.18 The NICS examiner does not disclose the reason for the determination to the FFL. As a result, the FFL does not learn that the individual is ineligible due to the Federal mental health prohibitor. If the NICS examiner does not provide a final status to the FFL within 3 business days of the initial background check request, the FFL may proceed with the transaction, if he or she chooses to do so.19

    18 For example, a “delay” response may mean that further research is required because potentially prohibitive criteria exist, but the matched records are incomplete. See Federal Bureau of Investigation (FBI) Fact Sheet, available at: www.fbi.gov/about-us/cjis/nice/general-information/fact-sheet.

    19 Some States have waiting periods that also must be complied with before a firearm may be transferred, regardless of whether a proceed response from the NICS is received by the FFL within 3 business days.

    The Proposed Rule

    The regulatory changes in this proposed rule fall into three general categories: (1) Identifying relevant records and reporting pertinent information to the NICS, (2) oral and written notification to our title II and title XVI beneficiaries who meet the requisite criteria, and (3) establishing a program that permits our beneficiaries who meet the requisite criteria to apply for relief from the firearms prohibition imposed by 18 U.S.C. 922(d)(4) or (g)(4) by virtue of our adjudication.20

    20 Section 101(c)(2)(A)(iii) of the NIAA specifies that relief and judicial review with respect to the “relief from disabilities” program shall be available according to the standards prescribed in 18 U.S.C. 925(c). In these rules, we will refer to this program as the “relief from firearm prohibitions” program in order to avoid any possible confusion with our disability programs.

    Identifying Relevant Records and Reporting Pertinent Information to the NICS

    To comply with the requirements of the NIAA, we propose to identify, on a prospective basis, any title II or title XVI beneficiary whom we are required to report for inclusion in the NICS because that person is subject to the Federal mental health prohibitor as a result of our adjudication. Under the governing regulations, the Federal mental health prohibitor applies when there has been a “determination by a court, board, commission, or other lawful authority that a person, as a result of marked subnormal intelligence, or mental illness, incompetency, condition, or disease: (1) Is a danger to himself or to others; or (2) Lacks the mental capacity to contract or manage his own affairs.” 21 This regulation therefore contains three operative components. First, there must be a determination by a “lawful authority.” Second, the adjudication must concern (as relevant to our programs) an individual's inability to manage his or her own affairs. Third, the adjudication regarding the inability to manage an individual's affairs must be based on “marked subnormal intelligence or mental illness, incompetency, condition or disease.”

    21 27 CFR 478.11.

    There are several relevant observations regarding the application of these three factors to our adjudication process. First, our determination regarding an individual's claim for benefits, specifically our determination regarding the appointment of a representative payee, which we make in accordance with the authority granted to the Commissioner under the Act, constitutes a determination by a “lawful authority.” 22 Second, the regulation's focus on an individual's lack of “mental capacity to contract or manage his or her own affairs” makes our appointment of a representative payee the determination that makes a person subject to the Federal mental health prohibitor.23 The DOJ Guidance discussed above makes that point clear, specifying that relevant records for the Federal mental health prohibitor include “certain agency designations of representative or alternate payees for program beneficiaries.” As we discuss in more detail below, once we have determined that an individual is disabled, we may need to decide whether he or she is capable of managing his or her benefits, or whether his or her interest would be served by the appointment of a representative payee.24 Finally, the regulation requires that the individual lack the mental capacity to manage his or her own affairs “as a result of marked subnormal intelligence, or mental illness, incompetency, condition, or disease.” Consequently, the basis for the individual's inability to manage his or her own affairs must therefore be the “result of” his or her mental impairment. As a result, individuals whom we are required to report to NICS will be a subset of the universe of individuals for whom we have appointed a representative payee.

    22 See 42 U.S.C. 405(b)(1), 1383(c)(1)(A) (directing the Commissioner to “make findings of fact, and decisions as to the rights of any individual applying for a payment” under titles II and XVI of the Act), 902(a)(4) (providing that the Commissioner “shall be responsible for the exercise of all powers and the discharge of all duties of the Administration, and shall have authority and control over all personnel and activities thereof.”).

    23 See 42 U.S.C. 405(j)(1)(A), 1383(a)(2)(A)(ii); 20 CFR 404.2010(a), 416.610(a).

    24Id.

    We recognize that there is no perfect fit between: (1) Our adjudication regarding a claimant's entitlement to benefits and determination of whether to designate a representative payee; and (2) the regulatory definition of an individual who is subject to the Federal mental health prohibitor. Considering the relevant regulatory factors, discussed above, however, we believe that there is a reasonable and appropriate fit between the criteria we use to decide whether some of our beneficiaries are disabled and require a representative payee and the Federal mental health prohibitor. Accordingly, we propose that, during the title II or title XVI claim development and adjudication process, or when we take certain post-entitlement or post-eligibility actions, we will identify individuals who: (1) Filed a claim based on disability; (2) we have determined to be disabled based on a finding at step three of our sequential evaluation process that the individual's impairment(s) meets or medically equals the requirements of one of the Mental Disorders Listing of Impairments (Listings) (12.00 et seq.); 25 (3) have a primary diagnosis code in our records that is based on a mental impairment; 26 (4) have attained age 18, but have not yet attained full retirement age; and (5) require their benefit payments to be made through a representative payee because we have found that they are incapable of managing benefit payments.

    25See 20 CFR 404.1520(a)(4)(iii), 404.1520(d), 404.1525, 404.1526, 416.920(a)(4)(iii), 416.920(d), 416.925, 416.926. The Listings are found in 20 CFR part 404, subpart P, appendix 1.

    26 The relevant diagnosis codes are: Listing 12.02: 2940 (Organic Mental Disorders); Listing 12.03: 2950 (Schizophrenic, Paranoid and Other Psychotic Disorders); Listing 12.04: 2960 (Affective Disorders); Listing 12.05: 3180 (Intellectual Disability); Listing 12.06: 3000 (Anxiety-Related Disorders); Listing 12.07: 3060 (Somatoform Disorders); Listing 12:08: 3010 (Personality Disorders); and Listing 12.10: 2990 (Autistic Disorders and Other Pervasive Developmental Disorders). See Program Operations Manual System (POMS) DI 26510.015G (available at: https://secure.ssa.gov/apps10/poms.nsf/lnx/0426510015); DI 28084.035A (available at: https://secure.ssa.gov/apps10/poms.nsf/lnx/0428084035). If we find a claimant's borderline intellectual functioning to be of listing-level severity, we will use the code 3195 and base the appropriate listing category for our finding of medical equivalence on a consideration of all the cognitive and behavioral manifestations in the particular claim. POMS DI 26510.015G.

    We propose to include the first four factors in order to help us identify individuals for whom our determination is the “result of” his or her mental impairment, and not because of another factor, such as the individual's age or physical impairment. The final factor, our appointment of a representative payee, focuses on the second factor under the applicable regulations, the individual's inability to manage his or her affairs.27

    27 Our choice of an age criterion—individuals who have attained age 18, but have not yet attained full retirement age—also reflects the fact that when we appoint a representative payee for individuals at full retirement age or older, we do not obtain the type of medical evidence that would allow us to determine whether the inability to manage their benefit payments is as a result of a mental impairment or for some other reason.

    We propose to include the existence of a Listing-level mental impairment as one of the criteria for our reporting to the NICS because the existence of such an impairment best identifies those beneficiaries who are unable to manage their affairs as a result of their mental impairment, and are therefore subject to the Federal mental health prohibitor. We use a five-step sequential evaluation process to decide if an individual who has filed a claim for benefits is disabled.28 At the third step of that process, we decide whether the individual has an impairment, or combination of impairments, that meets or medically equals the requirements of an impairment in the Listings.29 The Listings describe, for each of the major body systems, impairments that we consider severe enough to prevent an individual from doing any gainful activity, regardless of his or her age, education, or work experience.

    28 20 CFR 404.1520(a), 416.920(a). When we perform a continuing disability review, we use a separate sequential evaluation process to decide if a beneficiary continues to be disabled. 20 CFR 404.1594(f), 416.994(b)(5).

    29 In the sequential evaluation process we use to determine an individual's continuing eligibility, we consider whether the individual's medically determinable impairment(s) meets or medically equals the requirements of the Listings at the second step of the process in title II claims, and at the first step of the process in title XVI claims. 20 CFR 404.1594(f)(2), 416.994(b)(5)(i).

    Most body system sections in the Listings contain two parts: An introduction and the specific listings. The introduction to each body system contains information relevant to the use of the listings in that body system; for example, examples of common impairments in the body system and definitions used in the listings for that body system. The introductory section also may include specific criteria for establishing a diagnosis, confirming the existence of an impairment, or establishing that an impairment(s) satisfies the criteria of a particular listing in the body system. The specific listings follow the introduction in each body system. Within each listing, we specify the objective medical evidence and other findings needed to satisfy the criteria of that Listing.30

    30 20 CFR 404.1525(c), 416.925(c).

    The Listings help us ensure that determinations or decisions of disability have a sound medical basis, that claimants receive equal treatment throughout the country, and that we can readily identify the majority of persons who are disabled. The level of severity described in the Listings—the inability to perform any gainful activity—is such that an individual who is not engaging in substantial gainful activity and who has an impairment that meets or medically equals the requirements of the Listings is generally considered unable to work by reason of the medical impairment alone.31 Thus, individuals who have a Listing-level impairment are the most severely disabled beneficiaries we serve. In our view, given the medical severity of a Listing-level impairment, using our award of benefits based on the mental disorders listings, combined with the appointment of a representative payee, as part of the criteria we use to identify individuals for reporting to the NICS most appropriately identifies beneficiaries who are subject to the Federal mental health prohibitor in a manner consistent with the congressional purpose expressed in the NIAA.

    31 Social Security Ruling (SSR) 86-8 (available at: https://ssa.gov/OP_Home/rulings/di/01/SSR86-08-di-01.html).

    We acknowledge that we are not proposing to identify and report for inclusion in the NICS those individuals for whom we have appointed a representative payee after a finding of disability at step five of our sequential evaluation process. At step five of the sequential evaluation process we decide whether an individual can perform a significant number of jobs that exist in the national economy considering his or her age, education, past work experience, and residual functional capacity.32 In contrast to a step three finding of disability, which focuses on medical severity as established by objective criteria, a step five finding of disability takes into account vocational factors and depends on an assessment of the number of jobs in the economy that a person can perform. For the reasons discussed above, we believe that including individuals whom we have determined to have a Listing-level mental impairment (and who meet the other criteria that we propose), most closely comports with the requirements of the NIAA, the regulatory definition of the Federal mental health prohibitor, and the DOJ Guidance. However, we recognize that applying the proposal to beneficiaries who are found disabled at step five of our sequential evaluation process may also be a reasonable interpretation of the NIAA, its implementing regulations, and the DOJ Guidance, as applied to our programs. Therefore, during the comment period for this NPRM, we invite comment on the possible benefits and limitations of applying the proposal to beneficiaries who are found disabled based on a finding at step five of our sequential evaluation process. Further, we invite comment on the possible manner in which we could implement the proposal with respect to these beneficiaries in a manner that is least disruptive to our ability to process claims and deliver services to the public. We will consider the comments we receive on this issue, and determine whether to include these beneficiaries in our reporting to the NICS. If we decide to include beneficiaries who are found disabled at step five of our sequential evaluation process in our reporting to the NICS, we will respond to the comments and explain our reasons for doing so in any final rule, and make appropriate modifications to the regulatory language in the final rule.

    32See 20 CFR 404.1520(a)(4)(v), 404.1520(g), 416.920(a)(4)(v), 416.920(g).

    The information about the individual that we propose to report for inclusion in the NICS would consist of his or her: (1) Name, (2) full date of birth, (3) sex, and (4) Social Security number. We propose to provide the pertinent information about individuals meeting the proposed criteria to the Attorney General for inclusion in the NICS on not less than a quarterly basis. We also propose to provide information regarding these individuals on a prospective basis. That means we would report individuals to the Attorney General for inclusion in the NICS based on representative payee determinations meeting the 18 U.S.C. 922(g)(4) requirements, that we make on or after the effective date of any final rule.

    In addition, if we conduct a continuing disability review (including an age-18 disability redetermination) in an individual's case and determine, on or after the effective date of any final rule, that the individual meets the criteria for inclusion in the NICS, we would also report that individual for inclusion in the NICS. That means that we would report an individual for inclusion in the NICS after a continuing disability review if we appoint a representative payee for the person because he or she is incapable of managing benefit payments as a result of a primary mental impairment that meets or medically equals the requirements of one of the Mental Disorders Listings. We would do so even if we originally determined that the individual did not require a representative payee because of his or her mental impairment before the effective date of any final rule.

    Oral and Written Notification to Beneficiaries

    Under our representative payee policy, unless direct payment is prohibited, we presume that an adult beneficiary is capable of managing or directing the management of benefits. However, if we have information that the beneficiary has a mental or physical impairment that prevents him or her from managing or directing the management of benefits, we will develop the issue of capability.33 If a beneficiary has a mental impairment, we will develop the capability issue if there is an indication that the beneficiary may lack the ability to reason properly, is disoriented, has seriously impaired judgment, or is unable to communicate with others.34

    33 POMS GN 00502.020 (available at: https://secure.ssa.gov/apps10/poms.nsf/lnx/0200502020). Under our policy, we prohibit legally incompetent beneficiaries and children under age 15 from receiving benefits directly. In these cases, we will appoint a representative payee. POMS GN 00502.005A (available at: https://secure.ssa.gov/apps10/poms.nsf/lnx/0200502005).

    34 POMS GN 00502.020A.2.

    It is also important to remember that we can reevaluate a beneficiary's capability even though we may have already determined a beneficiary's capability in the past. We are always alert to changes in circumstances that might indicate the need for a new capability determination. For example, a once incapable beneficiary who requests direct payment may now be capable, or a once capable beneficiary who is admitted to a mental hospital may now be incapable. We consider reviewing capability in a number of situations, including: When we perform a continuing disability review or an SSI redetermination (including an age-18 disability redetermination), when we discover that a beneficiary manages any other benefits that he or she may be entitled to, when a beneficiary appeals the appointment of a payee, and when any other contact with the beneficiary or payee raises a question about the beneficiary's capability.35

    35 POMS GN 00502.020A.6.

    We base our determination of whether to pay a beneficiary directly or through a representative payee on evidence provided to us.36 When we adjudicate an individual's capability, we consider anything that helps us understand the beneficiary's ability to manage funds.37 Usually, we characterize evidence of capability as one of three types. First, we consider legal evidence; legal evidence is required only where there is an allegation that the beneficiary is legally incompetent.38 Second, we consider medical evidence; whenever possible, we will obtain medical evidence that indicates the beneficiary cannot manage or direct someone else to manage his or her benefits. Third, we consider lay evidence; in the absence of legal evidence, we will obtain lay evidence in all cases. If legal evidence establishes that the beneficiary is incompetent to manage or direct someone else to manage his or her benefits, the beneficiary must receive benefits through a representative payee, and no other development is necessary. Otherwise, we will make a capability determination based on lay and medical evidence.39

    36 See 20 CFR 404.2015, 416.625.

    37 POMS GN 00502.020B.

    38 POMS GN 00502.005A.2 (available at: https://secure.ssa.gov/apps10/poms.nsf/lnx/0200502005). Under our policy, there must be a court order in place for a finding that an individual is incompetent. The appointment of a legal guardian alone does not necessarily mean the beneficiary is legally incompetent. The court order must specifically address the beneficiary's competency or must contain a statement regarding the individual's ability to handle his or her financial affairs. If the court order does not specify incompetency, we may use the Digest of State Guardianship Laws found in POMS GN 00502.300 (available at: https://secure.ssa.gov/apps10/poms.nsf/lnx/0200502300) to help determine if the court order represents a finding of legal incompetence, or we may call the court for clarification. Id.

    39 POMS GN 00502.020B. We explain how we consider legal evidence of capability in POMS GN 00502.005 (available at: https://secure.ssa.gov/apps10/poms.nsf/lnx/0200502005). We explain how we consider medical evidence of capability in POMS GN 00502.025 (available at: https://secure.ssa.gov/apps10/poms.nsf/lnx/0200502025). We explain how we consider lay evidence of capability in POMS GN 00502.030 (available at: https://secure.ssa.gov/apps10/poms.nsf/lnx/0200502030).

    The NIAA requires any Federal department or agency that conducts proceedings to adjudicate a person as subject to the Federal mental health prohibitor to provide the person with both oral and written notice of several things at the commencement of the adjudication process.40 Consistent with the NIAA, the oral and written notice we propose to provide would advise the affected individual of the following: (1) The adjudication, when final, will prohibit him or her from purchasing, shipping, transporting, receiving, or possessing firearms and ammunition, pursuant to 18 U.S.C. 922(d)(4) and (g)(4); (2) any person who knowingly violates these restrictions may be imprisoned for up to 10 years or fined up to $250,000, or both; and (3) relief from the Federal firearms prohibitions imposed by 18 U.S.C. 922(d)(4) and (g)(4) as a result of our adjudication is available to the individual.

    40 Section 101(c)(3) of the NIAA, 121 Stat. at 2564.

    For our purposes, we consider the commencement of the adjudication process to mean the beginning of the capability determination process described above.41 Under these proposed rules, we would provide oral and written notice to the beneficiary after we have determined that he or she meets the medical requirements for disability based on a finding that his or her impairment(s) meets or medically equals the requirements of the Mental Disorders Listings, but before we find that he or she requires a representative payee. We recognize that this means we would provide some beneficiaries with the oral and written notice required by the NIAA, but ultimately not report them to the NICS because we determine that they do not require representative payees. We believe that the NIAA requires this result. Section 101(c)(3)(A) of the NIAA specifically states that an agency must provide oral and written notice that, “should the agency adjudicate the person as a mental defective,” the adjudication, “when final, will prohibit the individual from purchasing, possessing, receiving, shipping, or transporting a firearm or ammunition.” (Emphasis added). The statutory language clearly indicates that Congress intended for us to provide the oral and written notice before we actually find that an individual needs a representative payee.

    41 We recognize that, for purposes of reporting an individual to NICS, the “commencement of the adjudication process” differs from the meaning that we would attribute to that phrase in the context of our disability determination process. As we discuss here, for the purpose of these proposed rules, the commencement of the adjudication process refers to the commencement of the process we use to determine whether an individual requires a representative payee, after we have determined the individual to be disabled based on a finding at step three of our sequential evaluation process that the individual's impairment(s) meets or medically equals the requirements of one of the Mental Disorders Listing of Impairments.

    Program for Relief

    Section 101(a)(2)(A) of the NIAA requires a Federal agency that makes any adjudication related to the mental health of a person to establish a program that permits a person to apply for relief from the firearms prohibitions imposed by 18 U.S.C. 922(g)(4). We propose to allow a person who is subject to the Federal mental health prohibitor because he or she meets the criteria in § 421.110(b) to apply for relief from the Federal firearms prohibitions imposed as a result of our adjudication.

    We propose to provide these individuals with a process by which they can apply for relief from the Federal firearms prohibitions and a means to submit evidence for us to consider. As required by the NIAA, this request for relief process would focus on whether the circumstances regarding the disability, and the applicant's record and reputation, are such that we find the applicant will not be likely to act in a manner dangerous to public safety, and that the granting of the relief would not be contrary to the public interest.42 To make these required findings, we propose to require the individual who requests relief to provide us with certain evidence, including evidence from his or her primary mental health provider regarding his or her current mental health status and mental health status for the past 5 years. We also propose to require an applicant for relief to submit written statements and any other evidence regarding the applicant's reputation. As part of the relief process, we would also obtain a criminal history report on the applicant.

    42 Section 101(c)(2)(A)(iii) of the NIAA, 121 Stat. at 2563; see 18 U.S.C. 925(c).

    After the applicant submits the evidence required under the rules, a decision maker who was not involved in finding that the applicant's benefit payments must be made through a representative payee would review the evidence and act on the request for relief. We would notify the applicant in writing of our action regarding the request for relief.

    Section 101(c)(2)(A)(iii) of the NIAA specifies 43 that relief and judicial review with respect to the relief program shall be available according to the standards prescribed in 18 U.S.C. 925(c). Section 925(c), in turn, provides that any person whose application for relief is denied may file a petition for a judicial review of the denial with the United States district court for the district in which he or she resides. The court may, in its discretion, admit additional evidence where failure to do so would result in a miscarriage of justice. Consistent with the standards contained in 18 U.S.C. 925(c), we propose to include in the regulation a provision that the individual may seek judicial review when we deny his or her request for relief through the filing of a petition for relief in the United States district court for the district in which the individual resides.

    43 121 Stat. at 2563.

    Regulatory Procedures Executive Order 12866

    We have consulted with the Office of Management and Budget (OMB) and determined that these proposed rules meet the requirements for a significant regulatory action under Executive Order 12866 and were subject to OMB review.

    Regulatory Flexibility Act

    We certify that these proposed rules would not have a significant economic impact on a substantial number of small entities because they only affect individuals. Therefore, a regulatory flexibility analysis is not required under the Regulatory Flexibility Act, as amended.

    Paperwork Reduction Act

    These proposed rules pose new public reporting burdens in § 421.150(b), 421.151(b)(1) and (2) and (c)(1) through (3), 421.152(b), and 421.165(b). Since we will create new forms for these requirements, we will solicit public comment for them in a separate future notice in the Federal Register as part of the Paperwork Reduction Act process.

    (Catalog of Federal Domestic Program Nos. 96.001, Social Security—Disability Insurance; 96.002, Social Security—Retirement Insurance; 96.004, Social Security—Survivors Insurance, and 96.006, Supplemental Security Income) List of Subjects

    Administrative practice and procedure, Freedom of information, Privacy, Reporting and recordkeeping requirements.

    Carolyn W. Colvin, Acting Commissioner of Social Security. For the reasons set out in the preamble, we propose to add part 421 to chapter III of title 20 of the Code of Federal Regulations to read as follows: PART 421—NATIONAL INSTANT CRIMINAL BACKGROUND CHECK SYSTEM (NICS) Sec. 421.100 What is this part about? 421.105 Definitions of terms used in this part. 421.110 Identifying records relevant to the NICS. 421.120 NICS reporting requirements. 421.140 Notice requirements for an affected individual. 421.150 Requesting relief from the Federal firearms prohibitions. 421.151 Evidentiary requirements and processing a request for relief. 421.152 Time limits to provide evidence supporting a request for relief. 421.155 Burden of proof in requests for relief. 421.160 Granting a request for relief. 421.165 Actions on a request for relief. 421.170 Judicial review following a denial of a request for relief. Authority:

    Section 702(a)(5) of the Social Security Act (42 U.S.C. 902(a)(5)); sec. 101, Public Law 110-180, 121 Stat. 2559, 2561 (18 U.S.C. 922 note).

    § 421.100 What is this part about?

    The rules in this part relate to the Brady Handgun Violence Prevention Act (Brady Act), as amended by the NICS Improvement Amendments Act of 2007 (NIAA) (Pub. L. 110-180). The Brady Act required the Attorney General to establish the National Instant Criminal Background Check System (NICS), which allows a Federal firearms licensee to determine whether the law prohibits a potential buyer from possessing or receiving a firearm. Among other things, the NIAA requires a Federal agency that has any records demonstrating that a person falls within one of the categories in 18 U.S.C. 922(g) or (n) to report the pertinent information contained in the record to the Attorney General for inclusion in the NICS. The rules in this part define key terms and explain which records we will report to the NICS. They also explain how we will provide oral and written notification to our title II and title XVI beneficiaries who meet the requisite criteria. Finally, the rules in this part explain how beneficiaries who meet the requisite criteria may apply for relief from the Federal firearms prohibitions, and how we will process a request for relief.

    § 421.105 Definitions of terms used in this part.

    For the purposes of this part:

    Adjudicated as a mental defective, in accordance with 18 U.S.C. 922(g)(4), as amended, means a determination by a court, board, commission, or other lawful authority that a person, as a result of marked subnormal intelligence, or mental illness, incompetency, condition, or disease: Is a danger to himself or others; or lacks the mental capacity to contract or manage his own affairs.

    Affected individual means an individual:

    (1) Who has been found disabled based on a finding that the individual's impairment(s) meets or medically equals the requirements of one of the Mental Disorders Listing of Impairments (sections 12.00 through 12.10 of appendix 1 to subpart P of part 404 of this chapter) under the rules in part 404, subpart P of this chapter, or under the rules in part 416, subpart I of this chapter; and

    (2) For whom we need to make a capability finding under the rules in part 404, subpart U of this chapter, or under the rules in part 416, subpart F of this chapter, and that finding is the result of marked subnormal intelligence, or mental illness, incompetency, condition or disease.

    Commencement of the adjudication process means, with respect to an affected individual, the beginning of the process we use to determine whether, as a result of a mental impairment:

    (1) An individual is capable of managing his or her own benefits; or

    (2) Whether his or her interests would be better served if we certified benefit payments to another person as a representative payee, under the rules in part 404, subpart U of this chapter, or the rules in part 416, subpart F of this chapter.

    Full retirement age has the meaning used in § 404.409 of this chapter.

    NICS means the National Instant Criminal Background Check System established by the Brady Handgun Violence Prevention Act, Public Law 103-159, 107 Stat. 1536 (codified at 18 U.S.C. 922 note), as amended.

    Primary diagnosis code means the code we use to identify an individual's primary medical diagnosis in our records. The primary diagnosis refers to the basic condition that renders an individual disabled under the rules in part 404, subpart P of this chapter, or under the rules in part 416, subpart I of this chapter.

    Us or We means the Social Security Administration.

    § 421.110 Identifying records relevant to the NICS.

    (a) In accordance with the requirements of the NIAA, we will identify the records of individuals whom we have “adjudicated as a mental defective.” For purposes of the Social Security programs established under titles II and XVI of the Social Security Act, we have “adjudicated as a mental defective” any individual who meets the criteria in paragraphs (b)(1) through (5) of this section.

    (b) During our claim development and adjudication process, or when we take certain post-entitlement or post-eligibility actions, we will identify any individual who:

    (1) Has filed a claim based on disability;

    (2) Has been determined to be disabled based on a finding that the individual's impairment(s) meets or medically equals the requirements of one of the Mental Disorders Listing of Impairments (sections 12.00 through 12.10 of appendix 1 to subpart P of part 404 of this chapter) under the rules in part 404, subpart P of this chapter, or under the rules in part 416, subpart I of this chapter;

    (3) Has a primary diagnosis code in our records based on a mental impairment;

    (4) Has attained age 18, but has not attained full retirement age; and

    (5) Requires that his or her benefit payments be made through a representative payee because we have determined, under the rules in part 404, subpart U of this chapter, or the rules in part 416, subpart F of this chapter, that he or she is incapable of managing benefit payments as a result of marked subnormal intelligence, or mental illness, incompetency, condition or disease.

    (c) We will apply the provisions of this section to:

    (1) Capability findings that we make in connection with initial claims on or after [EFFECTIVE DATE OF THE FINAL RULE] under the rules in part 404, subpart U of this chapter or the rules in part 416, subpart F of this chapter, or

    (2) Capability findings that we make in connection with continuing disability reviews (including age-18 disability redeterminations under § 416.987 of this chapter) on or after [EFFECTIVE DATE OF THE FINAL RULE] under the rules in part 404, subpart U of this chapter, or the rules in part 416, subpart F of this chapter. We will apply the provisions of this paragraph only with respect to capability findings in which we appoint a representative payee for an individual in connection with a continuing disability review.

    § 421.120 NICS reporting requirements.

    On not less than a quarterly calendar basis, we will provide information about any individual who meets the criteria in § 421.110 to the Attorney General, or his or her designate, for inclusion in the NICS. The information we will report includes the name of the individual, his or her full date of birth, his or her sex, and his or her Social Security number. We will also report any other information that the Attorney General determines Federal agencies should report to the NICS.

    § 421.140 Notice requirements for an affected individual.

    At the commencement of the adjudication process, we will provide both oral and written notice to an affected individual that:

    (a) A finding that he or she meets the criteria in § 421.110(b)(1) through (5), when final, will prohibit the individual from purchasing, possessing, receiving, shipping, or transporting firearms and ammunition, pursuant to 18 U.S.C. 922(d)(4) and (g)(4);

    (b) Any person who knowingly violates the prohibitions in 18 U.S.C. 922(d)(4) or (g)(4) may be imprisoned for up to 10 years or fined up to $250,000, or both, pursuant to 18 U.S.C. 924(a)(2); and

    (c) Relief from the Federal firearms prohibitions imposed by 18 U.S.C. 922(d)(4) and (g)(4) by virtue of our adjudication is available under the NIAA.

    § 421.150 Requesting relief from the Federal firearms prohibitions.

    (a) If we report an individual to the NICS based on a finding that he or she meets the criteria in § 421.110(b)(1) through (5), the individual may apply for relief from the Federal firearms prohibitions imposed by Federal law as a result of our adjudication. If such an individual requests relief from us, we will apply the rules in §§ 421.150 through 421.165.

    (b) An application for relief filed under this section must be in writing and include the information required by § 421.151. It may also include any other supporting data that we or the applicant deems appropriate. When an individual requests relief under this section, we will also obtain a criminal history report on the individual before deciding whether to grant the request for relief.

    § 421.151 Evidentiary requirements and processing a request for relief.

    (a) When we decide whether to grant an application for relief, we will consider:

    (1) The circumstances regarding the firearms prohibitions imposed;

    (2) The applicant's record, which must include the applicant's mental health records and a criminal history report; and

    (3) The applicant's reputation, developed through witness statements or other evidence.

    (b) Evidence. The applicant must provide the following evidence to us in support of a request for relief:

    (1) A current statement from the applicant's primary mental health provider assessing the applicant's current mental health status and mental health status for the 5 years preceding the date of the request for relief; and

    (2) Written statements and any other evidence regarding the applicant's reputation.

    (c) Evidentiary requirements—(1) A current statement from the applicant's primary mental health provider submitted under paragraph (b)(1) of this section. We will consider a statement from the applicant's primary mental health provider to be current if it is based on a complete mental health assessment that was conducted during the 90-day period immediately preceding the date we received the applicant's request for relief under paragraph (b)(1) of this section. The statement must specifically address:

    (i) Whether the applicant has ever been a danger to himself or herself or others; and

    (ii) Whether the applicant would pose a danger to himself or herself or others if we granted the applicant's request for relief and the applicant purchased and possessed a firearm or ammunition.

    (2) Written statements regarding the applicant's character submitted under paragraph (b)(2) of this section. The statements must specifically:

    (i) Identify the person supplying the information;

    (ii) Provide the person's current address and telephone number;

    (iii) Describe the person's relationship with and frequency of contact with the applicant;

    (iv) Indicate whether the applicant has a reputation for violence in the community; and

    (v) Indicate whether the applicant would pose a danger to himself or herself or others if we granted the applicant's request for relief and the applicant purchased and possessed a firearm or ammunition.

    (3) The applicant may obtain written statements from anyone who knows the applicant, including but not limited to clergy, law enforcement officials, employers, friends, and family members, as long as the person providing the statement has known the applicant for a sufficient period, has had recent and frequent contact with the beneficiary, and can attest to the beneficiary's good reputation. The individual submitting the written statement must describe his or her relationship with the applicant and provide information concerning the length of time he or she has known the applicant and the frequency of his or her contact with the applicant. The applicant must submit at least one statement from an individual who is not related to the applicant by blood or marriage.

    § 421.152 Time limits to provide evidence supporting a request for relief.

    (a) An applicant has 30 days after the date on which he or she submits a request for relief under § 421.150 to provide us with the evidence required under § 421.151(b)(1) through (3).

    (b) An applicant may ask us for more time to submit evidence under paragraph (a) of this section. The request for an extension of time must be in writing and must give the reasons why the applicant cannot give us the required evidence within the 30-day period. If the applicant shows us that he or she had good cause for missing the deadline, we will extend the 30-day period. To determine whether good cause exists, we use the standards explained in § 404.911 of this chapter.

    (c) If the applicant does not submit the evidence required under § 421.151 within the 30-day period provided under paragraph (a) of this section, or within the extended period provided under paragraph (b) of this section, we will dismiss the request for relief.

    § 421.155 Burden of proof in requests for relief.

    An applicant who requests relief under § 421.150 must prove that he or she is not likely to act in a manner dangerous to public safety and that granting relief from the prohibitions imposed by 18 U.S.C. 922(d)(4) and (g)(4) will not be contrary to the public interest.

    § 421.160 Granting a request for relief.

    (a) We may grant an applicant's request for relief if the applicant establishes, to our satisfaction, that the circumstances regarding the disability, and the applicant's record and reputation, are such that the applicant will not be likely to act in a manner dangerous to public safety, and that the granting of the relief would not be contrary to the public interest.

    (b) We will not grant an applicant's request for relief if the applicant is prohibited from possessing firearms by the law of the State in which the applicant resides.

    § 421.165 Actions on a request for relief.

    (a) After the applicant submits the evidence required under § 421.151 and any other evidence he or she wants us to consider, we will review the evidence, which will include any evidence from our records that we determine is appropriate. A decision maker who was not involved in making the finding that the applicant's benefit payments be made through a representative payee will review the evidence and act on the request for relief. We will notify the applicant in writing of our action regarding the request for relief.

    (b) If we deny an applicant's request for relief, we will send the applicant a written notice that explains the reasons for our action. We will also inform the applicant that if he or she is dissatisfied with our action, he or she has 60 days from the date he or she receives the notice of our action to file a petition seeking judicial review in Federal district court.

    (c) If we grant an applicant's request for relief, we will send the applicant a written notice that explains the reasons for our action. We will inform the applicant that we will notify the Attorney General, or his or her delegate, that the individual's record should be removed from the NICS database. We will also notify the applicant that he or she is no longer prohibited under 18 U.S.C. 922(g)(4) from purchasing, possessing, receiving, shipping, or transporting firearms or ammunition based on the prohibition that we granted the applicant relief from. We will notify the Attorney General, or his or her delegate, that the applicant's record should be removed from the NICS database after we grant the applicant's request for relief.

    (d) The NIAA requires us to process each application for relief not later than 365 days after the date we receive it. If we fail to resolve an application for relief within that period for any reason, including a lack of appropriated funds, we will be deemed to have denied the relief request without cause. In accordance with the NIAA, judicial review of any petition brought under this paragraph shall be de novo.

    § 421.170 Judicial review following a denial of a request for relief.

    (a) Judicial review of our action denying an applicant's request for review is available according to the standards contained in 18 U.S.C. 925(c). An individual for whom we have denied an application for relief may file a petition for judicial review with the United States district court for the district in which he or she resides.

    (b) If, on judicial review, a Federal court grants an applicant's request for relief, we will notify the Attorney General that the individual's record should be removed from the NICS database.

    [FR Doc. 2016-10424 Filed 5-4-16; 8:45 am] BILLING CODE 4191-02-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration 21 CFR Parts 11 and 101 [Docket No. FDA-2011-F-0172] A Labeling Guide for Restaurants and Retail Establishments Selling Away-From-Home Foods—Part II (Menu Labeling Requirements in Accordance With the Patient Protection Affordable Care Act of 2010); Guidance for Industry; Availability AGENCY:

    Food and Drug Administration, HHS.

    ACTION:

    Notification of availability.

    SUMMARY:

    The Food and Drug Administration (FDA or we) is announcing the availability of a guidance for industry entitled “A Labeling Guide for Restaurants and Retail Establishments Selling Away-From-Home Foods—Part II (Menu Labeling Requirements in Accordance With FDA's Food Labeling Regulations).” The guidance will help certain restaurants and similar retail food establishments comply with the menu labeling requirements, including the requirements to provide calorie and other nutrition information for standard menu items, including food on display and self-service food. In addition, we note that enforcement of the Nutrition Labeling of Standard Menu Items in Restaurants and Similar Retail Food Establishments final rule will commence 1 year after the date on which this document publishes in the Federal Register.

    DATES:

    Submit either electronic or written comments on FDA guidances at any time.

    ADDRESSES:

    You may submit comments as follows:

    Electronic Submissions

    Submit electronic comments in the following way:

    Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments. Comments submitted electronically, including attachments, to http://www.regulations.gov will be posted to the docket unchanged. Because your comment will be made public, you are solely responsible for ensuring that your comment does not include any confidential information that you or a third party may not wish to be posted, such as medical information, your or anyone else's Social Security number, or confidential business information, such as a manufacturing process. Please note that if you include your name, contact information, or other information that identifies you in the body of your comments, that information will be posted on http://www.regulations.gov.

    • If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).

    Written/Paper Submissions

    Submit written/paper submissions as follows:

    Mail/Hand delivery/Courier (for written/paper submissions): Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.

    • For written/paper comments submitted to the Division of Dockets Management, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”

    Instructions: All submissions received must include the Docket No. FDA-2011-F-0172 for “A Labeling Guide for Restaurants and Retail Establishments Selling Away-From-Home Foods—Part II (Menu Labeling Requirements in Accordance with 21 CFR 101.11).” Received comments will be placed in the docket and, except for those submitted as “Confidential Submissions,” publicly viewable at http://www.regulations.gov or at the Division of Dockets Management between 9 a.m. and 4 p.m., Monday through Friday.

    • Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” The Agency will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on http://www.regulations.gov. Submit both copies to the Division of Dockets Management. If you do not wish your name and contact information to be made publicly available, you can provide this information on the cover sheet and not in the body of your comments and you must identify this information as “confidential.” Any information marked as “confidential” will not be disclosed except in accordance with 21 CFR 10.20 and other applicable disclosure law. For more information about FDA's posting of comments to public dockets, see 80 FR 56469, September 18, 2015, or access the information at: http://www.fda.gov/regulatoryinformation/dockets/default.htm.

    Docket: For access to the docket to read background documents or the electronic and written/paper comments received, go to http://www.regulations.gov and insert the docket number, found in brackets in the heading of this document, into the “Search” box and follow the prompts and/or go to the Division of Dockets Management, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.

    Submit written requests for single copies of the guidance to Office of Nutrition and Food Labeling, Center for Food Safety and Applied Nutrition (HFS-820), Food and Drug Administration, 5100 Paint Branch Pkwy., College Park, MD 20740. Send two self-addressed adhesive labels to assist that office in processing your request. See the SUPPLEMENTARY INFORMATION section for electronic access to the guidance.

    FOR FURTHER INFORMATION CONTACT:

    Ashley Rulffes, Center for Food Safety and Applied Nutrition (HFS-820), Food and Drug Administration, 5100 Paint Branch Pkwy., College Park, MD 20740, 240-402-2371.

    SUPPLEMENTARY INFORMATION: I. Background

    We are announcing the availability of a guidance for industry, entitled “A Labeling Guide for Restaurants and Retail Establishments Selling Away-From-Home Foods—Part II (Menu Labeling Requirements in Accordance with 21 CFR 101.11).” We are issuing this guidance consistent with our good guidance practices regulation (21 CFR 10.115). The guidance represents the current thinking of FDA on this topic. It does not establish any rights for any person and is not binding on FDA or the public. You can use an alternative approach if it satisfies the requirements of the applicable statutes and regulations.

    In the Federal Register of September 16, 2015 (80 FR 55564), we announced the availability of a draft guidance for industry entitled “A Labeling Guide for Restaurants and Retail Establishments Selling Away-From-Home Foods—Part II (Menu Labeling Requirements in Accordance with 21 CFR 101.11).” We invited comment on the draft guidance by November 2, 2015.

    We received many comments on the draft guidance and have modified the guidance as appropriate by revising several questions and answers and adding new questions and answers. (The new questions and answers are at 5.5, 5.7, 5.11, 5.17, 5.35, 7.11, and 7.12.) Changes to the guidance include additional examples and explanations to clarify how the provisions of the rule would apply to various situations. The guidance announced in this document finalizes the draft guidance dated September 2015.

    II. Enforcement

    On December 18, 2015, the President signed the Consolidated Appropriations Act, 2016 (Pub. L. 114-113). Section 747 of the Consolidated Appropriations Act states that none of the funds made available under the Consolidated Appropriations Act may be used to implement, administer, or enforce the final rule entitled “Food Labeling; Nutrition Labeling of Standard Menu Items in Restaurants and Similar Retail Food Establishments” until 1 year after the date we publish a Level 1 guidance with respect to nutrition labeling of standard menu items in restaurants and similar retail food establishments. As a result, enforcement of the final rule published December 1, 2014 (79 FR 71156), will commence May 5, 2017.

    III. Paperwork Reduction Act of 1995

    This guidance refers to previously approved collections of information found in FDA regulations. These collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). The collections of information in § 101.11(d), (c)(3), and (b)(2) have been approved under OMB control no. 0910-0783.

    IV. Electronic Access

    Persons with access to the Internet may obtain the guidance at either http://www.fda.gov/FoodGuidances* or http://www.regulations.gov. Use the FDA Web site listed in the previous sentence to find the most current version of the guidance.

    Dated: April 29, 2016. Leslie Kux, Associate Commissioner for Policy.
    [FR Doc. 2016-10462 Filed 5-4-16; 8:45 am] BILLING CODE 4164-01-P
    DEPARTMENT OF TRANSPORTATION Surface Transportation Board 49 CFR Part 1250 [Docket No. EP 724 (Sub-No. 4)] United States Rail Service Issues—Performance Data Reporting AGENCY:

    Surface Transportation Board (the Board or STB).

    ACTION:

    Supplemental notice of proposed rulemaking.

    SUMMARY:

    Through this Supplemental Notice of Proposed Rulemaking (SNPR), the Board is proposing to establish new regulations requiring all Class I railroads and the Chicago Transportation Coordination Office (CTCO), through its Class I members, to report certain service performance metrics on a weekly basis.

    DATES:

    Comments are due by May 31, 2016. Reply comments are due by June 28, 2016.

    ADDRESSES:

    Comments and replies may be submitted either via the Board's e-filing format or in the traditional paper format. Any person using e-filing should attach a document and otherwise comply with the instructions at the E-FILING link on the Board's Web site, at http://www.stb.dot.gov. Any person submitting a filing in the traditional paper format should send an original and 10 copies to: Surface Transportation Board, Attn: Docket No. EP 724 (Sub-No. 4), 395 E Street SW., Washington, DC 20423-0001.

    Copies of written comments and replies will be available for viewing and self-copying at the Board's Public Docket Room, Room 131, and will be posted to the Board's Web site. Copies will also be available (for a fee) by contacting the Board's Chief Records Officer at (202) 245-0238 or 395 E Street SW., Washington, DC 20423-0001.

    FOR FURTHER INFORMATION CONTACT:

    Allison Davis at (202) 245-0378. Assistance for the hearing impaired is available through the Federal Information Relay Service (FIRS) at (800) 877-8339.

    SUPPLEMENTARY INFORMATION:

    The Surface Transportation Board initiated this rulemaking proceeding in response to the service problems that began to emerge in the railroad industry in late 2013. Those service problems affected the transportation of a wide range of commodities, including grain, fertilizer, ethanol, coal, automobiles, chemicals, propane, consumer goods, crude oil, and industrial commodities.

    In response to the service challenges, the Board held two public hearings, in April 2014 in Washington, DC, and in September 2014 in Fargo, ND, to allow interested persons to report on service problems, to hear from rail industry executives on plans to address rail service problems, and to explore options to improve service. During and after these hearings, parties expressed concerns about the lack of publicly available information related to rail service and requested access to performance data from the railroads to better understand the scope, magnitude, and impact of the service issues,1 as well as the underlying causes and the prospects for recovery.

    1See generally National Grain and Feed Association Letter, U.S. Rail Serv. Issues, EP 724 (filed May 6, 2014); Western Coal Traffic League Letter, U.S. Rail Serv. Issues, EP 724 (filed Apr. 17, 2014); Apr. Hr'g Tr. 154-155, U.S. Rail Serv. Issues, EP 724 (Apr. 10, 2014); Western Coal Traffic League Statement 5-6, U.S. Rail Serv. Issues, EP 724 (filed Sept. 5, 2014); Sept. Hr'g Tr. 48, 290, U.S. Rail Serv. Issues, EP 724 (Sept. 4, 2014).

    Based on these concerns and to better understand railroad operating conditions, the Board issued an October 8, 2014 order requiring all Class I railroads and the Class I railroad members of the CTCO to file weekly reports containing specific performance data. See U.S. Rail Serv. Issues—Data Collection (Interim Data Order), EP 724 (Sub-No. 3) (STB served Oct. 8, 2014).2 Railroads were asked to report weekly average train speeds, weekly average terminal dwell times, weekly average cars online, number of trains held short of destination, and loading metrics for grain and coal service, among other information. The data were intended to give both the Board and its stakeholders access to near real-time information about the operations and performance of the Class I railroads and the fluidity of the Chicago gateway. In addition, the data were expected to assist rail shippers in making logistics decisions, planning operations and production, and mitigating potential losses.

    2 On motion of Canadian Pacific Railway Company, the Board modified the Interim Data Order by decision served on February 23, 2016, to allow it to discontinue reporting data related to the Rapid City, Pierre & Eastern Railroad, Inc.

    On October 22, 2014, the Class I railroads and the Association of American Railroads (AAR) (on behalf of the CTCO) filed the first set of weekly reports in response to the Interim Data Order. As requested by the Board, each carrier provided an explanation of its methodology for deriving performance data in response to each request. Generally, the reports corresponded to the elements of the Interim Data Order; however, some railroads approached individual requests differently, leading to variations in the reported data. The different approaches were due primarily to the railroads' disparate data-keeping systems, different railroad operating practices, and/or unintended ambiguities in certain requests. Certain railroads also departed from the Board's prescribed reporting in order to maintain consistency with their own weekly data runs and analyses. For the most part, however, railroads made reasonable efforts to respond to each request, substituting analogous data when the precise information requested could not readily be derived.

    The weekly filings have allowed the Board and its stakeholders to monitor the industry's performance and have allowed the Board to develop baseline data. Based on the Board's experience with the reporting to date, and as expressly contemplated in the Interim Data Order, the Board proposed new regulations for permanent reporting by the members of the Class I railroad industry and the CTCO, through its Class I members. See U.S. Rail Serv. Issues—Performance Data Reporting, EP 724 (Sub-No. 4) (STB served Dec. 30, 2014) (80 FR 473, January 6, 2015) (NPR).

    The proposed reporting requirements in the NPR include many of the requests contained in the Interim Data Order. The NPR proposes nine weekly metrics that would apply to Class I railroads: (1) System average train speed; (2) weekly average terminal dwell time; (3) weekly average cars online; (4) weekly average dwell time at origin or interchange; (5) weekly total number of loaded and empty trains held short of destination or scheduled interchange; (6) daily average number of loaded and empty cars operating in normal movement which have not moved in specified periods of time; (7) weekly total number of grain cars loaded and billed, by State; (8) total overdue car orders, average days late, total new orders in the past week, total orders filled in the past week, and number of orders cancelled in the past week; and (9) weekly total coal unit train loadings or carloadings by region. The NPR also proposes metrics pertaining to service in Chicago as well as reporting on major rail infrastructure projects. The NPR proposes to exempt Kansas City Southern Railway Company from filing state-specific information in response to Requests Nos. 7 and 8, due to the nature of its grain business and its very limited number of customers in a small number of states in its service territory.

    Following receipt of comments in response to the NPR, the Board issued an order announcing that it would waive its ex parte communications rules in order to allow Board staff to hold meetings with interested parties to develop a more complete record with regard to technical issues in this proceeding. See U.S. Rail Serv. Issues—Performance Data Reporting (Waiver Decision), EP 724 (Sub-No. 4) (STB served Nov. 9, 2015). As a result of the comments and meetings, the Board is issuing this SNPR to revise the proposed rule. A summary of the proposed changes are outlined in Table 1 in Appendix A of this decision.

    We will address one preliminary issue before summarizing the comments and explaining our proposed revisions to the NPR.

    Preliminary Matter

    On November 30, 2015, practitioners Thomas F. McFarland and Gordon P. MacDougall petitioned the Board to reconsider its Waiver Decision. McFarland and MacDougall had not previously participated in this proceeding, but assert an interest in future performance metrics in their roles as counsel before the Board. (Pet. 2.) They assert that the Waiver Decision is a departure from long-standing rules and that the Board does not have the authority to waive its prohibition against ex parte communication. (Pet. 3, 9) Alternatively, McFarland and MacDougall argue that the Board did not render findings adequate to waive its rules, citing 49 U.S.C. 10502, the statute dealing with the Board's exemption power. (Pet. 11.)

    On December 21, 2015, AAR filed a reply to the petition, arguing that the Waiver Decision complies with the Board's rules and all governing law. (AAR Reply 3, Dec. 21, 2015.) AAR states that although the Board's rules do generally prohibit ex parte communications, they also contemplate the Board's authority to waive those rules. AAR also cites the Board's regulations at 49 CFR 1100.3, pursuant to which the Board is to construe its rules liberally “to secure just, speedy and inexpensive determination of the issues presented.” (AAR Reply 3, Dec. 21, 2015.)

    Under 49 U.S.C. 1322(c) 3 and 49 CFR 1115.3(b), the Board will grant a petition for reconsideration only upon a showing that the prior action: (1) Will be affected materially because of new evidence or changed circumstances; or (2) involves material error. Allegheny Valley R.R.—Pet. for Declaratory Order, FD 35239, slip op. at 3 (STB served July 16, 2013). The Board finds that McFarland and MacDougall did not allege new evidence or changed circumstances and failed to demonstrate material error in the Waiver Decision.

    3 Formerly 49 U.S.C. 721. See Public Law 114-110, 3(a)(5), 129 Stat. 2228, 2228.

    The Board was well within its powers to hold individual meetings with interested parties in this proceeding. As stated in the Waiver Decision, slip op. at 2, the Board may waive its regulation on ex parte communication in appropriate proceedings. The Board is entitled to discretion in administering its own procedural rules as it deems necessary to resolve urgent transportation problems. See Am. Farm Lines v. Black Ball Freight Serv., 397 U.S. 532, 539 (1970) (citing the well-established proposition that “[i]t is always within the discretion of a court or an administrative agency to relax or modify its procedural rules adopted for the orderly transaction of business before it when in a given case the ends of justice require it.”). Likewise, there is no basis for the claim that the Board must justify a waiver of its rules by satisfying the exemption standards of 49 U.S.C. 10502, which applies to exemptions from statutory provisions, not Board regulations. Furthermore, the argument that the Board's ex parte prohibition arose from 1962 recommendations by the Administrative Conference of the United States (ACUS) is outdated. In 2014, ACUS reaffirmed a 1977 recommendation against a general prohibition on ex parte communications in informal rulemakings.4 Its recent recommendation reaffirmed its view that:

    4 The 1977 recommendation states:

    A general prohibition applicable to all agencies against the receipt of private oral or written communications is undesirable, because it would deprive agencies of the flexibility needed to fashion rulemaking procedures appropriate to the issues involved, and would introduce a degree of formality that would, at least in most instances, result in procedures that are unduly complicated, slow and expensive, and, at the same time, perhaps not conducive to developing all relevant information.

    Ex parte Communications in Informal Rulemaking Proceedings, 42 FR 54251, 54253 (Oct. 5, 1977).

    Ex parte communications, which may be oral or written, convey a variety of benefits to both agencies and the public. . . . These meetings can facilitate a more candid and potentially interactive dialogue of key issues and may satisfy the natural desire of interested persons to feel heard. In addition, if an agency engages in rulemaking in an area that implicates sensitive information, ex parte communications may be an indispensable avenue for agencies to obtain the information necessary to develop sound, workable policies.

    “Ex Parte” Communications in Informal Rulemaking Proceedings, 79 FR 35988, 35994 (June 25, 2014).

    The purpose of the Board's Waiver Decision is consistent with the reasons suggested by ACUS, in particular, to fashion procedures for informal rulemakings appropriate to the issues involved. The Waiver Decision also provided safeguards to ensure fairness and accessibility to parties. The Board put in place measures that permitted any interested party the opportunity to meet with Board staff, to review the substance of comments made in the individual meetings by reading summaries of the meetings posted on the Board's Web site, and to comment in response to the information contained in the meeting summaries. Accordingly, there is no basis for McFarland and MacDougall's claims of material error in the decision.5 The Petition for Reconsideration will be denied.

    5 Procedurally, the petition was not timely. The Waiver Decision stated that individual meetings would take place between November 16, 2015, and December 7, 2015; the meetings began on November 19, 2015. McFarland and MacDougall did not file their petition until November 30, 2015.

    Discussion of Comments and Supplemental Proposed Rules

    The following parties provided comments in this proceeding, either in the form of written submissions or oral comments during the ex parte meetings that were then summarized and posted by the Board, or both:

    Alliance for Rail Competition et al. (ARC); American Chemistry Council (ACC); Association of American Railroads (AAR); BASF Corporation (BASF); BNSF Railway Company (BNSF); Canadian Pacific Railway Company (CP); Chicago Metropolitan Agency for Planning (CMAP); CSX Transportation, Inc. (CSXT); Freight Rail Customer Alliance (FRCA); High Road Consulting, Ltd. (HRC); Kansas City Southern Railway Company (KCS); Thomas F. McFarland and Gordon P. MacDougall (McFarland and MacDougall); National Grain and Feed Association (NGFA); National Industrial Transportation League (NITL); Norfolk Southern Railway Company (NSR); South Dakota Corn Growers Association (SDCGA); The Fertilizer Institute (TFI); Texas Trading and Transportation Services, LLC, et al. (TTMS); The Honorable John Thune, Chairman, Senate Committee on Commerce, Science, and Transportation (Senator Thune); Union Pacific Railway Company (UP); U.S. Department of Agriculture (USDA); U.S. Department of Transportation (USDOT); and Western Coal Traffic League, et al. (WCTL).

    In response to the NPR and the invitation for stakeholder meetings, the Board received a significant volume of comments and proposals from stakeholders. We have carefully reviewed those comments and meeting summaries in order to identify both general themes regarding service reporting and better technical methods for collecting information. We now propose revised rules that we believe will be more helpful to the agency and the public.

    The NPR's proposal covers a broad set of railroad service metrics derived largely from the Interim Data Order requests, along with definitions and requirements governing those metrics.6 Below we generally summarize the comments received on the NPR, and we explain the changes now proposed in this SNPR. Although not all comments and recommendations have been adopted in the SNPR, we have worked to carefully consider the many comments, written and oral, that comprise this docket.

    6 With regard to Requests Nos. 7 and 8, KCS was not required to report information by State, but instead only system-wide data. See NPR, slip op. at 7.

    Reporting Week and Timing

    The NPR defines the reporting week as Sunday to Saturday with reports due the following Tuesday.

    Railroad Interests. The railroad interests generally request a Saturday through Friday reporting week. While several railroads support a Friday filing deadline, others would be amenable to maintaining the Interim Data Order's Wednesday deadline. (AAR Comments 18, March 2, 2015; NSR Comments 3-4, March 2, 2015; UP Comments 8-9, March 2, 2015; NSR Mtg. Summary 1; BNSF Mtg. Summary 3; UP Mtg. Summary 6.) CSXT requests that each carrier be permitted to define its own reporting week. (CSXT Comments 4, March 2, 2015.) CSXT also requests that the Board allow 12 months for the railroads to comply with any new data requirements. (Id. at 7.)

    Shipper Interests and Other Stakeholders. No comments provided.

    Revised Proposal. The Board proposes to modify the reporting week and day, as suggested by the railroad interests. Railroads advise that for internal data reporting and the reports made to AAR on a weekly basis, their reporting week runs from 12:01 a.m. Saturday through 11:59 p.m. Friday. They suggest that modifying the reporting week would require them to establish parallel reporting systems, which would be duplicative and potentially lead to confusion. They also stated that they have adopted processes to facilitate reporting under the Interim Data Order, which would be disrupted by the modification proposed in the NPR. The railroads also stress that having to submit the weekly reports to the Board on Tuesday would not allow sufficient time to review, process, and quality-check the data. Although several suggest a Friday reporting day, there was no opposition to maintaining the Interim Data Order's Wednesday reporting day. Shippers and other stakeholders voice no objection to the reporting week proposed here, or the Wednesday reporting day, and neither affects the substantive value of the data collected. Therefore, the Board proposes that the reporting day will be Wednesday for the preceding reporting week, measured from 12:01 a.m. Saturday through 11:59 p.m. Friday.

    Definition of Unit Train

    The NPR defined unit train as comprising 50 or more railcars of the same or similar type, carrying a single commodity in bulk.

    Railroad Interests. AAR and several railroads request clarification of the definition of “unit train” as used in the NPR. (AAR Comments 17, March 2, 2015; BNSF Comments 10, March 2, 2015; CSXT Comments 5-6, March 2, 2015; NSR Comments 4, March 2, 2015; UP Comments 9-10, March 2, 2015; AAR Mtg. Summary 2.) AAR explains that the proposed definition of unit train “would divorce service reporting from how railroads and their customers think about shipments in a commercial sense” and suggests that the Board instead rely on each railroad's unit train designations. (AAR Comments 17, March 2, 2015.) Similarly, UP argues that the definition should focus on the nature of the railroad's operation instead of the number of carloads in a train, which, it states, would align with how it does business. (UP Comments 11, March 2, 2015.) In response to the Interim Data Order, UP states that it relies on its train-category symbols to identify and classify trains, not the number of cars in a train. (Id. at 10-11.) UP also argues that the Board should substitute the term “trainload” for unit train. UP asserts that unit train implies a shuttle-type service and that using trainload would better reflect the diversity of movement types for bulk trains in non-manifest service. (Id. at 11-12.)

    Shipper Interests and Other Stakeholders. Shippers and other stakeholders generally agree that the definition of a unit train should be clarified. (NGFA Mtg. Summary 1-2; HRC Comments 4, Dec. 23, 2015.) NGFA states that it may be appropriate for each railroad to provide its own definition at the outset of reporting. (NGFA Mtg. Summary 2.)

    Revised Proposal. The Board proposes to withdraw the proposed definition of “unit train.” Based on written comments and individual meetings with stakeholders, we believe that a static definition of “unit train” for the service metric reporting could distort data reporting. Instead, the Board believes that the better course of action for service metric reporting here is to allow railroads to report unit train data based on how train symbols (or codes) are assigned in accordance with each railroad's operating practices.

    Requests No. 1 (Train Speed), No. 2 (Terminal Dwell Time), and No. 3 (Cars Online)

    Request No. 1 seeks system-average train speed, measured for line-haul movements between terminals and calculated by dividing total train-miles by total hours operated for: (a) Intermodal; (b) grain unit; (c) coal unit; (d) automotive unit; (e) crude oil unit; (f) ethanol unit; (g) manifest; and (h) all other. Request No. 2 asks for weekly average terminal dwell time, the average time a car resides at a specified terminal location expressed in hours, excluding cars on run-through trains (i.e., cars that arrive at, and depart from, a terminal on the same through train) for the carrier's system, as well as its 10 largest terminals in terms of railcars processed. Request No. 3 also seeks weekly average cars on line by the following car types for the reporting week: (a) Box; (b) covered hopper; (c) gondola; (d) intermodal; (e) multilevel (automotive); (f) open hopper; (g) tank; (h) other; and (i) total.

    Railroad Interests. The railroads do not oppose these data requests. Specifically, they note that the data sought in Requests Nos. 1-3 corresponds with data that six Class I railroads already make publicly available on a weekly basis through the AAR. (AAR Comments 8, 12, March 2, 2015; UP Comments 12, March 2, 2015.) They argue that Request Nos. 1-3, with the potential addition of a weekly carloadings metric would be sufficient to monitor overall network fluidity. (CP Comments 2, March 2, 2015; NSR Comments 2, March 2, 2015; UP Comments 4, 12, March 2, 2015.)

    Additionally, the railroads provide the Board with weekly carloading traffic reports covering 20 carload commodity categories and the two intermodal service types. (AAR Comments 13, March 2, 2015.) AAR asserts that this and other “available information and public metrics indicated to the Board early on that service was being disrupted and allowed the Board to focus on the relevant issues it needed to monitor” during the 2013-14 service disruptions. (Id. at 13.) AAR states that the Board should continue to monitor this information. (Id.) UP also suggests adding a system-average train speed component to Request No. 1 for all trains. (UP Comments 4, March 2, 2015.)

    Shipper Interests and Other Stakeholders. For Request No. 1, NGFA would expand the “grain unit” train category to include five subcategories. (NGFA Comments 6, March 2, 2015.) For Request No. 2, it would require that dwell times be broken down into four traffic categories. (Id.) BASF notes that the weekly average dwell time for each carrier's 10 largest terminals is a critical measurement; it uses the data to alter its production and movement. (BASF Mtg. Summary 1.) For Request No. 3, NGFA requests that the Board require carriers to delineate “tank cars” by cars used to haul hazmat and non-hazmat materials. (NGFA Comments 6, March 2, 2015.) NGFA also requests that the metric include a weekly summary of cars that are industry-placed (i.e., cars placed at industry for loading or unloading). (Id.)

    Revised Proposal. For Request No. 1, the Board proposes to cure an omission from both the Interim Data Order and the NPR by adding an overall “system” component to the reporting of average train speeds. This would align the request with railroads' current AAR reporting. Additionally, we propose to add a line item for unit train shipments of fertilizer to this request in order to better monitor service issues with regard to this commodity, which emerged as a critical issue during 2013-14.7 Since fertilizer moves in both manifest and unit train service, the Board requests that parties comment on whether a sufficient volume of fertilizer moves in unit train service to make this request meaningful for the agency to monitor rail service to fertilizer shippers.8

    7 For the same reasons, we are also proposing changes to Requests Nos. 1, 4, 5, and 6 to add fertilizer reporting.

    8 Although requests 1-3 are currently reported to AAR by six of the seven Class I railroads, and AAR makes this data publicly available, this reporting to AAR is voluntary. In the event that AAR changed its practices, the Board would lose access to this information, which is not otherwise available. Additionally, the data that AAR makes available to the public does not extend beyond the previous 53 weeks.

    For purposes of incorporating fertilizer shipments into this request, and additional requests, below, the Board seeks input from stakeholders as to the relevant Standard Transportation Commodity Codes (STCCs) for fertilizers moving by rail, including those that typically move in unit train service. Initially, the Board proposes the following STCCs: 14-7XX-XX, 28-125-XX, 28-18X-XX, 28-19X-XX, 28-71X-XX, and 49-18X-XX.

    For Requests No. 2 and No. 3, the Board proposes to retain these requests as proposed in the NPR. Terminal dwell and cars online are key indicators of railroad fluidity, and the requests mirror data that the Class I railroads report to AAR. Both railroad and shipper interests support the retention of these items. With respect to these and other requests, the Board addresses commenters' arguments for greater or lesser granularity below.

    Request No. 4 (Dwell Time at Origin or Interchange—Unit Train)

    This metric seeks weekly average dwell time at origin or interchange location for loaded unit train shipments sorted by grain, coal, automotive, crude oil, ethanol, and all other unit trains.

    Railroad Interests. The railroads contend that the information required by this request would not provide additional insight, would be burdensome for the railroads to collect, and would not provide added benefits to the public or the Board. (AAR Comments 14-15, March 2, 2015.) UP argues that the value of the data provided by the metric would be questionable because it does not account for operational differences between unit train shipments of different commodities on a single railroad or between different railroads. (UP Comments 3, 12-13, March 2, 2015.) UP contends that any comparisons would therefore be misleading because they would more likely reflect these operational differences than performance issues. (Id.) UP also opposes the addition of the interchange component. It explains that adding a measure of dwell time at interchange is problematic because of complex interchange arrangements between carriers and differences in how carriers measure elapsed time between two events such as when each carrier considers a train to be released and available, and because it could result in data that do not reflect actual service performance. (UP Comments 3, 14-15, March 2, 2015.)

    UP suggests normalizing, or standardizing, the data by presenting it in relation to the size and volume of each railroad rather than absolute values. UP argues that this would prevent misleading comparisons between railroads, avoid creating unjustified concerns, and allow the Board and stakeholders to develop a more meaningful baseline. (Id. at 6.)

    Shipper Interests and Other Stakeholders. WCTL, NGFA, and BASF all request that the Board add detail to this metric. NGFA argues that reporting by additional commodity type should be required. (NGFA Comments 7, March 2, 2015.) It recommends including destination dwell time in this metric. (Id.) NGFA also recommends requiring “the weekly percentage of a rail carrier's local service design plan that has been fulfilled for all manifest traffic, broken down by business traffic category.” (Id.) It argues that this would capture the actual percent of local industry switches versus plan for the week. (Id.) WCTL urges the Board to retain reporting of interchange times and require carriers to report dwell times at each railroad's 10 largest interchange locations and at individual interchanges for empty coal unit trains (in addition to loaded coal unit trains). (WCTL Comments 8, March 2, 2015; WCTL Mtg. Summary 3.) BASF requests that this metric include manifest trains. (BASF Mtg. Summary 2.)

    Revised Proposal. For Request No. 4, the Board proposes to delete the “at interchange” component of the NPR, which would align the request with the Interim Data Order. This change reflects railroads' comments that measuring the elapsed time at interchange would be difficult because railroads do not operate with a common understanding as to when a train is considered to be “released” or “accepted” at interchange or share common practices for measuring elapsed time at interchange. On further consideration, we believe that this additional information would not materially help the Board's monitoring of service performance in light of the other data that the Board would collect, such as dwell at origin, terminal dwell, trains holding, and cars that have not moved in two days or longer.

    Request No. 5 (Trains Held Short of Destination or Interchange)

    This metric seeks to capture the weekly total number of loaded and empty trains held short of destination or scheduled interchange for longer than six consecutive hours, sorted by train type (intermodal, grain unit, coal unit, automotive unit, crude oil unit, ethanol unit, other unit, and all other) and by cause (crew, locomotive power, track maintenance, mechanical issue, or other (with explanation)).

    Railroad Interests. The railroads contend that the information required by this request would not provide additional insight, would be burdensome for the railroads to collect, and would not provide added benefits to the public or the Board. (AAR Comments 14, March 2, 2015; BNSF Comments 4, 5, 6-8, March 2, 2015.) BNSF points out that the NPR's proposed metric differs from the one in the Interim Data Order by no longer using the “snapshot” approach and instead requiring that the railroad identify every instance during a week in which empty or loaded trains sit for at least six hours. (BNSF Comments 5, March 2, 2015.) BNSF and CSXT suggest that eliminating the snapshot approach would necessitate creating a new report that would require considerable resources and would not reflect a train held as the term is commonly understood in the railroad industry. (BNSF Comments 6, March 2, 2015; CSXT Comments 4-5, March 2, 2015.) CSXT comments that providing the “cause” of a train held would be problematic because it is subjective and must be manually entered. (CSXT Comments 5, March 2, 2015.) BNSF asserts that data regarding trains held may be misleading because a train may be held due to factors outside the railroad's control, or according to plan, and thus may not be indicative of a service disruption. (BNSF Comments 7, March 2, 2015.) As with Request No. 4, UP suggests that the Board normalize this data request to account for differences between types of traffic and between carriers. (UP Comments 6, March 2, 2015.)

    Shipper Interests and Other Stakeholders. WCTL comments that the Board should clarify the “other” category and require a more detailed explanation of the causes for trains being held. (WCTL Comments 8-9, March 2, 2015; WCTL Mtg. Summary 3.) ACC also requests additional information for the underlying reasons why trains were held. (ACC Comments 2, March 2, 2015.) NGFA suggests the metric could be expanded to include a breakdown of the type of train by different commodities and unit train service. (NGFA Comments 7, March 2, 2015.)

    Revised Proposal. For Request No. 5, the Board proposes to eliminate the six-hour component of this metric. This modification would allow railroads to run a same-time snapshot each day to report the average numbers of trains holding by train type. This approach comports with the railroads' current practices for monitoring fluidity. The Board originally proposed the six-hour component in an effort to capture trains holding outside of their normal operating plan. However, the railroads emphasized that a six-hour hold may be consistent with a specific train's operating plan or a train could be instructed to hold for six hours or longer to alleviate congestion or otherwise improve overall network fluidity. As such, the Board believes that capturing a weekly average figure should provide insight into fluidity and allow the agency to detect aberrations, which may prompt further inquiry. For example, if a railroad averages 25 coal trains holding per day for eight consecutive weeks, but then the number spikes to 50 or more trains for two consecutive weeks, this could prompt the agency to seek further information. Additionally, we propose to add a line item for unit train shipments of fertilizer to this request for the reason stated above. See supra n.7. Again, the Board requests that parties comment on whether a sufficient volume of fertilizer moves in unit train service to make it meaningful data or recommend alternative proposals to gauge rail service to fertilizer shippers.

    With regard to reporting the cause for why a locomotive was held, some shipper interests advocated that we break down the “other” category into additional specific categories. (WCTL Comments 3, March 2, 2015.) On the other hand, railroad interests explain that the assignment of cause is a manual and subjective process, which is initially performed by the dispatcher or a field-level employee based on limited information available at the time. Railroad interests therefore advocate for eliminating the reporting of causes for trains held. (BNSF Comments 6, March 2, 2015.) Upon further consideration, the Board believes that tracking causation remains important, but that the key issues for purposes of monitoring fluidity are availability of power and crew. Accordingly, the Board proposes to eliminate “track maintenance” and “mechanical issue” as categories of causes, but to retain “other” as a catch-all category.

    Request No. 6 (Cars Held at Origin or Destination)

    This metric requires the daily average number of loaded and empty cars, operating in normal movement and billed to an origin or destination, which have not moved in (a) more than 120 hours; and (b) more than 48 hours, but less than or equal to 120 hours, all sorted by service type (intermodal, grain, coal, crude oil, automotive, ethanol, or all other).

    Railroad Interests. The railroads contend that the information required by this request would not provide additional insight, would be burdensome for the railroads to collect, and would not provide added benefits to the public or the Board. (AAR Comments 14, March 2, 2015; BNSF Comments 4, 5, 6-8, March 2, 2015.) CSXT urges the Board to limit reporting to yard and terminal activity because “train line of road velocity is the central interest outside of terminals,” which should be sufficient to assess train operations (CSXT Comments 6-7, March 2, 2015, emphasis original.) CSXT also indicates that it was not providing the Board with information showing cars held for 120 hours because it does not measure that data. (CSXT Mtg. Summary 3.) BNSF argues that, like a trains held metric, a cars held metric may reflect factors outside the railroad's control or a car may be held according to plan, and thus may not be indicative of a rail service disruption. (BNSF Comments 7, March 2, 2015.)

    Shipper Interests and Other Stakeholders. NGFA requests that the Board require reporting by additional commodity type. (NGFA Comments 7-8, March 2, 2015.) BASF requests that this metric include manifest trains. (BASF Mtg. Summary 2.)

    Revised Proposal. For Request No. 6, the Board proposes to modify this request by requiring railroads to report only cars that have not moved in 48 hours or more. Both shippers and railroads comment that the “greater than 120-hour” demarcation was superfluous because stationary cars generally become a concern at the 48 hour point, or sooner. Moreover, several railroads advise that they generally track this metric, either at the 36 or 48 hour point. By keeping the metric consistent with how the railroads actually track this information, the metric would not be overly burdensome. Additionally, the Board proposes to add a subcategory for cars moving in fertilizer service.

    Request No. 7 (Grain Cars Loaded and Billed)

    This metric seeks to capture the weekly total number of grain cars loaded and billed, reported by State, and aggregated for the following STCCs: 01131 (barley), 01132 (corn), 01133 (oats), 01135 (rye), 01136 (sorghum grains), 01137 (wheat), 01139 (grain, not elsewhere classified), 01144 (soybeans), 01341 (beans, dry), 01342 (peas, dry), and 01343 (cowpeas, lentils, or lupines). It also seeks reporting on the total cars loaded and billed in shuttle service (or dedicated train service) versus total cars loaded and billed in all other ordering systems, including private cars.

    Railroad Interests. The railroads contend that the information required by this request would not provide additional insight, would be burdensome for the railroads to collect, and would not provide added benefits to the public or the Board. (AAR Comments 14, March 2, 2015.) AAR argues that metrics related to grain and specific regions were triggered by the “unique economic and operational factors that emerged during 2013-2014” and that there is no indication the same focus would be warranted for a potential future service disruption. (Id. at 15.) AAR stresses that the Board's focus “should be on the fluidity of the national system” and that micro-level, commodity-specific reporting may “obscure rather than clarify how a particular railroad or . . . the rail industry's network as a whole is performing.” (Id.)

    Shipper Interests and Other Stakeholders. NGFA requests that the Board require reporting to be further delineated by car type and to expand the listing of STCCs to which the metric applies. (NGFA Comments 8, March 2, 2015.)

    Revised Proposal. For Request No. 7, the Board does not propose any changes to the NPR metric. This metric provides information that is useful in monitoring grain carloadings by service type on a state by state basis, and would be helpful in the event of future service issues.

    Request No. 8 (Grain Car Orders)

    This metric seeks, for the same aggregated STCCs included in Request No. 7, a report by State for the following: (a) The total number of overdue car orders (a car order equals one car; overdue means not delivered within the delivery window); (b) the average number of days late for all overdue grain car orders; (c) the total number of new orders received during the past week; (d) the total number of orders filled during the past week; and (e) the number of orders cancelled, respectively, by shipper and railroad during the past week.

    Railroad Interests. The railroads contend that the information required by this request would not provide additional insight, would be burdensome for the railroads to collect, and would not provide added benefits to the public or the Board. (AAR Comments 14, March 2, 2015.) In particular, the railroads comment that they each have disparate commercial practices when it comes to shipping grain, and therefore this metric does not provide meaningful insight. CSX refers, in part, to car ordering through its “BidCSX” auction program, during peak season, and regular car ordering during the off-peak season. Unfilled regular car orders are expired on a weekly basis. (CSX Comment 4, Oct. 22, 2014, EP 724 (Sub-No. 3).) NS states that it does not operate its grain network on the basis of car orders, at all. (NSR Comments at 4.) UP refers to a number of problems, including a mismatch between orders and order “closing dates,” aggregating different commercial programs into one metric, and, more fundamentally, the exclusion of unit train service, which is not based on car orders. (UP Comments 18-19.)

    Shipper Interests and Other Stakeholders. NGFA states that because railroads use different methodologies to define when a car order is received, the Board needs to provide a standardized approach. (NGFA Comments 8, March 2, 2015.) NGFA asserts that this will facilitate comparisons between railroads. (Id.) NGFA also argues that the Board should require reporting of whether the railroad placed or pulled cars that were ordered or cancelled due to a railroad spotting more cars than a facility requested. (Id.) Finally, NGFA suggests that the Board require a cars ordered metric for short line railroads that haul significant amounts of grain in order to avoid erroneous conclusions about Class I carriers that interchange with those short lines. (Id.)

    Revised Proposal. For Request No. 8, the Board seeks to continue receiving weekly information related to railroads' service to grain shippers, including how well railroads are meeting demand for grain cars and whether railroads are experiencing substantial backlogs of unfilled orders. However, it appears that the proposed request does not comport with railroads' commercial practices in serving their grain shipping customers. First, Request No. 8 seeks to capture ordering data pertaining to grain cars moving in carload (or manifest) service, yet the vast majority of grain traffic moves in unit train service (and as such, is captured elsewhere by other requests). And even for those cars that do move in unit train service, the unit train commercial offerings available to customers vary among carriers. For example, some railroads commit trainsets to specific customers for a defined period of time. During that period, the customers control the movement of their trainsets, and, depending on the commercial terms, can resell the trainsets to other shippers. The activity of these trainsets is not captured in the railroads' car ordering systems and thus would not be easily reportable for purposes of this metric.

    In addition, even for grain cars that do move in carload service, the focus of Request No. 8 still would not properly capture the car ordering data the Board intends to seek in the NPR, as railroads also maintain disparate ordering systems for carload shipments. Specifically, there is no uniformity among the Class Is as to how the number of new orders is derived, when an order becomes past due, or how to measure the number of days an order is overdue. (NSR Comments 4, March 2, 2015; UP Comments 18-19, March 2, 2015; CSXT Comments 4, Oct. 22, 2014, EP 724 (Sub-No. 3).)

    Accordingly, the Board proposes a simpler approach by asking that railroads report running totals of grain car orders placed versus grain car orders filled by State for cars moving in manifest service. The Board also requests that the railroads report the number of unfilled orders that are 1-10 days overdue and 11+ days overdue, as measured from the due date for placement under the carrier's governing tariff. However, the Board expressly requests comments from stakeholders and railroads that would refine this metric regarding grain car order fulfillment so that the final rule will best achieve the Board's goal to effectively monitor service to grain shippers.

    Request No. 9 (Coal Carloadings)

    Under Request No. 9, railroads would no longer be required to provide data comparing actual coal loadings against their service plans (as required by the Interim Data Order), but instead, to report the total number of coal unit train loadings (by production region) on a weekly basis.

    Railroad Interests. The railroads contend that the information required by this request would not provide additional insight, would be burdensome for the railroads to collect, and would not provide added benefits to the public or the Board. (AAR Comments 14, March 2, 2015.) In response to arguments from parties asking the Board to return to a performance versus plan component, several railroads noted that plans for coal loadings are not static, but rather are fluid, reflecting utility customers' generation decisions, conditions at the mine, equipment availability, unplanned outages, and commercial issues, among other factors. (UP Reply 8, April 29, 2015; NSR Mtg. Summary 1; BNSF Mtg. Summary 4.)

    Shipper Interests and Other Stakeholders. WCTL argues for the Board to continue using the performance versus plan component that is used in the Interim Data Order. WCTL states that the elimination of the comparison to plan in the NPR diminishes the usefulness of the data point by making it difficult to evaluate whether the railroads are keeping up with demand. (WCTL Comments 9, March 2, 2015; WCTL Mtg. Summary 3.) NGFA again requests that the Board require reporting by additional commodity and traffic categories. (NGFA Comments 8-9, March 2, 2015.) NGFA also requests that the Board require reporting on velocity and cycle time by corridor for grains and oilseeds shipped by unit train and by relevant corridor for other commodities that ship by unit train. (Id. at 9.)

    Revised Proposal. For Request No. 9, the Board proposes to modify this request by reverting back to what is currently reported in the Interim Data Order, which requires railroads to report actual coal loadings against their service plan. Railroads would be permitted the flexibility to report in terms of carloads or trains. The Board recognizes the concerns railroads have regarding this request, given the numerous factors involved in developing fluid monthly or weekly loading plans for coal traffic.9 The Board believes, however, that there is value in having coal loadings reported against plan for purposes of ascertaining whether railroads are meeting their own expectations regarding the needs of their utility customers.

    9 These factors include customer demand, mine production and capacity, railroad fluidity and resource availability, and contractual commitments.

    New Requests No. 10 (Grain Unit Train Performance), No. 11 (Originated Carloads by Commodity Group), and No. 12 (Car Order Fulfillment Rate by Car Type)

    The Board proposes three additional metrics not included in the NPR.

    New Request No. 10 would continue a requirement in the Interim Data Order under which BNSF and CP report average grain shuttle (or dedicated grain train) trips per month (TPM), by region. Under Request No. 10 carriers would be required to include this data in their first report of each month, covering the previous calendar month.10 TPM should be reported on an average basis—for example, if a particular train set makes three origin to destination moves and another train set makes five origin to destination moves during the same calendar month, the railroad's average would be four TPM. Class I railroads other than BNSF and CP have indicated that their operations do not permit this reporting, for various reasons.11 Accordingly, the Board anticipates issuing a waiver decision with the final rules that would permit other Class I railroads to satisfy their obligations under Request No. 10 by reporting average grain unit train TPM for their total system, including this data in their first report of each month, covering the previous calendar month. Such reports would not include planned TPM or data by region. For purposes of reporting under this item, other Class I railroads would report for all grain unit train movements, regardless of whether or not they maintain a grain shuttle or dedicated train program.

    10 We note that BNSF has been reporting this data broken out by week; BNSF may continue to do so, if it chooses, but it would only be required to report figures for the previous calendar month.

    11See, e.g., UP Comments 2, Oct. 22, 2014, EP 724 (Sub-No. 3) (“Item 9 asks for data on `plan versus performance' for round trips on grain shuttle trains by region. Union Pacific cannot comply with this request because it does not have a `plan' for round trips on grain shuttles. As more fully explained in Union Pacific's filings in Ex Parte 665 (Sub-No. 1), movement of our shuttle trains is determined by our customers, not by Union Pacific.”); CSXT Comments 4, Oct. 22, 2014, EP 724 (Sub-No. 3) (“CSX grain trains do not operate as a `shuttle' nor do they operate in `loops' between origins and destinations. As requested by the customer, a train-set will be placed and will be transported to destination anywhere on CSX, or to a CSX interline connection. CSX does not recognize sub-regions within its service territory.”)

    New Request No. 11 would require the Class I railroads to report weekly originated carloads by major commodity group and intermodal units, as proposed by multiple Class I railroads. The Board believes that having this information on a weekly basis will better allow it to track demand and volume growth or decline on the rail network and to correlate other metrics. The Class I railroads presently report this information to AAR and many make it available on their Web sites. Consequently, the reporting burden is minimal. However, the Board also proposes that the railroads break out an additional commodity category for “fertilizer.” As noted above, the Board seeks stakeholder guidance on the primary fertilizer STCCs.

    New Request No. 12 would require Class I railroads to report their weekly car order fulfillment rates by major car type. Fulfillment should be stated as a percentage of cars due to be placed during the reporting week versus cars actually or constructively placed. The car types to be reported are for railroad owned or leased open hoppers, covered hoppers, gondolas, auto racks, center-beam, boxcars, flatcars, and tank cars. The Board believes that this request will provide the agency with an understanding of railroads' service to broad classes of industries which routinely ship products via specific car types (for example, grain moves primarily in covered hopper cars, so looking at the car fulfillment rates for covered hopper cars would give grain shippers some indication of how their service compares to other grain shippers). Additionally, this request would allow railroad customers to monitor their order fulfillment against their broader peer group.

    Chicago

    The NPR asks that the Class I railroads operating at the Chicago gateway jointly report the following performance data elements for the reporting week: (1) Average daily car volume in the following Chicago area yards: Barr, Bensenville, Blue Island, Calumet, Cicero, Clearing, Corwith, Gibson, Kirk, Markham, and Proviso for the reporting week; and (2) average daily number of trains held for delivery to Chicago sorted by receiving carrier for the reporting week. Moreover, the request required Class I railroad members of the CTCO to provide certain information regarding the CTCO Alert Level status and protocols.

    Railroad Interests. CP argues that obtaining a number of operating metrics from the Belt Railway Company of Chicago (BRC) and the Indiana Harbor Belt Railroad (IHB) would provide a more complete picture of operational fluidity in Chicago and the health of the network. (CP Comments 3, March 2, 2015.) CP elaborated that, given the experience in the winter of 2013-14, it recognizes that the Board has a legitimate interest in understanding the congestion in Chicago and that BRC and IHB are the heart of the Chicago terminal. CP added that reporting changes in the Chicago terminal's operating level is useful. (CP Mtg. Summary 2).

    Shipper Interests and Other Stakeholders. Shippers and stakeholders generally agree that a focus on Chicago is important. (NITL Comments 4, March 2, 2015; USDOT Reply 7; WCTL Comments 7 n.6, March 2, 2015.) NITL suggests that the Board include dwell time in the Chicago metrics and develop appropriate and specific metrics for BRC and IHB. (NITL Comments 4-5, March 2, 2015.) NGFA suggests that the Board expand the Chicago data to include cars idled for more than 48 hours in a Chicago area yard for origin, destination, and interchange traffic. (NGFA Comments 9, March 2, 2015.) CMAP made a number of requests for additional data specific to the Chicago terminal. (CMAP Mtg. Summary 1-2.)

    Revised Proposal. As the Board noted in the Interim Data Order, railroads cited congestion in Chicago as one significant cause of network service problems. While congestion in the area was particularly acute during the winter of 2013-14, it has been a recurring problem at this crucial network hub. Chicago is an important hub in national rail operations, and extreme congestion there has an impact on rail service in the Upper Midwest and beyond. Most participants either endorse the current reporting of Chicago metrics or did not provide comments. However, CMAP and CP propose to significantly augment the granularity of reporting. For example, CMAP suggests that the Board require reporting of speed and transit times for federally supported Chicago Region Environmental and Transportation Efficiency Program corridors, including information on train length, crosstown transit times through the Chicago terminal, and the number of intermodal container lifts at key Chicago terminals. (CMAP Mtg. Summary 1-2.) CP, in turn, suggests that the Board should request from BRC and IHB weekly reports including: The number of cars arrived per day; number of cars humped or processed per day; number of cars re-humped or reprocessed per day; number of cars pulled per day, number of trains departed each day by railroad; average terminal dwell; average departure yard dwell; and percentage of trains departed on-time each day by railroad. (CP Comments 3, March 2, 2015.)

    The Board appreciates the recommendations provided by CMAP and CP to further augment the Board's monitoring of the Chicago gateway. Therefore, we invite comment on how such reporting could be provided by the BRC and IHB with the least amount of burden to these carriers. We also seek views on whether such reporting would be better handled on a temporary basis in the event of an emerging service issue.

    Infrastructure Reporting

    The NPR requires that each Class I railroad, on a quarterly basis, report on major work-in-progress rail infrastructure projects, including location by State, planned completion date for each project, percentage complete for each project at the time of reporting, and project description and purpose.

    Railroad Interests. AAR and several railroads request clarification of the terms “project,” “qualifying projects,” “project purpose,” “percentage complete,” “maintenance-of-way,” and “planned completion date.” (AAR Comments 17-18, March 2, 2015; BNSF Comments 10-12, March 2, 2015; UP Comments 19-20, March 2, 2015.) They also submit that the Board should consider altering the infrastructure request to an annual narrative report and periodic updates. (AAR Comments 17-18, March 2, 2015; BNSF Comments 10, March 2, 2015; AAR Mtg. Summary 2.) UP argues that limiting the projects on which the railroad must report would reduce repetition between reports and relieve some burden on the reporting railroads. (UP Comments 20, March 2, 2015.) UP also states that the proposed reporting date (the first Tuesday of each quarter) often falls before the date it closes its books and suggests the third Tuesday of each quarter to avoid this problem. (Id. at 21.) CP opposes providing project-specific information or requirements that could inhibit the railroad's ability to adjust its capital spending decisions. (CP Comments 4, March 2, 2015.)

    Shipper Interests and Other Stakeholders. WCTL suggests that the Board review planned infrastructure projects with an eye toward meeting long-term common carrier obligations. (WCTL Comments 10, March 2, 2015.) BASF considers the requirement reasonable and valuable. (BASF Mtg. Summary 2.)

    Revised Proposal. The Board proposes to significantly modify the previously proposed version of 1250.3(d), which seeks information related to major infrastructure projects. As the railroads point out, much of the information called for in this request is available to the public through presentations to investors, outreach at industry conferences, in marketing materials, in trade press and media reports, and through financial filings. To the extent that reporting of this information would allow the Board to identify congestion or service issues arising from major infrastructure projects, railroads also point out that their customers are typically made aware of potential disruptions and traffic delays through regular email updates and information available on railroad Web sites, which describe maintenance and capital projects in real-time or near real-time. Some railroads also raise confidentiality and competitive concerns about reporting on customer-specific projects and long term strategic projects such as land acquisitions. (BNSF Comments 11, March 2, 2015.) Railroads also object to this request, asserting that many of the terms, such as “planned completion date,” “percentage complete,” and “project description and purpose” are subjective and ambiguous. As an alternative, railroads suggest that this information could be provided to the Board through the Chairman's annual “Peak Season” letter or in another manner that would not subject them to additional regulatory obligations.

    Based on the comments received, this request is being revised to require annually a description of significant rail infrastructure projects that will be commenced during the current calendar year, and a six-month update on those projects. Railroads are instructed to respond in a narrative form to briefly describe each project, its purpose, location, and projected date of completion. Reports are to be filed on March 1 of each year and updated on September 1. The Board proposes to define a significant project as one with a budget of $75 million or more. Our goal is to establish a dollar figure threshold that captures significant projects for all six of the Class I carriers, recognizing variations in size and capital budgets. Parties should comment on whether a different threshold is more appropriate.

    Other Recommendations

    Railroad Interests. AAR and many of the Class I railroads argue that the NPR is overbroad and should be streamlined to include fewer and less granular metrics. They state that more granular metrics may not be helpful in the long run as an indicator of carrier performance. (AAR Comments 1, 9-10, 15, March 2, 2015; CSXT Comments 3-4, March 2, 2015; UP Comments 3, March 2, 2015.) They argue that too much granularity may obscure information showing how a railroad or the industry is performing and that the focus should be on the fluidity of the national system. (AAR Comments 15, March 2, 2015; BNSF Comments 4-5, March 2, 2015; CP Comments 1-2, March 2, 2015; UP Comments 3-5, March 2, 2015.) As an alternative to permanent granular reporting, NSR argues that commodity- or region-specific reporting should be used in response to performance issues and then be phased out as performance improves. (NSR Comments 2-3, March 2, 2015.)

    The railroad interests also assert that the Board must examine service issues within the context of the entire supply chain. (CP Comments 1-2, March 2, 2015; UP Comments 1, March 2, 2015; UP Reply 3-4, 4-6.) They argue that factors throughout the supply chain can cause or compound rail service issues. As such, they argue, a railroad's responsibility for service problems may be limited, in any given situation. (CP Comments 2, March 2, 2015.)

    The railroads emphasize that they currently provide considerable service information to their customers, the public, and the Board on their Web sites and through the AAR. They argue that the existing information allows the Board and the public to monitor service issues, performance, and system fluidity. (AAR Comments 12-13, March 2, 2015; UP Comments 7-8, March 2, 2015; BNSF Reply 2.)

    UP states that a data reporting rule is not necessary for the Board to perform its functions properly. (UP Comments 21, March 2, 2015.) AAR cautions that ongoing data collection should be limited to information that is necessary for the Board to properly perform its statutory responsibilities. (AAR Comments 9, March 2, 2015.) It states that because of the Board's limited authority to remedy certain service disruptions, many of the costs and burdens outweigh the benefits of the NPR. (Id. at 10.) CSXT advocates for creating a voluntary set of rules, asserting that a flexible, voluntary framework would suffice for the information the Board seeks and it would also reduce the burden to the railroads. (CSXT Comments 3-4, 7, March 2, 2015.)

    Finally, AAR and the railroads expressed concern about parties' use of the data to make comparisons between railroads, commodity groups, or geographic regions. (AAR Comments 15, March 2, 2015; CSXT Comments 3-4, March 2, 2015; UP Reply 6-7, March 2, 2015; KCS Mtg. Summary 1; UP Mtg. Summary 1.) They contend that different commodities and customer groups are served differently, and that comparisons of performance either cannot be made or are not valid unless they account for such distinctions. (AAR Comments 15, March 2, 2015; UP Comments 6-7, March 2, 2015.) CSXT states that comparing carriers against each other should not be the goal and could be counterproductive since each system is unique. CSXT further asserts that what matters is the trend on each carrier. (CSXT Comments 3-4, March 2, 2015.) 12

    12 AAR also recommends that the Board clarify whether the carriers should file through the normal formal filing process and by emailing the Board's Office of Public Affairs, Governmental Affairs, and Compliance (OPAGAC) (as is currently done), or only by emailing OPAGAC. (AAR Comments 19, March 2, 2015.) The Board has clarified that carriers should file their reports only with OPAGAC.

    Shipper Interests and Other Stakeholders. Shipper interests and other stakeholders generally requested greater granularity and more metrics, including metrics that would be segregated by geography and commodity, which they argue would provide insight and transparency into railroad performance. (NGFA Comments 4, March 2, 2015; USDOT Reply 1-2; WCTL Reply 1-2; NGFA Reply 7-12; NGFA Mtg. Summary 1.) They suggest that data be uniform across railroads to facilitate comparisons. (TTMS Comments 4, March 2, 2015; NGFA Comments 3-4, 5, March 2, 2015.) ACC suggests that the Board establish criteria to facilitate the modification or addition of future data requests on then-current service issues. (ACC Comments 2, March 2, 2015.) TFI asks the Board to make clear that if commodities are excluded in the final rule, data about those commodities are not precluded from being collected in response to future performance issues. (TFI Comments 8, March 2, 2015.) NGFA asks the Board to require Canadian providers to separately delineate Canadian service. (NGFA Comments 5-6, March 2, 2015.) WCTL requests additional coal data in the trains held metric, more information about coal trainsets, data about restrictions on equipment and crews, and cycle times over key corridors. (WCTL Comments 11-13, March 2, 2015; WCTL Mtg. Summary 1-2.) ACC requests resource counts (such as locomotive and crew counts) by region. (ACC Comments 1-2, March 2, 2015.) NITL asks the Board to require data broken down further by key corridors and additional data about manifest service and fertilizer. (NITL Comments 5-7, March 2, 2015.) TFI seeks to ensure that railroads are not favoring other commodities over fertilizer and asks for metrics similar to the proposed grain-specific metrics. (TFI Comments 2-4, 6, 8, March 2, 2015; TFI Mtg. Summary 1; TFI Comments 1, Dec. 23, 2015.) Senator Thune recommends that the final rule include several metrics the railroads are currently reporting under the Interim Data Order. (Thune Comments 1-2.)

    USDA requests that the Board add weekly carloadings for major commodities and collect information about railcar auction markets. (USDA Comments 4-5, March 2, 2015; USDA Mtg. Summary 1-2.) NGFA urges the Board to include a measure of local service, such as industry spot and pull reports, as well as scheduled curfew hours that may cause stoppages. (NGFA Comments 5, 10, March 2, 2015.) TTMS suggests that the board include railroad “dash board” data. (TTMS Comments 4, March 2, 2015.) HRC suggests that the Board consider adding percent of car orders filled, percent of cars placed versus percent of cars ordered in, and number of missed switches. (HRC Mtg. Summary, Ex. 1 at 13.) ARC argues that the Board must require reporting for trains other than unit trains and states that rail service must evolve to meet the changing face of the agricultural commodity mix by meeting smaller shipment/shipper priorities. (ARC Comments 6-7, 9-10, March 2, 2015.) Finally, USDA and NGFA comment that the Board should create a user friendly data portal for rail performance data on its Web site. (USDA Comments 5, March 2, 2015; NGFA Comments 5, March 2, 2015.)

    McFarland and MacDougall submitted comments regarding the meeting summaries posted on the Board's Web site. (McFarland and MacDougall Comments 3-6, Dec. 23, 2015.)

    Revised Proposal. As stated earlier, the changes to the Board's proposed rules reflect the robust discussion to date regarding what data would be most beneficial to collect and monitor. Although not every suggested change is contained in our revised proposal, the general themes behind many of those proposals have informed our decision-making. We address those themes below.

    We are not persuaded at this stage that we need additional, more granular performance data. Some shipper parties advocated for a number of additional metrics, but they have not sufficiently explained why or how their recommendations would materially enhance the Board's ability to monitor rail service, as compared to Interim Data Order or NPR. At this point, the Board believes that the burden of more granular metrics outweighs their value as a tool for identifying regional or national system-wide problems. Should more granular data become necessary due to emerging service issues, the Board has the authority to request such information on a case-by-case and as-needed basis. On the other hand, the railroad comments make clear that the industry would prefer less granularity. We believe that the Board has struck a reasonable balance between these competing concerns in our supplemental proposal.

    The Board also received comments requesting reporting by short line railroads and requiring Canadian railroads to report on their operations in Canada. Although short lines play an indispensable role in the Nation's freight rail network, commenters have not shown that reporting of short line service data would materially enhance the STB's perspective on system fluidity. As a practical matter, service problems of national or regional significance tend to emerge on Class I railroads, rather than on short line railroads. Additionally, the Board is concerned about the burden that reporting requirements would place on short line carriers, which often do not have the resources available to Class I carriers. As discussed earlier, we do seek comment on CP's request to require reporting from certain Chicago-area belt lines. With regard to Canadian railroads' operations in Canada, the Board is necessarily governed by its statutory jurisdictional limitations.

    Some commenters seek improvements regarding the availability of service data on the Board's Web site. The Board presently makes the service data available on a specific Web page and has also developed a live master spreadsheet that is updated each week and can be downloaded by stakeholders.13 The Board anticipates further improvements to data availability as it enhances Web site functionality going forward.

    13 See EP 724—Rail Service Issues Reports, http://www.stb.dot.gov/stb/railserviceissues/rail_service_reports.html.

    CSXT questions the need for a permanent weekly reporting rule at all, and AAR questions whether the cost and burdens of the NPR outweigh the benefits when the Board has a limited ability to remedy a service disruption. We believe the need and justification for a permanent reporting rule is clear. The Board has the authority to require reports by rail carriers (49 U.S.C. 1321, 11145), and has an interest in ensuring transparency and accountability, improving rail service (19 U.S.C. 10101(4)), and has the responsibility under a variety of statutory provisions for monitoring the adequacy of service by rail carriers (49 U.S.C. 11123, 10907). Notably, railroads have the responsibility to provide service on reasonable request (49 U.S.C. 11101) and to provide safe and adequate car service (49 U.S.C. 11121). The permanent reporting proposed here would aid the Board and industry stakeholders in identifying whether railroads are adequately meeting those statutory requirements. In particular, the permanent collection of performance data on a weekly basis would allow continuity of the current reporting and improve the Board's ability to identify and help resolve future regional or national service disruptions more quickly, as well as determine whether more granular data is needed. Transparency would also benefit rail shippers and other stakeholders by helping them to better plan operations and make informed decisions based on publically available, near real-time data, and their own analysis of performance trends over time.

    The railroads expressed a general concern that the data not be used to compare railroads against one another. The Board is confident that stakeholders recognize that there are significant differences between the railroads as to geography, network, customer base, traffic volumes, resources, operating practices, and business philosophy. In collecting data pursuant to the Interim Data Order and as proposed in this rulemaking, the Board's main objective is to be able to identify trends and monitor potential service issues on individual Class I railroads.

    In seeking public comments, the Board requests that interested stakeholders evaluate the utility of each revised data request, offer specific proposed modifications, and/or propose other requests that would assist the Board and the public in gaining complete and accurate near real-time assessment of the performance of Class I railroads.

    Regulatory Flexibility Act. The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, generally requires a description and analysis of new rules that would have a significant economic impact on a substantial number of small entities. In drafting a rule, an agency is required to: (1) Assess the effect that its regulation will have on small entities; (2) analyze effective alternatives that may minimize a regulation's impact; and (3) make the analysis available for public comment. 601-604. In its notice of proposed rulemaking, the agency must either include an initial regulatory flexibility analysis, 603(a), or certify that the proposed rule would not have a “significant impact on a substantial number of small entities.” 605(b). The impact must be a direct impact on small entities “whose conduct is circumscribed or mandated” by the proposed rule. White Eagle Coop. v. Conner, 553 F.3d 467, 480 (7th Cir. 2009).

    The rules proposed here would not have a significant economic impact upon a substantial number of small entities, within the meaning of the RFA. The reporting requirements would apply only to Class I rail carriers, which, under the Board's regulations, have annual carrier operating revenues of $250 million or more in 1991 dollars (adjusted for inflation using 2014 data, the revenue threshold for a Class I rail carrier is $475,754,803). Class I carriers generally do not fall within the Small Business Administration's definition of a small business for the rail transportation industry.14 Therefore, the Board certifies under 5 U.S.C. 605(b) that this proposed rule will not have a significant economic impact on a substantial number of small entities within the meaning of the RFA. A copy of this decision will be served upon the Chief Counsel for Advocacy, Office of Advocacy, U.S. Small Business Administration, Washington, DC 20416.

    14 The Small Business Administration's Office of Size Standards has established a size standard for rail transportation, pursuant to which a line-haul railroad is considered small if its number of employees is 1,500 or less, and a short line railroad is considered small if its number of employees is 500 or less. 13 CFR 121.201 (industry subsector 482).

    Paperwork Reduction Act. Pursuant to the Paperwork Reduction Act (PRA), 44 U.S.C. 3501-3549, and Office of Management and Budget (OMB) regulations at 5 CFR 1320.8(d)(3), the Board seeks comments regarding: (1) Whether the collection of information in the proposed rule, and further described in this section, is necessary for the proper performance of the functions of the Board, including whether the collection has practical utility; (2) the accuracy of the Board's burden estimates; (3) ways to enhance the quality, utility, and clarity of the information collected; and (4) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology, when appropriate. Information pertinent to these issues is included below. The collection in this proposed rule will be submitted to OMB for review as required under 44 U.S.C. 3507(d) and 5 CFR 1320.11.

    The additional information below is included to assist those who may wish to submit comments pertinent to review under the Paperwork Reduction Act:

    Description of Collection

    Title: Rail Service Data Collection.

    OMB Control Number: 2140-XXXX.

    STB Form Number: None.

    Type of Review: New collection.

    Respondents: Class I railroads (on behalf of themselves and the Chicago Transportation Coordination Office (“CTCO”)).

    Number of Respondents: Seven.

    Estimated Time per Response: The proposed rules seek three related responses, as indicated in the table below.

    Table—Estimated Time per Response Type of responses Estimated time per
  • response
  • (hours)
  • Weekly 3 Semiannually 3 On occasion 3

    Frequency: The frequencies of the three related collections sought under the proposed rules are set forth in the table below.

    Table—Frequency of Responses Type of responses Frequency of
  • responses
  • Weekly 52/year. Semiannually 2/year. On occasion 2/year.

    Total Burden Hours (annually including all respondents): The recurring burden hours are estimated to be no more than 1,182 hours per year, as derived in the table below. In addition, there are some one-time, start-up costs of approximately 2 hours for each respondent filing a quarterly report that must be added to the first year's total burden hours. To avoid inflating the estimated total annual hourly burden, the two-hour start-up burden has been divided by three and spread over the three-year approval period. Thus, the total annual burden hours for each of the three years are estimated at no more than 1,186.67 hours per year.

    Table—Total Burden Hours (per Year) [Excluding 2-hour one time start up burden] Type of responses Number of
  • respondents
  • Estimated time per response
  • (hours)
  • Frequency of
  • responses
  • Total yearly burden hours
    Weekly 7 3 52/year 1,092 Semiannually 7 3 2/year 42 On occasion 1 3 2/year 6 Total 1,182

    Total “Non-hour Burden” Cost: None identified. Reports will be submitted electronically to the Board.

    Needs and Uses: The new information proposed here would aid the Board in identifying rail service issues, determining if more granular data would be appropriate, and working toward improving service when necessary. Transparency would also benefit rail shippers and other stakeholders by helping them to better plan operations and make informed decisions based on publicly available, near real-time data, and their own analysis of performance trends over time.

    Retention Period: Information in this report will be maintained in the Board's files for 10 years, after which it is transferred to the National Archives.

    Summary of Revised Proposal

    Having considered all written and oral comments on the NPR, the Board seeks to revise the proposed metrics. Accordingly, the Board is issuing this SNPR to seek supplemental public comments on proposed new regulations to be codified at 49 CFR 1250.1-1250.3 to require Class I rail carriers, Class I carriers operating in the Chicago gateway, and the CTCO, through its Class I members, to submit to the Board weekly reports on railroad performance. The table below provides a brief description of the differences between this revised proposal and the NPR, which were explained in detail above.

    Table 1—Summary of Changes in the Data Requests Between the NPR and SNPR NPR Proposed changes in SNPR Sunday to Saturday reporting week with reports to be filed the following Tuesday Adopt a Saturday through Friday reporting week with reports to be filed the following Wednesday. Unit trains are defined as comprising 60 or more railcars of the same or similar type, carrying a single commodity in bulk Allow carriers to report unit train data based on their assignment of train codes in the ordinary course of business. (1) System-average train speed for intermodal, grain unit, coal unit, automotive unit, crude oil unit, ethanol unit, manifest, and all other Add line items for system average and fertilizer unit. (2) Weekly average terminal dwell time for each carrier's system and its 10 largest terminals No proposed changes. (3) Weekly average cars online for seven car types, other, and total No proposed changes. (4) Weekly average dwell time at origin or interchange for loaded unit train shipments sorted by grain, coal, automotive, crude oil, ethanol, and all other unit trains Delete the interchange location component and modify the list of train types to which the request would apply, including the addition of fertilizer unit. (5) Weekly total number of loaded and empty trains held short of destination or scheduled interchange for longer than six hours by train type (intermodal, grain unit, coal unit, automotive unit, crude oil unit, ethanol unit, other unit, and all other) and by cause (crew, locomotive power, track maintenance, mechanical issue, or other) Delete the six hour component.
  • Delete all other from the list of train types.
  • Add fertilizer unit and manifest to the list of train types.
  • Reduce list of causes to crew, locomotive power, or other.
  • Instruct railroads to run a same-time snapshot of trains holding each day and then calculate the average for the reporting week.
  • (6) Daily average number of loaded and empty cars operating in normal movement, which have not moved in > 120 hours and > 48 but ≤ 120 hours, sorted by service type and measured by a daily same-time snapshot Delete the > 120 hours requirement.
  • Modify the > 48 but ≤ 120 hours requirement to ≥ 48 hours.
  • (7) Weekly total number of grain cars loaded and billed, by State, for certain Standard Transportation Commodity Codes (STCCs). Also include total cars loaded and billed in shuttle service versus all other ordering systems No proposed changes. (8) For the STCCs delineated in Request No. 7, total overdue car orders, average days late, total new orders in the past week, total orders filled in the past week, number of orders cancelled in the past week Modify to require reporting of weekly running totals of grain car orders in manifest service submitted versus grain car orders filled, and for unfilled orders, the number of car orders that are 1-10 days past due and 11 or more days past due. (9) Weekly total coal unit train loadings or car loadings by coal production region Return to the form of prior Request No. 10 in the Interim Data Order and require actual coal loadings against railroad service plans. (10) Add new Request No. 10 requesting grain shuttle (or dedicated grain train) trips per month. (11) Add new Request No. 11 requesting the weekly originated carloads by 23 commodity categories. (12) Add new Request No. 12 requesting car order fulfillment percentage for the reporting week by 10 car types. Chicago. Class Is operating in Chicago must jointly report each week: Average daily car volume in certain yards, and average daily number of cars held for delivery to Chicago sorted by receiving carrier. Class I railroad members of the CTCO must provide certain information regarding the CTCO Alert Level status and protocols No proposed changes. Seeking comment on whether to require additional reporting as requested by CP and CMAP. Infrastructure. A quarterly report on major work-in-progress rail infrastructure projects, including location by State, planned completion date for each project, percentage complete for each project at the time of reporting, and project description and purpose Modify to require an annual report of significant rail infrastructure projects that will be commenced during that calendar year, and a six-month update on those projects. The report is to be in a narrative form briefly describing each project, its purpose, location, and projected date of completion. The Board proposes to define a significant project as one with a budget of $75 million or more.
    List of Subjects in 49 CFR Part 1250

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

    It is ordered:

    1. The Petition for Reconsideration is denied.

    2. Comments on the Supplemental Notice of Proposed Rulemaking are due by May 31, 2016. Reply comments are due by June 28, 2016.

    3. A copy of this decision will be served upon the Chief Counsel for Advocacy, Office of Advocacy, U.S. Small Business Administration.

    4. Notice of this decision will be published in the Federal Register.

    5. This decision is applicable on its service date.

    Decided: April 29, 2016.

    By the Board, Chairman Elliott, Vice Chairman Miller, and Commissioner Begeman.

    Tia Delano, Clearance Clerk.

    For the reasons set forth in the preamble, the Surface Transportation Board proposes to amend title 49, chapter X, subchapter D, of the Code of Federal Regulations by adding part 1250 to read as follows:

    PART 1250—RAILROAD PERFORMANCE DATA REPORTING Sec. 1250.1 Reporting requirements. 1250.2 Railroad performance data elements. Authority:

    49 U.S.C. 1321 and 11145.

    § 1250.1 Reporting requirements.

    (a) Each Class I railroad is required to report to the Board on a weekly basis, the performance data set forth in § 1250.2(a)(1) through (12), except for § 1250.2(a)(10) which shall be reported with the first report of each month. The Class I railroads operating at the Chicago gateway are required to jointly report on a weekly basis the performance data set forth in § 1250.2(b)(1) and (2). The reports required under § 1250.2(b)(1) and (2) may be submitted by the Association of American Railroads (AAR). The data must be reported to the Board between 9 a.m. and 5 p.m. Eastern Time on Wednesday of each week, covering the previous reporting week (12:01 a.m. Saturday to 11:59 p.m. Friday), except for § 1250.2(a)(10), which covers the previous calendar month. In the event that a particular Wednesday is a Federal holiday or falls on a day when STB offices are closed for any other reason, then the data should be reported on the next business day when the offices are open. The data must be emailed to [email protected] in Excel format, using an electronic spreadsheet made available by the Board's Office of Public Assistance, Governmental Affairs, and Compliance (OPAGAC). Each week's report must include data only for that week, and should not include data for previous weeks. Each reporting railroad shall provide an explanation of its methodology for deriving the data with its initial filing. Unless otherwise provided, the data will be publicly available and posted on the Board's Web site.

    (b) For reporting under § 1250.2(c)(1) and (2), changes in the Alert Level status or the protocol of service contingency measures shall be reported by email to the Director of the Office of Public Assistance, Governmental Affairs and Compliance and [email protected]

    (c) For reporting under § 1250.2(d), the narrative report should be submitted via email to the Director of the Office of Public Assistance, Governmental Affairs and Compliance and [email protected]

    § 1250.2 Railroad performance data elements.

    (a) Each Class I railroad must report the following performance data elements for the reporting week. However, with regard to paragraphs (a)(7) and (8) of this section, Kansas City Southern Railway Company is not required to report information by State, but instead shall report system-wide data.

    (1) System-average train speed for the overall system and for the following train types for the reporting week. Train speed should be measured for line-haul movements between terminals. The average speed for each train type should be calculated by dividing total train-miles by total hours operated.

    (i) Intermodal;

    (ii) Grain unit;

    (iii) Coal unit;

    (iv) Automotive unit;

    (v) Crude oil unit;

    (vi) Ethanol unit;

    (vii) Manifest;

    (viii) Fertilizer unit;

    (ix) System.

    (2) Weekly average terminal dwell time, measured in hours, excluding cars on run-through trains (i.e., cars that arrive at, and depart from, a terminal on the same through train) for the carrier's system and its 10 largest terminals in terms of railcars processed. Terminal dwell is the average time a car resides at a specified terminal location expressed in hours.

    (3) Weekly average cars on line by the following car types for the reporting week. Each railroad is requested to average its daily on-line inventory of freight cars. Articulated cars should be counted as a single unit. Cars on private tracks (e.g., at a customer's facility) should be counted on the last railroad on which they were located. Maintenance-of-way cars and other cars in railroad service are to be excluded.

    (i) Box;

    (ii) Covered hopper;

    (iii) Gondola;

    (iv) Intermodal;

    (v) Multilevel (Automotive);

    (vi) Open hopper;

    (vii) Tank;

    (viii) Other;

    (ix) Total.

    (4) Weekly average dwell time at origin for the following train types: Grain unit, coal unit, automotive, crude oil unit, ethanol unit, fertilizer unit, all other unit trains, and manifest. For the purposes of this data element, dwell time refers to the time period from release of a unit train at origin until actual movement by the receiving carrier. For manifest trains, dwell time refers to the time period from when the train is released at the terminal until actual movement by the railroad.

    (5) The weekly average number of trains holding per day sorted by train type (intermodal, grain unit, coal unit, automotive unit, crude oil unit, ethanol unit, fertilizer unit, other unit, and manifest) and by cause (crew, locomotive power, or other). Railroads are instructed to run a same-time snapshot of trains holding each day, and then to calculate the average for the reporting week.

    (6) The weekly average of loaded and empty cars, operating in normal movement and billed to an origin or destination, which have not moved in 48 hours or more sorted by service type (intermodal, grain, coal, crude oil, automotive, ethanol, fertilizer, or all other). In order to derive the averages for the reporting week, carriers are requested to run a same-time snapshot each day of the reporting week, capturing cars that have not moved in 48 hours or more. The number of cars captured on the daily snapshot for each category should be added, and then divided by the number of days in the reporting week, typically seven days. In deriving this data, carriers should include cars in normal service anywhere on their system, but should not include cars placed at a customer facility, in constructive placement, placed for interchange to another carrier, in bad order status, in storage, or operating in railroad service (e.g., ballast).

    (7) The weekly total number of grain cars loaded and billed, reported by State, aggregated for the following Standard Transportation Commodity Codes (STCCs): 01131 (barley), 01132 (corn), 01133 (oats), 01135 (rye), 01136 (sorghum grains), 01137 (wheat), 01139 (grain, not elsewhere classified), 01144 (soybeans), 01341 (beans, dry), 01342 (peas, dry), and 01343 (cowpeas, lentils, or lupines). “Total grain cars loaded and billed” includes cars in shuttle service; dedicated train service; reservation, lottery, open and other ordering systems; and private cars. Additionally, separately report the total cars loaded and billed in shuttle service (or dedicated train service), if any, versus total cars loaded and billed in all other ordering systems, including private cars.

    (8) For the aggregated STCCs in paragraph (a)(7) of this section, report by State the following:

    (i) Running total of orders placed;

    (ii) The running total of orders filled;

    (iii) For orders which have not been filled, the number of orders that are 1-10 days past due and 11+ days past due, as measured from when the car was due for placement under the railroad's governing tariff. Railroads are instructed to report data for railroad-owned or leased cars that will move in manifest service.

    (9) Weekly average coal unit train loadings or carloadings versus planned loadings for the reporting week by coal production region. Railroads have the option to report unit train loadings or carloadings, but should be consistent week over week.

    (10) The average grain shuttle or dedicated grain train trips per month (TPM), for the total system and by region, versus planned TPM, for the total system and by region, included in the first report of each month, covering the previous calendar month.

    (11) Weekly originated carloads by the following commodity categories:

    (i) Chemicals;

    (ii) Coal;

    (iii) Coke;

    (iv) Crushed stone, sand, and gravel;

    (v) Farm products except grain;

    (vi) Fertilizer (STCC Codes: 14-7XX-XX, 28-125-XX, 28-18X-XX, 28-19X-XX, 28-71X-XX, and 49-18X-XX);

    (vii) Food and kindred products;

    (viii) Grain mill products;

    (ix) Grain;

    (x) Iron and steel scrap;

    (xi) Lumber and wood products;

    (xii) Metallic ores;

    (xiii) Metals;

    (xiv) Motor vehicles and equipment;

    (xv) Non metallic minerals;

    (xvi) Petroleum products;

    (xvii) Primary forest products;

    (xviii) Pulp, paper, and allied products;

    (xix) Stone, clay, and glass products;

    (xx) Waste and scrap materials;

    (xxi) All other;

    (xxii) Containers;

    (xxiii) Trailers.

    (12)(i) Car order fulfillment percentage for the reporting week by car type:

    (A) Box;

    (B) Covered hopper;

    (C) Center-beam;

    (D) Gondola;

    (E) Flatcar;

    (F) Intermodal;

    (G) Multilevel (automotive);

    (H) Open hopper;

    (I) Tank car;

    (J) Other.

    (ii) Car order fulfillment should be stated as the percentage of cars due to be placed during the reporting week, as determined by the governing tariff, versus cars actually and on constructive placement.

    (b) The Class I railroads operating at the Chicago gateway (or AAR on behalf of the Class I railroads operating at the Chicago gateway) must jointly report the following performance data elements for the reporting week:

    (1) Average daily car volume in the following Chicago area yards: Barr, Bensenville, Blue Island, Calumet, Cicero, Clearing, Corwith, Gibson, Kirk, Markham, and Proviso for the reporting week; and

    (2) Average daily number of trains held for delivery to Chicago sorted by receiving carrier for the reporting week. The average daily number should be derived by taking a same time snapshot each day of the reporting week, capturing the trains held for each railroad at that time, and then adding those snapshots together and dividing by the days in the reporting week. For purposes of this request, “held for delivery” refers to a train staged by the delivering railroad short of its scheduled arrival at the Chicago gateway at the request of the receiving railroad, and that has missed its scheduled window for arrival.

    Note to paragraph (b):

    If Chicago terminal yards not identified in paragraph (b)(1) of this section are included in the Chicago Transportation Coordination Office's (CTCO) assessment of the fluidity of the gateway for purposes of implementing service contingency measures, then the data requested in paragraph (b)(1) of this section shall also be reported for those yards.

    (c) The Class I railroad members of the CTCO (or one Class I railroad member of the CTCO designated to file on behalf of all Class I railroad members, or AAR) must:

    (1) File a written notice with the Board when the CTCO changes its operating Alert Level status, within one business day of that change in status.

    (2) If the CTCO revises its protocol of service contingency measures, file with the Board a detailed explanation of the new protocol, including both triggers and countermeasures, within seven days of its adoption.

    (d) Class I railroads are instructed to submit annually a description of significant rail infrastructure projects that will be commenced during the current calendar year, and a six month update on those projects. Initial reports are to be filed on March 1 and updated on September 1. Railroads are requested to report in a narrative form that briefly describes each project, its purpose, location (State/counties), and projected date of completion. “Significant project” is defined as a project with anticipated expenditures of $75 million or more over the life of the project. In the event that March 1 or September 1 is a Federal holiday or falls on a day when STB offices are closed for any other reason, then the report should be submitted on the next business day when the offices are open.

    [FR Doc. 2016-10442 Filed 5-4-16; 8:45 am] BILLING CODE 4915-01-P
    81 87 Thursday, May 5, 2016 Notices DEPARTMENT OF AGRICULTURE Forest Service Southern New Mexico Resource Advisory Committee AGENCY:

    Forest Service, USDA.

    ACTION:

    Notice of meeting.

    SUMMARY:

    The Southern New Mexico Resource Advisory Committee (RAC) will meet in Socorro, New Mexico. The committee is authorized under the Secure Rural Schools and Community Self-Determination Act (the Act) and operates in compliance with the Federal Advisory Committee Act. The purpose of the committee is to improve collaborative relationships and to provide advice and recommendations to the Forest Service concerning projects and funding consistent with title II of the Act. RAC information can be found at the following Web site: http://www.fs.usda.gov/main/gila/workingtogether/advisorycommittees.

    DATES:

    The meeting will be held June 8, 2016, at 8:30 a.m.

    All RAC meetings are subject to cancellation. For status of meeting prior to attendance, please contact the person listed under For Further Information Contact.

    ADDRESSES:

    The meeting will be held at the Socorro County Annex Building, 198 Neel Avenue, Socorro, New Mexico.

    Written comments may be submitted as described under Supplementary Information. All comments, including names and addresses when provided, are placed in the record and are available for public inspection and copying. The public may inspect comments received at the Gila National Forest Office. Please call ahead to facilitate entry into the building.

    FOR FURTHER INFORMATION CONTACT:

    Julia Faith Rivera, RAC Coordinator, by phone at 575-388-8212 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 review and recommend funding of project proposals.

    The meeting is open to the public. The agenda will include time for people to make oral statements of three minutes or less. Individuals wishing to make an oral statement should request in writing by May 18, 2016, to be scheduled on the agenda. Anyone who would like to bring related matters to the attention of the committee may file written statements with the committee staff before or after the meeting. Written comments and requests for time to make oral comments must be sent to Julia Faith Rivera, RAC Coordinator, 3005 E. Camino del Bosque, Silver City, New Mexico 88061; by email to [email protected], or via facsimile to 575-388-8204.

    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 29, 2016. Adam Mendonca, Forest Supervisor, Gila National Forest.
    [FR Doc. 2016-10531 Filed 5-4-16; 8:45 am] BILLING CODE 3411-15-P
    DEPARTMENT OF COMMERCE [Docket No. 160309221-6221-01] RIN 0605-XC034 Privacy Act of 1974; Amended System of Records AGENCY:

    National Oceanic and Atmospheric Administration, U.S. Department of Commerce.

    ACTION:

    Notice of proposed amendment to Privacy Act system of records: COMMERCE/NOAA-3, Commissioned Officer Official Personnel Folders.

    SUMMARY:

    This notice announces the Department of Commerce's (Department's) proposal to amend the system of records entitled “COMMERCE/NOAA-3, “Commissioned Officer Official Personnel Folders” under the Privacy Act of 1974, as amended. This amendment would change the name of the SORN from the “Commissioned Officer Official Personnel Folders” to “NOAA Corps Officer Official Personnel Folders.” This amendment would also update the following sections of the current NOAA-3: Addresses, For Further Information Contact, Security Classification, Authority for Maintenance of the System, Storage, Purposes, and Routine Uses.

    The National Oceanic and Atmospheric Administration (NOAA) Commissioned Officer Corps (NOAA Corps) is the uniformed service of NOAA, a bureau of the Department. The NOAA Corps provides a cadre of professionals trained in engineering, earth sciences, oceanography, meteorology, fisheries science, and other related disciplines who serve their country by supporting NOAA's mission of surveying the Earth's oceans, coasts, and atmosphere to ensure the economic and physical well-being of the Nation. Personnel records and folders must be created as they are required by law, Executive Order, operational guidance from central management agencies, and/or agency records management programs.

    DATES:

    To be considered, written comments must be submitted on or before June 6, 2016. Unless comments are received, the amended system of records will become effective as proposed on June 14, 2016. If comments are received, the Department will publish a subsequent notice in the Federal Register within 10 days after the comment period closes, stating that the current system of records will remain in effect until publication of a final action in the Federal Register.

    ADDRESSES:

    Comments may be mailed to Director, NOAA Corps, 8403 Colesville Road, Suite 500, NOAA, Silver Spring, Maryland 20910.

    FOR FURTHER INFORMATION CONTACT:

    Director, NOAA Corps, 8403 Colesville Road, Suite 500, NOAA, Silver Spring, Maryland 20910.

    SUPPLEMENTARY INFORMATION:

    This notice announces NOAA's proposal to amend the system of records entitled “COMMERCE/NOAA-3, “Commissioned Officer Official Personnel Folders.” In addition to changing the name to NOAA Corps Officer Official Personnel Folders, this system of records is being updated to add Addresses, For further Information Contact, and Security Classification sections. It is also needed to update the Authority for maintenance of the system and the Policies and practices for storing, retrieving, accessing, retaining and disposing of records in the system sections. NOAA Corps records are created and maintained for all members—active, retired, and deceased—of the NOAA Corps. Selected information is disseminated to determine eligibility for retention, promotion, retirement, separation, and other personnel actions; physical fitness; entitlement to pay and various allowances; entitlement to social security benefits, Veteran's benefits, unemployment compensation, waivers for repayment of student loans, death benefits, survivor benefits, and FHA in-service loans; assignments; selective service status; and to report taxes withheld.

    COMMERCE/NOAA-3 System Name:

    COMMERCE/NOAA-3, NOAA Corps Officer Official Personnel Folders

    Security Classification:

    Moderate

    System Location:

    Office of the Director, NOAA Corps, NOAA, Silver Spring, Maryland 20910.

    Categories of Individuals Covered By The System:

    Commissioned Officers of the NOAA Corps (active, retired, and deceased) and commissioned officers who have been separated within previous six months.

    Categories of Records in the System:

    This information is collected and/or maintained by all systems covered by this system of records: Name, social security number, selective service number, promotion history, assignment history, performance/awards history, date of birth, education/training history, prior employment history, prior uniformed service, relatives, references, discipline, insurance, and similar personal information.

    Authority for Maintenance of the System:

    Navigation and Navigable Waters, 33 U.S.C. 853a-t, 854a-a2, 855, 856, 857, 857-1-5, 857a, 858, 864, 865, 872-876; Departmental Regulations, 5 U.S.C. 301; Judiciary and Judicial Procedure, 28 U.S.C. 533-535; Records Management by Agency Heads, 44 U.S.C. 3101; and Security Requirements for Government Employment, E.O. 10450.

    Purposes:

    Selected information is disseminated to determine eligibility for retention, promotion, retirement, separation, and other personnel actions, entitlement to pay and various allowances, Veteran's benefits, unemployment compensation, death benefits, survivor benefits, and FHA In-service loans, assignments, and selective service status. Users are: Selective Service System; Veteran's Administration; Federal Housing Administration; Social Security Administration; Public Health Service; Department of Defense elements; Taxing authorities (Federal, State and local); unemployment compensation authorities; and the organization to which the officer is assigned such as branches of U.S. Military Service, branches of foreign military services, World Weather Organizations, etc.

    Routine Uses of Records Maintained in the System:

    In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act, these records or information contained therein may specifically be disclosed outside the Department. The records or information contained therein may specifically be disclosed as a routine use as stated below. The Department will, when so authorized, make the determination as to the relevancy of a record prior to its decision to disclose a document.

    1. In the event that a system of records maintained by the Department to carry out its functions indicates a violation or potential violation of law or contract, whether civil, criminal or regulatory in nature and whether arising by general statute or particular program statute or contract, rule, regulation, or order issued pursuant thereto, or the necessity to protect an interest of the Department, the relevant records in the system of records, may be referred to the appropriate agency, whether Federal, State, local, or foreign, charged with the responsibility of investigating or prosecuting such violation or charged with enforcing or implementing the statute or contract, rule, regulation, or order issued pursuant thereto, or protecting the interest of the Department.

    2. A record from this system of records may be disclosed in the course of presenting evidence to a court, magistrate, hearing officer or administrative tribunal, including disclosures to opposing counsel in the course of settlement negotiations, administrative appeals and hearings.

    3. A record in this system of records may be disclosed to a Member of Congress submitting a request involving an individual when the individual has requested assistance from the Member with respect to the subject matter of the record.

    4. A record in this system of records may be disclosed to the Department of Justice in connection with determining whether the Freedom of Information Act (5 U.S.C. 552) requires disclosure thereof.

    5. A record in this system of records may be disclosed to a contractor of the Department having need for the information in the performance of the contract but not operating a system of records within the meaning of 5 U.S.C. 552a(m).

    6. A record in this system of records may be disclosed to appropriate agencies, entities and persons when: (1) It is suspected or determined that the security or confidentiality of information in the system of records has been compromised; (2) the Department has determined that as a result of the suspected or confirmed compromise there is a risk of harm to economic or property interests, identity theft or fraud, or harm to the security or integrity of this system or whether systems or programs (whether maintained by the Department or another agency or entity) that rely upon the compromised information; and (3) the disclosure made to such agencies, entities, and persons is reasonably necessary to assist in connection with the Department's efforts to respond to the suspected or confirmed compromise and to prevent, minimize, or remedy such harm.

    7. A record from this system of records may be disclosed, as a routine use, to a Federal, state or local agency maintaining civil, criminal or other relevant enforcement information or other pertinent information, such as current licenses, if necessary to obtain information relevant to a Department decision concerning the assignment; hiring or retention of an individual; the issuance of a security clearance; the letting of a contract; or the issuance of a license, grant or other benefit.

    8. A record from this system of records may be disclosed, as a routine use, to a Federal, state, local, or international agency, in response to its request, in connection with the assignment, hiring or retention of an individual, the issuance of a security clearance, the reporting of an investigation of an individual, the letting of a contract, or the issuance of a license, grant, or other benefit by the requesting agency, to the extent that the information is relevant and necessary to the requesting agency's decision on the matter.

    9. A record in this system of records may be disclosed, as a routine use, to the Office of Management and Budget in connection with the review of private relief legislation as set forth in OMB Circular No. A-19 at any stage of the legislative coordination and clearance process as set forth in that Circular.

    10. A record in this system may be transferred, as a routine use, to the Office of Personnel Management: For personnel research purposes; as a data source for management information; for the production of summary descriptive statistics and analytical studies in support of the function for which the records are collected and maintained; or for related manpower studies.

    11. A record from this system of records may be disclosed, as a routine use, to the Administrator, General Services Administration (GSA), or his designee, during an inspection of records conducted by GSA as part of that agency's responsibility to recommend improvements in records management practices and programs, under authority of 44 U.S.C. 2904 and 2906. Such disclosure shall be made in accordance with the GSA regulations governing inspection of records for this purpose, and any other relevant (i.e. GSA or Department) directive. Such disclosure shall not be used to make determinations about individuals.

    12. A record in this system of records which contains medical information may be disclosed, as a routine use, to the medical advisor of any individual submitting a request for access to the record under the Act and 15 CFR part 4b if, in the sole judgment of the Department, disclosure could have an adverse effect upon the individual, under the provision of 5 U.S.C. 552a(f)(3) and implementing regulations at 15 CFR part 4b.26.

    Disclosure to Consumer Reporting Agencies:

    Disclosure to consumer reporting agencies pursuant to 5 U.S.C. 552a(b)(12) may be made from this system to “consumer reporting agencies” as defined in the Fair Credit Reporting Act (15 U.S.C. 1681a(f)) and the Federal Claims Collection Act of 1966 (31 U.S.C. 3701(a)(3)).

    Policies and Practices for Storing, Retrieving, Accessing, Retaining, and Disposing of Records in the System: Storage:

    Paper records in file folders in a secured location and electronic records in a database.

    Retrievability:

    Records are organized and retrieved by the individual's name.

    Safeguards:

    Records are maintained in a secured area and in a database. Access is granted only on the authority of the Director, NOAA Corps or the Director, Commissioned Personnel Center.

    Retention and Disposal:

    Records are retained indefinitely on active duty officers; retired, discharged and deceased officers' records are retained for approximately one year then transferred to the National Archives and Records Administration (NARA), National Records Center, Kansas City, Missouri 64141.

    System Manager and Address:

    Director, NOAA Corps and Director, Commissioned Personnel Center (CPC), 8403 Colesville Road, Suite 500, NOAA, Silver Spring, Maryland 20910.

    Notification Procedure:

    Information may be obtained from: Director, CPC, see above address. Requester should provide full name, address, social security number, and date of birth, date of separation, pursuant to the inquiry provisions of the Department's rules which appear in 15 CFR part 4b.

    Record Access Procedures:

    See NOAA Corps Directive, Chapter 6, part 16107, Requests for Information.

    Contesting Record Procedures:

    The Department's rules for access, for contesting contents, and appealing initial determinations by the individuals concerned appear in 15 CFR part 4b.

    Record Source Categories:

    Subject individual, official correspondence and forms generated by routine personnel actions, previous employers, prior military service, Selective Service System, Federal Housing Administration, Social Security Administration, and similar sources.

    Exemptions Claimed For System:

    Pursuant to 5 U.S.C. 552a(k)(5), all investigatory material in the record which meets the criteria of 5 U.S.C. 552a(k)(5), is exempted from the notice, access, and contest requirements (under 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (H) and (I), and (f)) of the agency regulations in order to fulfill commitments made to protect the confidentiality of sources, and to maintain access to sources of information which are necessary to determine an employee's suitability for employment in the NOAA Corps.

    Dated: May 2, 2016. Michael J. Toland, Department of Commerce, Freedom of Information/Privacy Act Officer.
    [FR Doc. 2016-10541 Filed 5-4-16; 8:45 am] BILLING CODE 3510-12-P
    DEPARTMENT OF COMMERCE Foreign-Trade Zones Board [B-26-2016] Foreign-Trade Zone (FTZ) 76—Bridgeport, Connecticut; Notification of Proposed Production Activity; ASML US, Inc., (Optical, Metrology, and Lithography System Modules), Newtown and Wilton, Connecticut

    ASML US, Inc. (ASML), operator of Subzone 76A, submitted a notification of proposed production activity to the FTZ Board for its facilities in Newtown and Wilton, Connecticut. The notification conforming to the requirements of the regulations of the FTZ Board (15 CFR 400.22) was received on April 26, 2016.

    The facilities are used for the production of advanced system modules for optical, metrology, and lithography semiconductor manufacturing equipment. 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 ASML from customs duty payments on the foreign status materials and components used in export production. On its domestic sales, ASML would be able to choose the duty rate during customs entry procedures that applies to advanced system modules for optical, metrology, and lithography semiconductor manufacturing equipment (free) for the foreign status inputs noted below. Customs duties also could possibly be deferred or reduced on foreign status production equipment.

    The components and materials sourced from abroad include: Sample holders; tool tests; absorption tubes; silica gel; aluminum oxides; iron oxides/hydroxides; SIC powder fillers; greases; oils; hydraulic fluids; adhesives; pastes; epoxies; Loctite; special bonding adhesives; photographic plates/hardener/developer/topcoat; artificial graphite; discs; wafers; chemical elements; hardening agents; fire resistant hydraulic fluids; zero oxygen solutions; heat transfer pastes; heat conducted pastes; plastic hoses/hose sets/tubes/shrink sleeves/connection sets/sleeves/couplings/plugs/adapters/unions/connectors/adhesive tape/foil/strip/labels/tape/stickers/protective foil/cable guiding foil/insulation/sheets/foam/foam containers and seals/packaging/boxes/covers/bins/lids/cases/containers/sacks/bags/packaging/pallets/shrink sleeve/seals/timing belts/geared belts/shims/covers/spacers/thermal pads/protective caps/washers/wire end slices/cable ties/shrink sleeves/spiral wrap/zipper tubing/grommets/grommet strips/wiring ducts/front plates/guide strips/sidewalls/brackets/plugs/screws/spacers/bolts/nuts/knobs/o-rings/insulation/springs/clamps/gaskets/syringes/castors/pins/rings/shock absorbers/bushings; rubber cords/profiles/strip/gloves/gaskets/seals/o-rings/grommets/nuts/pads/bellows/profiles/washers/dampers; cases of textile materials (HTSUS Subheading 4202.99); wooden packing cases/boxes/crates/packaging/packing material; corrugated cartons/boxes; paperboard and related containers; paper labels/diagrams/designs/stickers; cellulose wadding/webbing; printed materials; technical procedures manuals; cleaning wipes; cleaning stones; lapping film; worked float glass; lens blanks; optical elements/prisms/mirrors/filters; glass petri dishes/spheres/beads/holders/viewports/covers; steel tubes/pipes/flanges/ferrules/couplings/elbows/unions/bends/connectors/couplings/adapters/bushings/nipples/plugs/sleeves/bellows/elbows/bushings/inserts/glands/coverings/flooring/platforms/cables/wires/chains/chain parts/bolts and nuts (stainless)/clamps/knobs/pins/rods/spacers/studs/rivets/rings/gaskets/dowels/caps/leaf springs/plug seals/ring seals/springs/wire/covers/spring clips/shims/rackets/plates/strips/rails/clamps/ducts/ferrules/panels/inserts/bars/studs/holders/pins/washers/handles/latches/dampers/guides/mounts/spindles/frames/balls/housings/carrying arms/lids/links/vanes/shafts/shields/restrictors/plungers/disks/blocks/nipples/alignment tools/adjuster tools/supports/straps/lock assemblies/container assemblies/bellows; copper foil/nipples/couplings/platforms/unions/plugs/banjos/sleeves/adaptors/pillars/screws/bolts/nuts/rings/spacers/plain bearings/gaskets/caps/ferrules/pads/clamps/strips; nickel couplings/rings/gaskets/dampers/inserts/plates/blocks/bushings/covers/pads/brackets/support clamps; aluminum clad/unions/adaptors/connection tubes/couplings/flanges/banjos/couplings/plates/hatches/jars/cups/covers/screws/rivets/spacers/washers/pins/nuts/plates/tool stands/brackets/caps/profiles/bars/guards/cylinders/manifolds/handles/holders/hinges/clamps/profiles/railings/carrying arms/housings/mounts/holders/flanges/plugs/frames/fittings/blocks/tube supports/plungers/strips/shields/inserts/air ducts/guide bushings/rings/studs/locking assemblies/fixtures/positioning tools/stands/vanes/struts/lock shim assemblies/spacers/adaptors/wiring ducts/identification tags; titanium inserts/clamp ties/clip filter holders/mounts/clip spacers/spring washer spacers/nut spacers/magnet pins/link arms/washer plates/blocks/flexures/removable foots; tweezers; pliers; wrenches; ratchets; allen keys; spanners; nut drivers; hex screwdriver bits and tool bits; extension shafts; hammers; screwdrivers; metal clamps; drill bits; scalpel crescent blades; razor blades; padlocks; casters; latches; adjuster knobs; handles; identification plates; vacuum pumps; fans; heat exchange units; filters; spindle traps; hoisting tools; grinding and polishing machines; computers; CPU boards; transponder readers; barcode reader assemblies; data storage units; ATCA racks; carrier boards; interface assemblies; PCI boards and cards; transceiver modules; bus adapters; Ethernet switches/transceivers/connection boxes; network cards; barcode readers; dongles; parts of automatic data processing machines; memory/processor modules; rack assemblies; print servers; vacuum pincets and tubes; vessel presses; pneumatic units/manifolds; generators; locking disk tools; top plate assemblies; polarization assemblies; duct plates; dump assemblies; air cylinders; plunger assemblies; wafer clamps; valves (pressure reducing, check, transmission, safety, relief, ball, solenoid, ballcock, regulator, angle, in-line, gate, two-way); hand-operated appliances; manifold assemblies; bearing cups/bushings/discs/spacers; camshafts; crankshafts; drive shafts; transmission shafts; plain shaft bearings; bearing housings; gear boxes; ball screws; gears; pulleys; air bearings; air spindle traps; conical gear modules; gear wheel assemblies; gaskets; ring seals/washers; electrical cabinets; low-end/high-end/advanced modules for semiconductor manufacturing equipment (optical, lithography); electric motors; electric assemblies/coils; power amplifiers/supplies/inverters; permanent magnets; Ethernet switches; encoders; tag readers; cameras; smoke sensors; printed circuit boards; electrical switches/connectors; optical fiber connectors; cable connectors; multi-point electrical apparatus; electrical boards; electrical panels/consoles/desks/cables/bundles/cabinets/bases/encoder strips/insulators/switching apparatus; sealed beams; electric lamps; electrical semiconductor photosensitive devices/signal generators; electric synchros/transducers/diffusers/interpolators/amplifiers/converters/controllers; coaxial cables/electric conductors; insulated wire; optical fiber cables; transport containers and carts; sheets/plates of polarizing material; UV safety glasses; microscopes and related parts; lasers and related parts; measuring devices and related parts; temperature sensors; flow meters/sensors; pressure sensors; multimeters; test benches; process control instruments; temperature control instruments; metal cabinets; lighting fittings; and, black thermal transfer ribbons (duty rates range from free to 20%). Inputs included in certain textile categories (classified within HTSUS Subheading 4202.99) will be admitted to Subzone 76A in privileged foreign status (19 CFR 146.41), thereby precluding inverted tariff benefits on such items.

    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 14, 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 Pierre Duy at [email protected] or (202) 482-1378.

    Dated: May 2, 2016. Andrew McGilvray, Executive Secretary.
    [FR Doc. 2016-10626 Filed 5-4-16; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration [A-560-822, A-557-813, A-570-886, A-583-843, A-549-821, A-552-806, C-552-805] Polyethylene Retail Carrier Bags From Indonesia, Malaysia, the People's Republic of China, Taiwan, Thailand, and the Socialist Republic of Vietnam: Continuation of Antidumping Duty Orders and Countervailing Duty Order AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    SUMMARY:

    The Department of Commerce (the Department) and the International Trade Commission (the ITC) have determined that revocation of the antidumping duty (AD) orders on polyethylene retail carrier bags (PRCBs) from Indonesia, Malaysia, the People's Republic of China (PRC), Taiwan, Thailand, and the Socialist Republic of Vietnam (Vietnam) would likely lead to continuation or recurrence of dumping and material injury to an industry in the United States. The Department and the ITC have also determined that revocation of the countervailing duty (CVD) order on PRCBs from Vietnam would likely lead to continuation or recurrence of net countervailable subsidies and material injury to an industry in the United States. Therefore, the Department is publishing a notice of continuation of the AD orders and CVD order.

    DATES:

    Effective Date: May 5, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Thomas Schauer or Minoo Hatten, AD/CVD Operations, Office I, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-0410 or (202) 482-1690, respectively.

    SUPPLEMENTARY INFORMATION: Background

    On April 1, 2015, the Department initiated 1 and the ITC instituted 2 five-year (sunset) reviews of the AD orders on PRCBs from Indonesia, Malaysia, the PRC, Taiwan, Thailand, and Vietnam, and the CVD order on PRCBs from Vietnam 3 pursuant to section 751(c) of the Tariff Act of 1930, as amended (the Act). As a result of its reviews, the Department determined that revocation of the AD orders would likely lead to continuation or recurrence of dumping and that revocation of the CVD order would likely lead to continuation or recurrence of net countervailable subsidies. Therefore, the Department notified the ITC of the magnitude of the margins and the net countervailable subsidy rate likely to prevail should the orders be revoked, pursuant to sections 751(c)(1) and 752(b) and (c) of the Act.4

    1See Initiation of Five-Year (“Sunset”) Review, 80 FR 17388 (April 1, 2015).

    2See Polyethylene Retail Carrier Bags From China, Indonesia, Malaysia, Taiwan, Thailand, and Vietnam; Institution of Five-Year Reviews, 80 FR 17490 (April 1, 2015).

    3See Antidumping Duty Orders: Polyethylene Retail Carrier Bags From Indonesia, Taiwan, and the Socialist Republic of Vietnam, 75 FR 23667 (May 4, 2010); Antidumping Duty Order: Polyethylene Retail Carrier Bags From Malaysia, 69 FR 48203 (August 9, 2004); Antidumping Duty Order: Polyethylene Retail Carrier Bags From the People's Republic of China, 69 FR 48201 (August 9, 2004); Antidumping Duty Order: Polyethylene Retail Carrier Bags From Thailand, 69 FR 48204 (August 9, 2004); and Polyethylene Retail Carrier Bags From the Socialist Republic of Vietnam: Countervailing Duty Order, 75 FR 23670 (May 4, 2010).

    4See Polyethylene Retail Carrier Bags From Indonesia, Malaysia, the People's Republic of China, Taiwan, Thailand, and the Socialist Republic of Vietnam: Final Results of the Expedited Sunset Reviews of the Antidumping Duty Orders, 80 FR 39997 (July 13, 2015), and Polyethylene Retail Carrier Bags From the Socialist Republic of Vietnam: Final Results of Expedited First Sunset Review of the Countervailing Duty Order, 80 FR 46539 (August 5, 2015).

    On April 22, 2016, the ITC published its determination that revocation of the AD orders on PRCBs from Indonesia, Malaysia, the PRC, Taiwan, Thailand, and Vietnam and the CVD order on PRCBs from Vietnam would likely lead to continuation or recurrence of material injury to an industry in the United States within a reasonably foreseeable time, pursuant to section 751(c) of the Act.5

    5See Polyethylene Retail Carrier Bags From China, Indonesia, Malaysia, Taiwan, Thailand, and Vietnam; Determinations, 81 FR 23749 (April 22, 2016). See also the letter from the ITC Chairman Meredith M. Broadbent to Deputy Assistant Secretary Christian Marsh dated April 18, 2016.

    Scopes of the Orders

    The merchandise covered in the sunset reviews of the AD orders on PRCBs from Indonesia, Malaysia, the PRC, Taiwan, Thailand, and Vietnam and the CVD order on PRCBs from Vietnam is PRCBs, which may be referred to as t-shirt sacks, merchandise bags, grocery bags, or checkout bags. The subject merchandise is defined as non-sealable sacks and bags with handles (including drawstrings), without zippers or integral extruded closures, with or without gussets, with or without printing, of polyethylene film having a thickness no greater than 0.035 inch (0.889 mm) and no less than 0.00035 inch (0.00889 mm), and with no length or width shorter than 6 inches (15.24 cm) or longer than 40 inches (101.6 cm). The depth of the bag may be shorter than 6 inches but not longer than 40 inches (101.6 cm).

    PRCBs are typically provided without any consumer packaging and free of charge by retail establishments, e.g., grocery, drug, convenience, department, specialty retail, discount stores, and restaurants, to their customers to package and carry their purchased products. The scope of the order excludes (1) polyethylene bags that are not printed with logos or store names and that are closeable with drawstrings made of polyethylene film and (2) polyethylene bags that are packed in consumer packaging with printing that refers to specific end-uses other than packaging and carrying merchandise from retail establishments, e.g., garbage bags, lawn bags, trash-can liners.

    As a result of changes to the Harmonized Tariff Schedule of the United States (HTSUS), imports of the subject merchandise are currently classifiable under statistical category 3923.21.0085 of the HTSUS. Furthermore, although the HTSUS subheading is provided for convenience and customs purposes, the written description of the scope of the order is dispositive.

    Continuation of the Orders

    As a result of the determinations by the Department and the ITC that revocation of the AD orders and the CVD order would likely lead to a continuation or recurrence of dumping and, in the case of Vietnam, countervailable subsidies, and material injury to an industry in the United States, pursuant to section 751(d)(2) of the Act and 19 CFR 351.218(a), the Department hereby orders the continuation of the AD orders on PRCBs from Indonesia, Malaysia, the PRC, Taiwan, Thailand, and Vietnam and the CVD order on PRCBs from Vietnam. U.S. Customs and Border Protection will continue to collect cash deposits at the rates in effect at the time of entry for all imports of subject merchandise.

    The effective date of the continuation of the AD orders and the CVD order will be the date of publication in the Federal Register of this notice of continuation. Pursuant to section 751(c)(2) of the Act and 19 CFR 351.218(c)(2), the Department intends to initiate the next five-year review of these orders not later than 30 days prior to the fifth anniversary of the effective date of this continuation notice.

    These five-year sunset reviews and this notice are in accordance with sections 751(c) and 751(d)(2) of the Act and published pursuant to section 777(i)(1) of the Act and 19 CFR 351.218(f)(4).

    Dated: April 28, 2016. Ronald K. Lorentzen, Acting Assistant Secretary for Enforcement and Compliance.
    [FR Doc. 2016-10625 Filed 5-4-16; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration [A-580-867] Large Power Transformers From the Republic of Korea: Amended Final Results of Antidumping Duty Administrative Review; 2013-2014 AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    SUMMARY:

    The Department of Commerce (the Department) is amending its final results in the administrative review of the antidumping duty order on large power transformers from the Republic of Korea (Korea) for the period August 1, 2013, through July 31, 2014, to correct a ministerial error.

    DATES:

    Effective Date: May 5, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Brian Davis (Hyosung) or Edythe Artman (Hyundai), AD/CVD Operations, Office VI, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-7924 or (202) 482-3931, respectively.

    SUPPLEMENTARY INFORMATION:

    Background

    On March 6, 2016, the Department published the final results for the 2013/2014 administrative review of the antidumping duty order on large power transformers from Korea.1

    1See Large Power Transformers From the Republic of Korea: Final Results of Antidumping Duty Administrative Review; 2013-2014, 81 FR 14087 (March 6, 2016) and accompanying Issues and Decision Memorandum (Final Results).

    On March 16, 2016, Petitioner, ABB Inc., and one of the respondents, Hyosung Corporation and HICO America, Inc. (collectively, Hyosung), submitted allegations of ministerial errors. The other respondent, Hyundai Heavy Industries Co., Ltd. and Hyundai Corporation, USA (collectively, Hyundai) and Petitioner filed comments on the allegations on March 21, 2016. Based on our analysis of the allegations, we made changes to the calculation of the weighted-average dumping margin for Hyosung and for the non-individually examined respondents.2

    2 This analysis is set forth in the Memorandum to Christian Marsh, Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations, from Scot Fullerton, Director, Antidumping and Countervailing Duty Operations, Office VI, on the subject of “Ministerial Error Memorandum for the Amended Final Results of the 2013/2014 Administrative Review of the Antidumping Duty Order on Large Power Transformers from the Republic of Korea”, dated April 29, 2016 (Ministerial Error Memorandum).

    Scope of the Order

    The scope of this order covers large liquid dielectric power transformers (LPTs) having a top power handling capacity greater than or equal to 60,000 kilovolt amperes (60 megavolt amperes), whether assembled or unassembled, complete or incomplete.

    Incomplete LPTs are subassemblies consisting of the active part and any other parts attached to, imported with or invoiced with the active parts of LPTs. The “active part” of the transformer consists of one or more of the following when attached to or otherwise assembled with one another: the steel core or shell, the windings, electrical insulation between the windings, the mechanical frame for an LPT.

    The product definition encompasses all such LPTs regardless of name designation, including but not limited to step-up transformers, step-down transformers, autotransformers, interconnection transformers, voltage regulator transformers, rectifier transformers, and power rectifier transformers.

    The LPTs subject to this order are currently classifiable under subheadings 8504.23.0040, 8504.23.0080 and 8504.90.9540 of the Harmonized Tariff Schedule of the United States (HTSUS). Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the scope of this order is dispositive.

    Ministerial Error

    Section 751(h) of the Tariff Act of 1930, as amended (the Act), and 19 CFR 351.224(f) define a “ministerial error” as an error “in addition, subtraction, or other arithmetic function, clerical error resulting from inaccurate copying, duplication, or the like, and any other similar type of unintentional error which the Secretary considers ministerial.”

    Hyosung argues that in the Final Results, the Department did not update certain programming language in the Margin Calculation Program. As a result, Hyosung contends, the programming language did not fully implement the Department's intended changes. We agree with Hyosung and, therefore, have corrected our Margin Calculation Program.3 As a result, the weighted-average dumping margin for Hyosung changes from 9.40 percent to 7.89 percent. Furthermore, the rate for the respondents not selected for individual examination, which is based on the weighted, simple-average of the two respondents selected for individual examination, changes from 6.74 percent to 5.98 percent.4

    3See Ministerial Error Memorandum at 3.

    4 The rate applied to the non-selected companies (i.e., ILJIN, ILJIN Electric, and LSIS) is a simple average percentage margin calculated based on Hyosung's and Hyundai's dumping margins for the period August 1, 2013, through July 31, 2014.

    Hyosung also claimed that the Department erred in its application of a freight-revenue cap, but we find this claim does not constitute a ministerial error within the meaning of 735(e) of the Act or 19 CFR 351.224(f), because our adjustment is methodological in nature and the adjustment we made was consistent with our stated intention in the Final Results. 5

    5See Ministerial Error Memorandum at 3-5.

    Finally, Petitioner argued that the Department made a ministerial error when it determined it was not necessary to cap sales-related revenues of directly-associated expenses in the calculation of Hyundai's final dumping margin. We find that this claim does not constitute a ministerial error within the meaning of 735(e) of the Act or 19 CFR 351.224(f), as our decision is methodological in nature and our intent to not impose any such caps is reflected in our final margin calculations.6

    6Id. at 6-7.

    Amended Final Results of the Review

    The Department determines that the following amended weighted-average dumping margins exist for the period August 1, 2013, through July 31, 2014:

    Company Weighted-
  • average
  • dumping
  • margin
  • (percent)
  • Hyosung Corporation 7.89 Hyundai Heavy Industries Co., Ltd 4.07 ILJIN Electric Co., Ltd 5.98 ILJIN 5.98 LSIS Co., Ltd 5.98
    Disclosure

    We will disclose the calculation memorandum used in our analysis to parties to this segment of the proceeding within five days of the date of the publication of these amended final results pursuant to 19 CFR 351.224(b).

    Duty Assessment

    The Department shall determine and U.S. Customs and Border Protection (CBP) shall assess antidumping duties on all appropriate entries.7 For Hyosung, whose sales were individually examined and whose weighted-average dumping margin is above de minimis, we calculated an ad valorem importer-specific duty assessment rate based on the ratio of the total amount of dumping calculated for the importer's examined sales to the total entered value of those same sales in accordance with 19 CFR 351.212(b)(1). Upon issuance of the amended final results of this administrative review, the Department will not issue instructions to CBP to assess antidumping duties on entries due to the preliminary injunction that was issued by the Court of International Trade after the issuance of the Final Results. See CBP Message Number 6098301.

    7 In these final results, the Department applied the assessment-rate calculation method adopted in Antidumping Proceedings: Calculation of the Weighted-Average Dumping Margin and Assessment Rate in Certain Antidumping Proceedings: Final Modification, 77 FR 8101 (February 14, 2012).

    Upon lifting of the injunction, we will determine if the duty assessment rates covering the period were de minimis, in accordance with the requirement set forth in 19 CFR 351.106(c)(2). For each respondent we will calculate importer (or customer)-specific rates by aggregating the amount of dumping calculated for all U.S. sales to that importer or customer and dividing this amount by the total entered value of the sales to that importer (or customer). Where an importer (or customer)-specific ad valorem rate is greater than de minimis, and the respondent reported reliable entered values, we will apply the assessment rate to the entered value of the importer's/customer's entries during the review period.

    For entries of subject merchandise during the POR produced by Hyosung or Hyundai which they did not know were destined for the United States, we instructed CBP to liquidate unreviewed entries at the all-others rate if there was no rate for the intermediate company or companies involved in the transaction.8 See CBP Message Numbers 6102304 and 6102305 for Hyosung and Hyundai entries, respectively.

    8See Antidumping and Countervailing Duty Proceedings: Assessment of Antidumping Duties, 68 FR 23954 (May 6, 2003).

    Cash Deposit Instructions

    The following cash deposit requirements will be effective upon publication of this notice for all shipments of subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication of these amended final results, as provided by section 751(a)(2) of the Act: (1) The cash deposit rate for respondents noted above will be the rate established in the amended final results of this administrative review; (2) for merchandise exported by manufacturers or exporters not covered in this administrative review but covered in a prior segment of the proceeding, the cash deposit rate will continue to be the company specific rate published for the most recently completed segment of this proceeding; (3) if the exporter is not a firm covered in this review, a prior review, or the original investigation, but the manufacturer is, the cash deposit rate will be the rate established for the most recently completed segment of this proceeding for the manufacturer of the subject merchandise; and (4) the cash deposit rate for all other manufacturers or exporters will continue to be 22.00 percent, the all-others rate established in the antidumping investigation.9 These cash deposit requirements, when imposed, shall remain in effect until further notice.

    9See Large Power Transformers From the Republic of Korea: Antidumping Duty Order, 77 FR 53177 (August 31, 2012).

    Notification to Importers Regarding the Reimbursement of Duties

    This notice also serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during the period of review. Failure to comply with this requirement could result in the Department's presumption that reimbursement of antidumping duties occurred and, subsequently, the assessment of doubled antidumping duties.

    Administrative Protective Order

    This notice also serves as a reminder to parties subject to administrative protective orders (APO) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3), which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of the return/destruction of APO materials, or conversion to judicial protective order, is hereby requested. Failure to comply with the regulations and the terms of an APO is a sanctionable violation.

    Notification to Interested Parties

    We are issuing and publishing these amended final results in accordance with section 751(h) of the Act and 19 CFR 351.224(f).

    Dated: April 29, 2016. Paul Piquado, Assistant Secretary for Enforcement and Compliance.
    [FR Doc. 2016-10632 Filed 5-4-16; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration [A-433-812, A-423-812, A-351-847, A-427-828, A-428-844, A-475-834, A-588-875, A-580-887, A-570-047, A-791-822, A-583-858, A-489-828] Certain Carbon and Alloy Steel Cut-To-Length Plate From Austria, Belgium, Brazil, France, the Federal Republic of Germany, Italy, Japan, the Republic of Korea, the People's Republic of China, South Africa, Taiwan, and the Republic of Turkey: Initiation of Less-Than-Fair-Value Investigations AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    DATES:

    Effective Date: April 28, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Edythe Artman at (202) 482-3931 (Austria), Elizabeth Eastwood at (202) 482-3874 (Belgium and Italy), Mark Kennedy at (202) 482-7883 (Brazil), Brandon Custard at (202) 482-1823 (Federal Republic of Germany (Germany)), Terre Keaton Stefanova at (202) 482-1280 (France), Kabir Archuletta at (202) 482-2593 (Japan), Steve Bezirganian at (202) 482-1131 (Republic of Korea (Korea)), Ryan Mullen at (202) 482-5260 (the People's Republic of China (the PRC)), Julia Hancock at (202) 482-1394 (South Africa), Tyler Weinhold at (202) 482-1121 (Taiwan), or Dmitry Vladimirov at (202) 482-0665 (Republic of Turkey (Turkey)), AD/CVD Operations, Enforcement and Compliance, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230.

    SUPPLEMENTARY INFORMATION: The Petitions

    On April 8, 2016, the Department of Commerce (the Department) received antidumping duty (AD) petitions concerning imports of certain carbon and alloy steel cut-to-length plate (CTL plate) from Austria, Belgium, Brazil, France, the Germany, Italy, Japan, Korea, the PRC, South Africa, Taiwan, and the Turkey, filed in proper form on behalf of ArcelorMittal USA LLC, Nucor Corporation, and SSAB Enterprises, LLC (collectively, Petitioners).1 The AD petitions were accompanied by countervailing duty (CVD) petitions on imports from Brazil, Korea, and the PRC. Petitioners are domestic producers of CTL plate.2

    1See Letter to the Secretary of Commerce from Petitioners “Certain Carbon and Alloy Steel Cut-to-Length Plate from Austria, Belgium, Brazil, the People's Republic of China, France, the Federal Republic of Germany, Italy, Japan, the Republic of Korea, South Africa, Taiwan, and Turkey—Petitions for the Imposition of Antidumping and Countervailing Duties” (April 8, 2016) (the Petitions).

    2See Volume I of the Petitions, at 2.

    On April 13, 2016, April 20, 2016, and April 21, 2016, the Department requested additional information and clarification of certain areas of the Petitions.3 Petitioners filed responses to these requests on April 18, 2016,4 April 21, 2016 5 , and April 25, 2016.6

    3See Country-specific letters to Petitioners from the Department concerning supplemental questions on each of the country-specific records (April 13, 2016); see also Letter to Petitioners from the Department “Petition for the Imposition of Antidumping Duties on Imports of Certain Carbon and Alloy Steel Cut-to-Length Plate from Belgium: Supplemental Questions” (April 20, 2016); and Memorandum to the File from Vicki Flynn “Phone Call with Counsel to Petitioners” (April 21, 2016).

    4See Letter from Petitioners to the Secretary of Commerce “Certain Carbon and Alloy Steel Cut-to-Length Plate from Austria, Belgium, Brazil, the People's Republic of China, France, the Federal Republic of Germany, Italy, Japan, the Republic of Korea, South Africa, Taiwan, and the Republic of Turkey—Petitioners' Amendment to Petition Volume I Related to General Issues” (April 18, 2016) (General Issues Supplement); see also responses to the Department's April 13, 2016, questionnaires concerning supplemental questions on each of the country-specific records (April 18, 2016); and Letter to the Secretary of Commerce from Petitioners “Certain Carbon and Alloy Steel Cut-to-Length Plate from Austria, Belgium, Brazil, the People's Republic of China, France, the Federal Republic of Germany, Italy, Japan, the Republic of Korea, South Africa, Taiwan, and the Republic of Turkey—Petitioners' Amendment to Petition Volume I Related to General Issues” (April 25, 2016) (Second General Issues Supplement).

    5See Letter from Petitioners regarding the Belgium Petition “Certain Carbon and Alloy Steel Cut-to-Length Plate from Austria, Belgium, Brazil, the People's Republic of China, France, the Federal Republic of Germany, Italy, Japan, the Republic of Korea, South Africa, Taiwan, and Turkey—Petitioners' Second Amendment to Petition” (April 21, 2016); see also Letter from Petitioners to the Secretary of Commerce “Certain Carbon and Alloy Steel Cut-to-Length Plate from Austria, Belgium, Brazil, the People's Republic of China, France, the Federal Republic of Germany, Italy, Japan, the Republic of Korea, South Africa, Taiwan, and Turkey—Petitioners' Amendment to Petition Volume XVI Relating to Austria Antidumping Duties” (April 21, 2016).

    6See Second General Issues Supplement.

    In accordance with section 732(b) of the Tariff Act of 1930, as amended (the Act), Petitioners allege that imports of CTL plate from Austria, Belgium, Brazil, France, Germany, Italy, Japan, Korea, the PRC, South Africa, Taiwan, and Turkey are being, or are likely to be, sold in the United States at less than fair value within the meaning of section 731 of the Act, and that such imports are materially injuring, or threatening material injury to, an industry in the United States. Also, consistent with section 732(b)(1) of the Act, the Petitions are accompanied by information reasonably available to Petitioners supporting their allegations.

    The Department finds that Petitioners filed these Petitions on behalf of the domestic industry because Petitioners are interested parties as defined in section 771(9)(C) of the Act. The Department also finds that Petitioners demonstrated sufficient industry support with respect to the initiation of the AD investigations that Petitioners are requesting.7

    7See the “Determination of Industry Support for the Petitions” section below.

    Periods of Investigation

    Because the Petitions were filed on April 8, 2016, the period of investigation (POI) is, pursuant to 19 CFR 351.204(b)(1), as follows: April 1, 2015, through March 31, 2016, for Austria, Belgium, Brazil, France, Germany, Italy, Japan, Korea, South Africa, Taiwan, and Turkey, and October 1, 2015, through March 31, 2016, for the PRC.

    Scope of the Investigations

    The product covered by these investigations is CTL plate from Austria, Belgium, Brazil, France, Germany, Italy, Japan, Korea, PRC, South Africa, Taiwan, and Turkey. For a full description of the scope of these investigations, see the “Scope of the Investigations,” in Appendix I of this notice.

    Comments on Scope of the Investigations

    During our review of the Petitions, the Department issued questions to and received responses from Petitioners pertaining to the proposed scope to ensure that the scope language in the Petitions would be an accurate reflection of the products for which the domestic industry is seeking relief.8

    8See Memorandum to the File from Robert James “Phone Calls with Counsel to Petitioners” (November 6, 2015); see also General Issues Supplement at 1-4 and Exhibit I-Supp-8.

    As discussed in the preamble to the Department's regulations, we are setting aside a period for interested parties to raise issues regarding product coverage (scope).9 The Department will consider all comments received from parties and, if necessary, will consult with parties prior to the issuance of the preliminary determination. If scope comments include factual information (see 19 CFR 351.102(b)(21)), all such factual information should be limited to public information. In order to facilitate preparation of its questionnaires, the Department requests all interested parties to submit such comments by 5:00 p.m. Eastern Time (ET) on Wednesday, May 18, 2016, which is 20 calendar days from the signature date of this notice. Any rebuttal comments, which may include factual information, must be filed by 5:00 p.m. ET on Tuesday, May 31, 2016, which is the next business day after 10 calendar days from the deadline for initial comments.10

    9See Antidumping Duties; Countervailing Duties, 62 FR 27296, 27323 (May 19, 1997).

    10See 19 CFR 351.303(b).

    The Department requests that any factual information the parties consider relevant to the scope of the investigations be submitted during this time period. However, if a party subsequently finds that additional factual information pertaining to the scope of the investigations may be relevant, the party may contact the Department and request permission to submit the additional information. All such comments must be filed on the records of each of the concurrent AD and CVD investigations.

    Filing Requirements

    All submissions to the Department must be filed electronically using Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS).11 An electronically-filed document must be received successfully in its entirety by the time and date when it is due. Documents excepted from the electronic submission requirements must be filed manually (i.e., in paper form) with Enforcement and Compliance's APO/Dockets Unit, Room 18022, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230, and stamped with the date and time of receipt by the applicable deadlines.

    11See Antidumping and Countervailing Duty Proceedings: Electronic Filing Procedures; Administrative Protective Order Procedures, 76 FR 39263 (July 6, 2011); see also Enforcement and Compliance; Change of Electronic Filing System Name, 79 FR 69046 (November 20, 2014) for details of the Department's electronic filing requirements, which went into effect on August 5, 2011. Information on help using ACCESS can be found at https://access.trade.gov/help.aspx and a handbook can be found at https://access.trade.gov/help/Handbook%20on%20Electronic%20Filling%20Procedures.pdf.

    Comments on Product Characteristics for AD Questionnaires

    The Department will be giving interested parties an opportunity to provide comments on the appropriate physical characteristics of CTL plate to be reported in response to the Department's AD questionnaires. This information will be used to identify the key physical characteristics of the merchandise under consideration in order to report the relevant factors and costs of production accurately as well as to develop appropriate product-comparison criteria.

    Subsequent to the publication of this notice, the Department will be releasing a proposed list of physical characteristics and product-comparison criteria, and interested parties will have the opportunity to provide any information or comments that they feel are relevant to the development of an accurate list of physical characteristics. Specifically, they may provide comments as to which characteristics are appropriate to use as: (1) General product characteristics; and (2) product-comparison criteria. We note that it is not always appropriate to use all product characteristics as product-comparison criteria. We base product-comparison criteria on meaningful commercial differences among products. In other words, although there may be some physical product characteristics used by manufacturers to describe CTL plate, it may be that only a select few product characteristics take into account commercially-meaningful physical characteristics. In addition, interested parties may comment on the order in which the physical characteristics should be used in matching products. Generally, the Department attempts to list the most important physical characteristics first and the least important characteristics last.

    The Department intends to establish a deadline for relevant comments and submissions at the time it releases the proposed list of physical characteristics and product-comparison criteria. All comments and submissions to the Department must be filed electronically using ACCESS, as explained above, on the records of the Austria, Belgium, Brazil, France, Germany, Italy, Japan, Korea, the PRC, South Africa, Taiwan, and Turkey less-than-fair-value investigations.

    Determination of Industry Support for the Petitions

    Section 732(b)(1) of the Act requires that a petition be filed on behalf of the domestic industry. Section 732(c)(4)(A) of the Act provides that a petition meets this requirement if the domestic producers or workers who support the petition account for: (i) At least 25 percent of the total production of the domestic like product; and (ii) more than 50 percent of the production of the domestic like product produced by that portion of the industry expressing support for, or opposition to, the petition. Moreover, section 732(c)(4)(D) of the Act provides that, if the petition does not establish support of domestic producers or workers accounting for more than 50 percent of the total production of the domestic like product, the Department shall: (i) Poll the industry or rely on other information in order to determine if there is support for the petition, as required by subparagraph (A); or (ii) determine industry support using a statistically valid sampling method to poll the “industry.”

    Section 771(4)(A) of the Act defines the “industry” as the producers as a whole of a domestic like product. Thus, to determine whether a petition has the requisite industry support, the statute directs the Department to look to producers and workers who produce the domestic like product. The International Trade Commission (ITC), which is responsible for determining whether “the domestic industry” has been injured, must also determine what constitutes a domestic like product in order to define the industry. While both the Department and the ITC must apply the same statutory definition regarding the domestic like product,12 they do so for different purposes and pursuant to a separate and distinct authority. In addition, the Department's determination is subject to limitations of time and information. Although this may result in different definitions of the like product, such differences do not render the decision of either agency contrary to law.13

    12See section 771(10) of the Act.

    13See USEC, Inc. v. United States, 132 F. Supp. 2d 1, 8 (CIT 2001) (citing Algoma Steel Corp., Ltd. v. United States, 688 F. Supp. 639, 644 (CIT 1988), aff'd 865 F.2d 240 (Fed. Cir. 1989)).

    Section 771(10) of the Act defines the domestic like product as “a product which is like, or in the absence of like, most similar in characteristics and uses with, the article subject to an investigation under this title.” Thus, the reference point from which the domestic like product analysis begins is “the article subject to an investigation” (i.e., the class or kind of merchandise to be investigated, which normally will be the scope as defined in the Petitions).

    With regard to the domestic like product, Petitioners do not offer a definition of the domestic like product distinct from the scope of the investigations. Based on our analysis of the information submitted on the record, we have determined that CTL plate constitutes a single domestic like product and we have analyzed industry support in terms of that domestic like product.14

    14 For a discussion of the domestic like product analysis in this case, see Antidumping Duty Investigation Initiation Checklist: Certain Carbon and Alloy Steel Cut-to-Length Plate from Austria (Austria AD Initiation Checklist), at Attachment II, Analysis of Industry Support for the Antidumping and Countervailing Duty Petitions Covering Certain Carbon and Alloy Steel Cut-to-Length Plate from Austria, Belgium, Brazil, the People's Republic of China, France, the Federal Republic of Germany, Italy, Japan, the Republic of Korea, South Africa, Taiwan, and the Republic of Turkey (Attachment II); Antidumping Duty Investigation Initiation Checklist: Certain Carbon and Alloy Steel Cut-to-Length Plate from Belgium (Belgium AD Initiation Checklist), at Attachment II; Antidumping Duty Investigation Initiation Checklist: Certain Carbon and Alloy Steel Cut-to-Length Plate from Brazil (Brazil AD Initiation Checklist), at Attachment II; Antidumping Duty Investigation Initiation Checklist: Certain Carbon and Alloy Steel Cut-to-Length Plate from the People's Republic of China (PRC AD Initiation Checklist), at Attachment II; Antidumping Duty Investigation Initiation Checklist: Certain Carbon and Alloy Steel Cut-to-Length Plate from France (France AD Initiation Checklist), at Attachment II; Antidumping Duty Investigation Initiation Checklist: Certain Carbon and Alloy Steel Cut-to-Length Plate from the Federal Republic of Germany (Germany AD Initiation Checklist), at Attachment II; Antidumping Duty Investigation Initiation Checklist: Certain Carbon and Alloy Steel Cut-to-Length Plate from Italy (Italy AD Initiation Checklist), at Attachment II; Antidumping Duty Investigation Initiation Checklist: Certain Carbon and Alloy Steel Cut-to-Length Plate from Japan (Japan AD Initiation Checklist), at Attachment II; Antidumping Duty Investigation Initiation Checklist: Certain Carbon and Alloy Steel Cut-to-Length Plate from the Republic of Korea (Korea AD Initiation Checklist), at Attachment II; Antidumping Duty Investigation Initiation Checklist: Certain Carbon and Alloy Steel Cut-to-Length Plate from South Africa (South Africa AD Initiation Checklist), at Attachment II; Antidumping Duty Investigation Initiation Checklist: Certain Carbon and Alloy Steel Cut-to-Length Plate from Taiwan (Taiwan AD Initiation Checklist); and Antidumping Duty Investigation Initiation Checklist: Certain Carbon and Alloy Steel Cut-to-Length Plate from the Republic of Turkey (Turkey AD Initiation Checklist). These checklists are dated concurrently with this notice and on file electronically via ACCESS. Access to documents filed via ACCESS is also available in the Central Records Unit, Room B8024 of the main Department of Commerce building.

    In determining whether Petitioners have standing under section 732(c)(4)(A) of the Act, we considered the industry support data contained in the Petitions with reference to the domestic like product as defined in the “Scope of the Investigations,” in Appendix I of this notice. To establish industry support, Petitioners provided their shipments of the domestic like product in 2015, as well as the 2015 shipments of Universal Stainless & Alloy Products, Inc., a supporter of the Petitions, and compared these shipments to the estimated total shipments of the domestic like product for the entire domestic industry.15 Because total industry production data for the domestic like product for 2015 is not reasonably available to Petitioners and Petitioners have established that shipments are a reasonable proxy for production data,16 we have relied upon the shipment data provided by Petitioners for purposes of measuring industry support.17

    15See Volume I of the Petitions, at 2-4 and Exhibits I-3 through I-5; see also General Issues Supplement, at 7-11 and Exhibits I-Supp-2 through I-Supp-4 and I-Supp-11.

    16See Volume I of the Petitions, at 3 and Exhibit I-4; see also General Issues Supplement, at 7.

    17See Volume I of the Petitions, at 2-4 and Exhibits I-4 and I-5; see also General Issues Supplement, at 8-11 and Exhibits I-Supp-2, I-Supp-3, and I-Supp-11. For further discussion, see Austria AD Initiation Checklist, Belgium AD Initiation Checklist, Brazil AD Initiation Checklist, PRC AD Initiation Checklist, France AD Initiation Checklist, Germany AD Initiation Checklist, Italy AD Initiation Checklist, Japan AD Initiation Checklist, Korea AD Initiation Checklist, South Africa AD Initiation Checklist, Taiwan AD Initiation Checklist, and Turkey AD Initiation Checklist, at Attachment II.

    Our review of the data provided in the Petitions, General Issues Supplement, and other information readily available to the Department indicates that Petitioners have established industry support.18 First, the Petitions established support from domestic producers (or workers) accounting for more than 50 percent of the total shipments 19 of the domestic like product and, as such, the Department is not required to take further action in order to evaluate industry support (e.g., polling).20 Second, the domestic producers (or workers) have met the statutory criteria for industry support under section 732(c)(4)(A)(i) of the Act for the Petitions because the domestic producers (or workers) who support the Petitions account for at least 25 percent of the total shipments of the domestic like product.21 Finally, the domestic producers (or workers) have met the statutory criteria for industry support under section 732(c)(4)(A)(ii) of the Act because the domestic producers (or workers) who support the Petitions account for more than 50 percent of the shipments of the domestic like product produced by that portion of the industry expressing support for, or opposition to, the Petitions.22 Accordingly, the Department determines that the Petitions were filed on behalf of the domestic industry within the meaning of section 732(b)(1) of the Act.

    18See Austria AD Initiation Checklist, Belgium AD Initiation Checklist, Brazil AD Initiation Checklist, PRC AD Initiation Checklist, France AD Initiation Checklist, Germany AD Initiation Checklist, Italy AD Initiation Checklist, Japan AD Initiation Checklist, Korea AD Initiation Checklist, South Africa AD Initiation Checklist, Taiwan AD Initiation Checklist, and Turkey AD Initiation Checklist, at Attachment II.

    19 As mentioned above, Petitioners established that shipments are a reasonable proxy for production data. Section 351.203(e)(1) of the Department's regulations states “production levels may be established by reference to alternative data that the Secretary determines to be indicative of production levels.”

    20See section 732(c)(4)(D) of the Act; see also Austria AD Initiation Checklist, Belgium AD Initiation Checklist, Brazil AD Initiation Checklist, PRC AD Initiation Checklist, France AD Initiation Checklist, Germany AD Initiation Checklist, Italy AD Initiation Checklist, Japan AD Initiation Checklist, Korea AD Initiation Checklist, South Africa AD Initiation Checklist, Taiwan AD Initiation Checklist, and Turkey AD Initiation Checklist, at Attachment II.

    21See Austria AD Initiation Checklist, Belgium AD Initiation Checklist, Brazil AD Initiation Checklist, PRC AD Initiation Checklist, France AD Initiation Checklist, Germany AD Initiation Checklist, Italy AD Initiation Checklist, Japan AD Initiation Checklist, Korea AD Initiation Checklist, South Africa AD Initiation Checklist, Taiwan AD Initiation Checklist, and Turkey AD Initiation Checklist, at Attachment II.

    22Id.

    The Department finds that Petitioners filed the Petitions on behalf of the domestic industry because they are interested parties as defined in section 771(9)(C) of the Act and they have demonstrated sufficient industry support with respect to the AD investigations that they are requesting the Department initiate.23

    23Id.

    Allegations and Evidence of Material Injury and Causation

    Petitioners allege that the U.S. industry producing the domestic like product is being materially injured, or is threatened with material injury, by reason of the imports of the subject merchandise sold at less than normal value (NV). In addition, with regard to Brazil, the PRC, France, Germany, Italy, Japan, and Korea, Petitioners allege that subject imports exceed the three percent negligibility threshold provided for under section 771(24)(A) of the Act.24

    24See Volume I of the Petitions, at 25-29 and Exhibits I-13 and I-16; see also General Issues Supplement, at 15 and Exhibit I-Supp-7.

    With regard to Austria, Belgium, South Africa, Taiwan, and Turkey, while the allegedly dumped imports from each of these countries do not individually exceed the statutory requirements for negligibility, Petitioners note that the aggregate import share from these five countries is 7.29 percent, which exceeds the seven percent threshold established by the exception in section 771(24)(A)(ii) of the Act.25 Therefore, none of the subject imports from these countries are negligible for purposes of the material injury analysis in these Petitions.26

    25 Section 771(24)(A)(ii) of the Act states “{i}imports that would otherwise be negligible under clause (i) shall not be negligible if the aggregate volume of imports of the merchandise from all countries described in clause (i) with respect to which investigations were initiated on the same day exceeds 7 percent of the volume of all such merchandise imported in to the United States during the applicable 12-month period.”

    26See Volume I of the Petitions, at 25-26, 29-30, and Exhibit I-13.

    Petitioners contend that the industry's injured condition is illustrated by reduced market share; declines in production, capacity utilization, U.S. shipments, labor hours, and wages; underselling and price suppression or depression; deteriorating financial performance; and lost sales and revenues.27 We have assessed the allegations and supporting evidence regarding material injury, threat of material injury, and causation, and we have determined that these allegations are properly supported by adequate evidence and meet the statutory requirements for initiation.28

    27Id., at 20-22, 34-47 and Exhibits I-4, I-5, I-9, I-10, I-12 through I-14, I-16, and I-17; see also General Issues Supplement, at 11-15 and Exhibits I-Supp-1, I-Supp-6, I-Supp-7, and I-Supp-9.

    28See Austria AD Initiation Checklist, Belgium AD Initiation Checklist, Brazil AD Initiation Checklist, PRC AD Initiation Checklist, France AD Initiation Checklist, Germany AD Initiation Checklist, Italy AD Initiation Checklist, Japan AD Initiation Checklist, Korea AD Initiation Checklist, South Africa AD Initiation Checklist, Taiwan AD Initiation Checklist, and Turkey AD Initiation Checklist, at Attachment III, Analysis of Allegations and Evidence of Material Injury and Causation for the Antidumping and Countervailing Duty Petitions Covering Certain Carbon and Alloy Steel Cut-to-Length Plate from Austria, Belgium, Brazil, the People's Republic of China, France, the Federal Republic of Germany, Italy, Japan, the Republic of Korea, South Africa, Taiwan, and the Republic of Turkey.

    Allegations of Sales at Less Than Fair Value

    The following is a description of the allegations of sales at less than fair value upon which the Department based its decision to initiate AD investigations of imports of CTL plate from Austria, Belgium, Brazil, France, Germany, Italy, Japan, Korea, the PRC, South Africa, Taiwan, and Turkey. The sources of data for the deductions and adjustments relating to U.S. price and NV are discussed in greater detail in the country-specific initiation checklists.

    Export Price

    For Brazil, France, Germany, Italy, Japan, the PRC, Taiwan, and Turkey, Petitioners based export price (EP) U.S. prices on price quotes for sales of CTL plate produced in, and exported from, those countries and offered for sale in the United States.29 For South Africa, Petitioners based EP on the average unit values of publicly available import data.30 Where applicable, Petitioners made deductions from U.S. price for movement expenses and trading company/importer mark-ups, consistent with the terms of sale.31

    29See Brazil AD Initiation Checklist, France AD Initiation Checklist, Germany AD Initiation Checklist, Italy AD Initiation Checklist, Japan AD Initiation Checklist, PRC AD Initiation Checklist, Taiwan AD Initiation Checklist, and Turkey AD Initiation Checklist.

    30See South Africa AD Initiation Checklist.

    31See Austria AD Initiation Checklist, Brazil AD Initiation Checklist, France AD Initiation Checklist, Germany AD Initiation Checklist, Italy AD Initiation Checklist, Korea AD Initiation Checklist, Japan AD Initiation Checklist, PRC AD Initiation Checklist, South Africa AD Initiation Checklist, Taiwan AD Initiation Checklist, and Turkey AD Initiation Checklist.

    Constructed Export Price

    For Austria, Belgium, and Korea, because Petitioners had reason to believe the sale was made through a U.S. affiliate, Petitioners based constructed export price (CEP) on a price quote/offer for sale of CTL plate produced in, and exported from, those countries.32 Petitioners made deductions from U.S. price for movement expenses consistent with the delivery terms.33 Where applicable, Petitioners also deducted from U.S. price imputed credit expenses, trading company/importer mark-ups, and CEP expenses.34

    32See Austria AD Initiation Checklist, Belgium AD Initiation Checklist, and Korea AD Checklist.

    33Id.

    34Id.

    Normal Value

    For Austria, Belgium, Brazil, France, Germany, Korea, Taiwan, and Turkey, Petitioners provided home market price information obtained through market research for CTL plate produced in and offered for sale in each of these countries.35 For all eight of these countries, Petitioners provided a declaration from a market researcher for the price information.36 Where applicable, Petitioners made deductions for movement expenses, taxes, and imputed credit expenses, consistent with the terms of sale.37

    35See Austria AD Initiation Checklist, Belgium AD Initiation Checklist, Brazil AD Initiation Checklist, France AD Initiation Checklist, Germany AD Initiation Checklist, Korea AD Initiation Checklist, Taiwan AD Initiation Checklist, and Turkey AD Initiation Checklist.

    36Id.; see also Memorandum to the File “Telephone Call to Foreign Market Researcher Regarding Antidumping Petition” on each of the country-specific records (April 19 and 22, 2016).

    37See Austria AD Initiation Checklist, Belgium AD Initiation Checklist, Brazil AD Initiation Checklist, France AD Initiation Checklist, Germany AD Initiation Checklist, Korea AD Initiation Checklist, Taiwan AD Initiation Checklist, and Turkey AD Initiation Checklist.

    For Austria, Brazil, France, Germany, Korea, and Taiwan, Petitioners provided information that sales of CTL plate in the respective home markets were made at prices below the cost of production (COP) and also calculated NV based on constructed value (CV).38 For Italy, Japan, and South Africa, Petitioners were unable to obtain home market price quotes for CTL plate and calculated NV based on CV.39 For further discussion of COP and NV based on CV, see below.40

    38See Austria AD Initiation Checklist, Brazil AD Initiation Checklist, France AD Initiation Checklist, Germany AD Initiation Checklist, Korea AD Initiation Checklist, and Taiwan AD Initiation Checklist.

    39See Italy AD Initiation Checklist, Japan AD Initiation Checklist, and South Africa AD Initiation Checklist.

    40 In accordance with section 505(a) of the Trade Preferences Extension Act of 2015, amending section 773(b)(2) of the Act, for all of the investigations, the Department will request information necessary to calculate the CV and COP to determine whether there are reasonable grounds to believe or suspect that sales of the foreign like product have been made at prices that represent less than the COP of the product. The Department will no longer require a COP allegation to conduct this analysis.

    With respect to the PRC, Petitioners stated that the Department has found the PRC to be a non-market economy (NME) country in every administrative proceeding in which the PRC has been involved.41 In accordance with section 771(18)(C)(i) of the Act, the presumption of NME status remains in effect until revoked by the Department. The presumption of NME status for the PRC has not been revoked by the Department and, therefore, remains in effect for purposes of the initiation of this investigation. Accordingly, the NV of the product is appropriately based on factors of production (FOPs) valued in a surrogate market economy country, in accordance with section 773(c) of the Act. In the course of this investigation, all parties, and the public, will have the opportunity to provide relevant information related to the issues of the PRC's NME status and the granting of separate rates to individual exporters.

    41See Volume IV of the Petition at 10.

    Petitioners claim that South Africa is an appropriate surrogate country because it is a market economy that is at a level of economic development comparable to that of the PRC, it is a significant producer of the merchandise under consideration, and the data for valuing FOPs, factory overhead, selling, general and administrative (SG&A) expenses and profit are both available and reliable.42

    42Id. at 11-23; see also section 773(c) of the Act.

    Based on the information provided by Petitioners, we believe it is appropriate to use South Africa as a surrogate country for initiation purposes. Interested parties will have the opportunity to submit comments regarding surrogate country selection and, pursuant to 19 CFR 351.301(c)(3)(i), will be provided an opportunity to submit publicly available information to value FOPs no later than 30 days before the scheduled date of the preliminary determination.

    Factors of Production

    Because information regarding the volume of inputs consumed by Chinese producers/exporters is not reasonably available, Petitioners relied on a surrogate company's actual consumption of direct materials, labor, and energy as an estimate of the PRC manufacturers' FOPs.43 Petitioners valued the estimated FOPs using surrogate values from South Africa,44 and used the average POI exchange rate to convert the data to U.S. dollars.45

    43See Volume IV of the Petition at 13-17.

    44Id. at 16-17.

    45Id. at 17 and Exhibit AD-CN-9.

    Valuation of Raw Materials

    Petitioners valued direct materials based on publicly-available data for imports into South Africa obtained from the Global Trade Atlas for the period September 2015 through February 2016 (i.e., the latest six months available).46 For three items (beach iron scrap, ferromanganese, and slag iron offsets), there was insufficient import volume to calculate a surrogate value, and so Petitioners relied on South African export statistics.47 Petitioners excluded all import data from countries previously determined by the Department to maintain broadly available, non-industry-specific export subsidies, from countries previously determined by the Department to be NME countries. In addition, in accordance with the Department's practice, Petitioners excluded imports that were labeled as originating from an unidentified country.48 Petitioners added to these import values an inland freight rate derived from a report issued by the Human Sciences Research Council, based on the distance from the nearest port to the PRC producing mill.49

    46Id. at 18-19 and Exhibits AD-CN-22 and AD-CN-23; see also Letter to the Secretary of Commerce from Petitioners regarding amendment to the PRC Petition (April 18, 2016) (PRC AD Petition Supplement) at 7 and Exhibits AD-CN-Supp-10 and AD-CN-Supp-11.

    47See Volume IV of Petition at 19.

    48Id.

    49Id. at 17-18 and Exhibit AD-CN-7.

    Valuation of Labor

    Petitioners relied on 2013 data from the International Labor Organization's ILOSTAT data service to derive an hourly labor rate, and then inflated it using the Consumer Price Index.50

    50Id. at 20-21 and Exhibits AD-CN-10, AD-CN-25, and AD-CN-29.

    Valuation of Energy

    Petitioners valued electricity using electricity rates in effect during the POI as collected and disseminated by the South African electricity producer Eskom,51 water and natural gas by obtaining the surrogate values used by a recent Department case using South Africa as surrogate country,52 coke oven gas (which is neither imported nor sold on the commercial market) by taking South African pricing for natural gas as a substitute and making a downward revision to the value of natural gas to reflect the lower heat value of coke oven gas,53 and oxygen using the average unit pricing for oxygen imported into South Africa.54

    51Id. at 19 and Exhibit AD-CN-24.

    52Id. at 19-20 and Exhibits AD-CN-26 and AD-CN-27.

    53Id. at 20; see also PRC AD Petition Supplement at 7-8 and Exhibits AD-CN-Supp-12, AD-CN-Supp-13, and AD-CN-Supp-14.

    54See PRC AD Petition Supplement at 8-9 and Exhibits AD-CN-Supp-10 and AD-CN-Supp-14.

    Valuation of Packing Materials

    Petitioners valued the packing expenses used by the PRC producers based on actual production experience of a U.S. producer of CTL plate.55

    55See Volume IV of Petition at 1 and 23 and Exhibits AD-CN-18 and AD-CN-21.

    Valuation of Factory Overhead, Selling, General and Administrative Expenses, and Profit

    Petitioners valued factory overhead, SG&A, and profit using publicly available financial statements from Evraz Highveld, a South African company that produces the merchandise under consideration.56

    56See Volume IV of Petition at 21-23 and Exhibits AD-CN-21 and AD-CN-30; see also PRC AD Petition Supplement at 9-10 and Exhibits AD-CN-Supp-16.

    Normal Value Based on Constructed Value

    Pursuant to section 773(b)(3) of the Act, COP consists of the cost of manufacturing (COM), SG&A expenses, financial expenses, and packing expenses. Petitioners calculated COM based on the experience of a surrogate producer, adjusted for known differences between the surrogate producer and the producer(s) of the respective country (i.e., Austria, Brazil, France, Germany, Italy, Japan, Korea, South Africa, and Taiwan), during the proposed POI.57 Using publicly-available data to account for price differences, Petitioners multiplied the surrogate usage quantities by the submitted value of the inputs used to manufacture CTL plate in each country.58 For Austria, Brazil, France, Germany, Italy, Japan, Korea, South Africa, and Taiwan, labor rates were derived from publicly available sources multiplied by the product-specific usage rates.59 For Austria, Brazil, France, Germany, Italy, Japan, Korea, South Africa, and Taiwan, to determine factory overhead, SG&A, and financial expense rates, Petitioners relied on financial statements of companies they asserted were producers of identical or comparable merchandise operating in the respective foreign country.60 For Brazil, we adjusted the financial expense rate to reflect the results from the consolidated rather than non-consolidated financial statements.61

    57See Austria AD Initiation Checklist, Brazil AD Initiation Checklist, France AD Initiation Checklist, Germany AD Initiation Checklist, Italy AD Initiation Checklist, Japan AD Initiation Checklist, Korea AD Initiation Checklist, South Africa AD Initiation Checklist, and Taiwan AD Initiation Checklist.

    58Id.

    59Id.

    60Id.

    61See Brazil AD Initiation Checklist.

    For Austria, Brazil, France, Germany, Korea, and Taiwan, because certain home market prices fell below COP, pursuant to sections 773(a)(4), 773(b), and 773(e) of the Act, as noted above, Petitioners calculated NVs based on CV for those countries.62 For Italy, Japan, and South Africa, Petitioners indicated they were unable to obtain home market or third country prices; accordingly, Petitioners based NV only on CV for those countries.63 Pursuant to section 773(e) of the Act, CV consists of the COM, SG&A, financial expenses, packing expenses, and profit. Petitioners calculated CV using the same average COM, SG&A, and financial expenses, to calculate COP.64 With the exception of Brazil and Italy, Petitioners relied on the financial statements of the same producers that they used for calculating manufacturing overhead, SG&A, and financial expenses to calculate the profit rate.65 For Brazil and Italy, because the relevant financial statements indicated that the companies were operating at a loss, Petitioners did not include profit in CV.66

    62See Austria AD Initiation Checklist, Brazil AD Initiation Checklist, France AD Initiation Checklist, Germany AD Initiation Checklist, Korea AD Initiation Checklist, and Taiwan AD Initiation Checklist.

    63See Italy AD Initiation Checklist, Japan AD Initiation Checklist, and South Africa AD Initiation Checklist.

    64See Austria AD Initiation Checklist, Brazil AD Initiation Checklist, France AD Initiation Checklist, Germany AD Initiation Checklist, Italy AD Initiation Checklist, Japan AD Initiation Checklist, Korea AD Initiation Checklist, South Africa AD Initiation Checklist, and Taiwan AD Initiation Checklist.

    65See Austria AD Initiation Checklist, France AD Initiation Checklist, Germany AD Initiation Checklist, Japan AD Initiation Checklist, Korea AD Initiation Checklist, South Africa AD Initiation Checklist, and Taiwan AD Initiation Checklist.

    66See Brazil AD Initiation Checklist and Italy AD Initiation Checklist.

    Fair Value Comparisons

    Based on the data provided by Petitioners, there is reason to believe that imports of CTL plate from Austria, Belgium, Brazil, France, Germany, Italy, Japan, Korea, the PRC, South Africa, Taiwan, and Turkey are being, or are likely to be, sold in the United States at less than fair value. Based on comparisons of EP, or CEP, to NV in accordance with sections 772 and 773 of the Act, the estimated dumping margins for CTL plate are as follows: (1) Austria ranges from 35.50 to 121.90 percent; 67 (2) Belgium is 51.78 percent; 68 (3) Brazil is 74.52 percent; 69 (4) France ranges from 28.43 to 148.02 percent; 70 (5) Germany ranges from 42.59 to 174.03 percent; 71 (6) Italy is 130.63 percent; 72 (7) Japan is 179.2 percent; 73 (8) Korea ranges from 44.70 to 248.64; 74 (9) South Africa ranges from 81.29 to 94.14 percent; 75 (10) Taiwan ranges from 8.30 to 77.13 percent; 76 and (11) Turkey ranges from 34.03 to 50.00 percent.77

    67See Austria AD Initiation Checklist.

    68See Belgium AD Initiation Checklist.

    69See Brazil AD Initiation Checklist.

    70See France AD Initiation Checklist.

    71See Germany AD Initiation Checklist.

    72See Italy AD Initiation Checklist.

    73See Japan AD Initiation Checklist.

    74See Korea AD Initiation Checklist.

    75See South Africa AD Initiation Checklist.

    76See Taiwan AD Initiation Checklist.

    77See Turkey AD Initiation Checklist.

    Based on comparisons of EP to NV, in accordance with section 773(c) of the Act, the estimated dumping margin for CTL plate from the PRC ranges from 67.93 to 68.27 percent.78

    78See PRC AD Initiation Checklist.

    Initiation of Less-Than-Fair-Value Investigations

    Based upon the examination of the AD Petitions on CTL plate from Austria, Belgium, Brazil, France, Germany, Italy, Japan, Korea, the PRC, South Africa, Taiwan, and Turkey, we find that the Petitions meet the requirements of section 732 of the Act. Therefore, we are initiating AD investigations to determine whether imports of CTL plate from Austria, Belgium, Brazil, France, Germany, Italy, Japan, Korea, the PRC, South Africa, Taiwan, and Turkey are being, or are likely to be, sold in the United States at less than fair value. In accordance with section 733(b)(1)(A) of the Act and 19 CFR 351.205(b)(1), unless postponed, we will make our preliminary determinations no later than 140 days after the date of this initiation.

    On June 29, 2015, the President of the United States signed into law the Trade Preferences Extension Act of 2015, which made numerous amendments to the AD and CVD law.79 The 2015 law does not specify dates of application for those amendments. On August 6, 2015, the Department published an interpretative rule, in which it announced the applicability dates for each amendment to the Act, except for amendments contained in section 771(7) of the Act, which relate to determinations of material injury by the ITC.80 The amendments to sections 771(15), 773, 776, and 782 of the Act are applicable to all determinations made on or after August 6, 2015, and, therefore, apply to these investigations.81

    79See Trade Preferences Extension Act of 2015, Public Law 114-27, 129 Stat. 362 (2015).

    80See Dates of Application of Amendments to the Antidumping and Countervailing Duty Laws Made by the Trade Preferences Extension Act of 2015, 80 FR 46793 (August 6, 2015).

    81Id. at 46794-95. The 2015 amendments may be found at https://www.congress.gov/bill/114th-congress/house-bill/1295/text/pl.

    Respondent Selection

    Petitioners named three companies in Brazil,82 three companies in Turkey,83 11 companies in Germany,84 nine companies in Italy,85 five companies in Japan,86 21 companies in Korea,87 four companies in South Africa,88 and 10 companies in Taiwan,89 as producers/exporters of CTL plate. Following standard practice in AD investigations involving market economy countries, in the event the Department determines that the number of companies is large and it cannot individually examine each company based upon the Department's resources, where appropriate, the Department intends to select respondents based on U.S. Customs and Border Protection (CBP) data for U.S. imports under the appropriate Harmonized Tariff Schedule of the United States numbers listed with the scope in Appendix I, below. We also intend to release the CBP data under Administrative Protective Order (APO) to all parties with access to information protected by APO on the record within five business days of publication of this Federal Register notice. Comments regarding the CBP data and respondent selection should be submitted seven calendar days after the placement of the CBP data on the record of these investigations. Parties wishing to submit rebuttal comments should submit those comments five calendar days after the deadline for the initial comments.

    82See Volume I of the Petition at 18-19 and Exhibit I-8.

    83 Petitioners initially named only one company in Turkey, but later indicated that there are two additional producers in Turkey, ММK Metalurji and Tosçelik Profile & Sheet, that are theoretically capable of producing a product that would fall within the scope of this investigation. See Letter to the Secretary of Commerce from Petitioners “Certain Carbon and Alloy Steel Cut-to-Length Plate from Austria, Belgium, Brazil, the People's Republic of China, France, the Federal Republic of Germany, Italy, Japan, the Republic of Korea, South Africa, Taiwan, and Turkey—Petitioners Amendment to the Petition” (April 18, 2016).

    84See Volume I of the Petition at 18-19 and Exhibit I-8.

    85Id.

    86Id.

    87Id.

    88Id.

    89Id.

    Although the Department normally relies on the number of producers/exporters identified in the petition and/or import data from CBP to determine whether to select a limited number of producers/exporters for individual examination in AD investigations, Petitioners identified only one company as a producer/exporter of CTL plate in Austria: Voelstalpine Grobblech GmbH; two companies in Belgium: Industeel and NLMK Clabecq; and two companies in France: Dillinger France and Industeel France.90 We currently know of no additional producers/exporters of merchandise under consideration from these countries and Petitioners provided information from an independent third-party source as support.91 Accordingly, the Department intends to examine all known producers/exporters in the investigations for Austria, Belgium, and France (i.e., the companies cited above for each respective investigation).

    90Id.

    91See Volume I of the Petition at Exhibit I-9.

    Comments for the above-referenced investigations must be filed electronically using ACCESS. An electronically-filed document must be received successfully in its entirety by the Department's electronic records system, ACCESS, by 5:00 p.m. ET by the dates noted above. We intend to make our decision regarding respondent selection within 20 days of publication of this notice.

    With respect to the PRC, Petitioners named 56 companies as producers/exporters of CTL plate.92 In accordance with our standard practice for respondent selection in cases involving NME countries, we intend to issue quantity and value (Q&V) questionnaires to each potential respondent and base respondent selection on the responses received. In addition, the Department will post the Q&V questionnaire along with filing instructions on the Enforcement and Compliance Web site at http://www.trade.gov/enforcement/news.asp.

    92See Volume I of the Petition, at Exhibit I-8.

    Exporters/producers of CTL plate from the PRC that do not receive Q&V questionnaires by mail may still submit a response to the Q&V questionnaire and can obtain a copy from the Enforcement and Compliance Web site. The Q&V response must be submitted by all PRC exporters/producers no later than May 12, 2016, which is two weeks from the signature date of this notice. All Q&V responses must be filed electronically via ACCESS.

    Separate Rates

    In order to obtain separate-rate status in an NME investigation, exporters and producers must submit a separate-rate application.93 The specific requirements for submitting a separate-rate application in the PRC investigation are outlined in detail in the application itself, which is available on the Department's Web site at http://enforcement.trade.gov/nme/nme-sep-rate.html. The separate-rate application will be due 30 days after publication of this initiation notice.94 Exporters and producers who submit a separate-rate application and are selected as mandatory respondents will be eligible for consideration for separate-rate status only if they respond to all parts of the Department's AD questionnaire as mandatory respondents. The Department requires that respondents from the PRC submit a response to both the Q&V questionnaire and the separate-rate application by their respective deadlines in order to receive consideration for separate-rate status.

    93See Policy Bulletin 05.1: Separate-Rates Practice and Application of Combination Rates in Antidumping Investigation involving Non-Market Economy Countries (April 5, 2005), available at http://enforcement.trade.gov/policy/bull05-1.pdf (Policy Bulletin 05.1).

    94 Although in past investigations this deadline was 60 days, consistent with 19 CFR 351.301(a), which states that “the Secretary may request any person to submit factual information at any time during a proceeding,” this deadline is now 30 days.

    Use of Combination Rates

    The Department will calculate combination rates for certain respondents that are eligible for a separate rate in an NME investigation. The Separate Rates and Combination Rates Bulletin states:

    {w}hile continuing the practice of assigning separate rates only to exporters, all separate rates that the Department will now assign in its NME Investigation will be specific to those producers that supplied the exporter during the period of investigation. Note, however, that one rate is calculated for the exporter and all of the producers which supplied subject merchandise to it during the period of investigation. This practice applies both to mandatory respondents receiving an individually calculated separate rate as well as the pool of non-investigated firms receiving the weighted-average of the individually calculated rates. This practice is referred to as the application of “combination rates” because such rates apply to specific combinations of exporters and one or more producers. The cash-deposit rate assigned to an exporter will apply only to merchandise both exported by the firm in question and produced by a firm that supplied the exporter during the period of investigation.95

    95See Policy Bulletin 05.1 at 6 (emphasis added).

    Distribution of Copies of the Petitions

    In accordance with section 732(b)(3)(A) of the Act and 19 CFR 351.202(f), copies of the public version of the Petitions have been provided to the governments of Austria, Belgium, Brazil, France, Germany, Italy, Japan, Korea, the PRC, South Africa, Taiwan, and Turkey via ACCESS. To the extent practicable, we will attempt to provide a copy of the public version of the Petitions to each exporter named in the Petitions, as provided under 19 CFR 351.203(c)(2).

    ITC Notification

    We will notify the ITC of our initiation, as required by section 732(d) of the Act.

    Preliminary Determinations by the ITC

    The ITC will preliminarily determine, within 45 days after the date on which the Petitions were filed, whether there is a reasonable indication that imports of CTL plate from Austria, Belgium, Brazil, France, Germany, Italy, Japan, Korea, the PRC, South Africa, Taiwan, and/or Turkey are materially injuring or threatening material injury to a U.S. industry.96 A negative ITC determination for any country will result in the investigation being terminated with respect to that country; 97 otherwise, these investigations will proceed according to statutory and regulatory time limits.

    96See section 733(a) of the Act.

    97Id.

    Submission of Factual Information

    Factual information is defined in 19 CFR 351.102(b)(21) as: (i) Evidence submitted in response to questionnaires; (ii) evidence submitted in support of allegations; (iii) publicly available information to value factors under 19 CFR 351.408(c) or to measure the adequacy of remuneration under 19 CFR 351.511(a)(2); (iv) evidence placed on the record by the Department; and (v) evidence other than factual information described in (i)-(iv). Any party, when submitting factual information, must specify under which subsection of 19 CFR 351.102(b)(21) the information is being submitted 98 and, if the information is submitted to rebut, clarify, or correct factual information already on the record, to provide an explanation identifying the information already on the record that the factual information seeks to rebut, clarify, or correct.99 Time limits for the submission of factual information are addressed in 19 CFR 351.301, which provides specific time limits based on the type of factual information being submitted. Please review the regulations prior to submitting factual information in these investigations.

    98See 19 CFR 351.301(b).

    99See 19 CFR 351.301(b)(2).

    Extensions of Time Limits

    Parties may request an extension of time limits before the expiration of a time limit established under 19 CFR 351, or as otherwise specified by the Secretary. In general, an extension request will be considered untimely if it is filed after the expiration of the time limit established under 19 CFR 351. For submissions that are due from multiple parties simultaneously, an extension request will be considered untimely if it is filed after 10:00 a.m. ET on the due date. Under certain circumstances, we may elect to specify a different time limit by which extension requests will be considered untimely for submissions which are due from multiple parties simultaneously. In such a case, we will inform parties in the letter or memorandum setting forth the deadline (including a specified time) by which extension requests must be filed to be considered timely. An extension request must be made in a separate, stand-alone submission; under limited circumstances we will grant untimely-filed requests for the extension of time limits. Review Extension of Time Limits; Final Rule, 78 FR 57790 (September 20, 2013), available at http://www.thefederalregister.org/fdsys/pkg/FR-2013-09-20/html/2013-22853.htm, prior to submitting factual information in these investigations.

    Certification Requirements

    Any party submitting factual information in an AD or CVD proceeding must certify to the accuracy and completeness of that information.100 Parties are hereby reminded that revised certification requirements are in effect for company/government officials, as well as their representatives. Investigations initiated on the basis of petitions filed on or after August 16, 2013, and other segments of any AD or CVD proceedings initiated on or after August 16, 2013, should use the formats for the revised certifications provided at the end of the Final Rule. 101 The Department intends to reject factual submissions if the submitting party does not comply with applicable revised certification requirements.

    100See section 782(b) of the Act.

    101See Certification of Factual Information to Import Administration during Antidumping and Countervailing Duty Proceedings, 78 FR 42678 (July 17, 2013) (Final Rule); see also frequently asked questions regarding the Final Rule, available at http://enforcement.trade.gov/tlei/notices/factual_info_final_rule_FAQ_07172013.pdf.

    Notification to Interested Parties

    Interested parties must submit applications for disclosure under APO in accordance with 19 CFR 351.305. On January 22, 2008, the Department published Antidumping and Countervailing Duty Proceedings: Documents Submission Procedures; APO Procedures, 73 FR 3634 (January 22, 2008). Parties wishing to participate in these investigations should ensure that they meet the requirements of these procedures (e.g., the filing of letters of appearance as discussed in 19 CFR 351.103(d)).

    This notice is issued and published pursuant to section 777(i) of the Act.

    Dated: April 28, 2016. Paul Piquado, Assistant Secretary for Enforcement and Compliance. Appendix I Scope of the Investigations

    The products covered by these investigations are certain carbon and alloy steel hot-rolled or forged flat plate products not in coils, whether or not painted, varnished, or coated with plastics or other non-metallic substances (cut-to-length plate). Subject merchandise includes plate that is produced by being cut-to-length from coils or from other discrete length plate and plate that is rolled or forged into a discrete length. The products covered include (1) Universal mill plates (i.e., flat-rolled products rolled on four faces or in a closed box pass, of a width exceeding 150 mm but not exceeding 1250 mm, and of a thickness of not less than 4 mm, which are not in coils and without patterns in relief), and (2) hot-rolled or forged flat steel products of a thickness of 4.75 mm or more and of a width which exceeds 150 mm and measures at least twice the thickness, and which are not in coils, whether or not with patterns in relief. The covered products described above may be rectangular, square, circular or other shapes and include products of either rectangular or non-rectangular cross-section where such non-rectangular cross-section is achieved subsequent to the rolling process, i.e., products which have been “worked after rolling” (e.g., products which have been beveled or rounded at the edges).

    For purposes of the width and thickness requirements referenced above, the following rules apply:

    (1) Except where otherwise stated where the nominal and actual thickness or width measurements vary, a product from a given subject country is within the scope if application of either the nominal or actual measurement would place it within the scope based on the definitions set forth above unless the product is already covered by an order existing on that specific country (e.g., orders on hot-rolled flat-rolled steel); and

    (2) where the width and thickness vary for a specific product (e.g., the thickness of certain products with non-rectangular cross-section, the width of certain products with non-rectangular shape, etc.), the measurement at its greatest width or thickness applies.

    Steel products included in the scope of these investigations are products in which: (1) Iron predominates, by weight, over each of the other contained elements; and (2) the carbon content is 2 percent or less by weight.

    Subject merchandise includes cut-to-length plate that has been further processed in the subject country or a third country, including but not limited to pickling, oiling, levelling, annealing, tempering, temper rolling, skin passing, painting, varnishing, trimming, cutting, punching, beveling, and/or slitting, or any other processing that would not otherwise remove the merchandise from the scope of the investigations if performed in the country of manufacture of the cut-to-length plate.

    All products that meet the written physical description, are within the scope of these investigations unless specifically excluded or covered by the scope of an existing order. The following products are outside of, and/or specifically excluded from, the scope of these investigations:

    (1) Products clad, plated, or coated with metal, whether or not painted, varnished or coated with plastic or other non-metallic substances;

    (2) military grade armor plate certified to one of the following specifications or to a specification that references and incorporates one of the following specifications:

    • MIL-A-12560,

    • MIL-DTL-12560H,

    • MIL-DTL-12560J,

    • MIL-DTL-12560K,

    • MIL-DTL-32332,

    • MIL-A-46100D,

    • MIL-DTL-46100-E,

    • MIL-46177C,

    • MIL-S-16216K Grade HY80,

    • MIL-S-16216K Grade HY100,

    • MIL-S-24645A HSLA-80;

    • MIL-S-24645A HSLA-100,

    • T9074-BD-GIB-010/0300 Grade HY80,

    • T9074-BD-GIB-010/0300 Grade HY100,

    • T9074-BD-GIB-010/0300 Grade HSLA80,

    • T9074-BD-GIB-010/0300 Grade HSLA100, and

    • T9074-BD-GIB-010/0300 Mod. Grade HSLA115,

    except that any cut-to-length plate certified to one of the above specifications, or to a military grade armor specification that references and incorporates one of the above specifications, will not be excluded from the scope if it is also dual- or multiple-certified to any other non-armor specification that otherwise would fall within the scope of this order;

    (3) stainless steel plate, containing 10.5 percent or more of chromium by weight;

    (4) CTL plate meeting the requirements of ASTM A-829, Grade E 4340 that are over 305 mm in actual thickness;

    (5) Alloy forged and rolled CTL plate greater than or equal to 152.4 mm in actual thickness meeting each of the following requirements:

    (a) Electric furnace melted, ladle refined & vacuum degassed and having a chemical composition (expressed in weight percentages):

    • Carbon 0.23-0.28,

    • Silicon 0.05-0.20,

    • Manganese 1.20-1.60,

    • Nickel not greater than 1.0,

    • Sulfur not greater than 0.007,

    • Phosphorus not greater than 0.020,

    • Chromium 1.0-2.5,

    • Molybdenum 0.35-0.80,

    • Boron 0.002-0.004,

    • Oxygen not greater than 20 ppm,

    • Hydrogen not greater than 2 ppm, and

    • Nitrogen not greater than 60 ppm;

    (b) With a Brinell hardness measured in all parts of the product including mid thickness falling within one of the following ranges:

    (i) 270-300 HBW,

    (ii) 290-320 HBW, or

    (iii) 320-350 HBW;

    (c) Having cleanliness in accordance with ASTM E45 method A (Thin and Heavy): A not exceeding 1.5, B not exceeding 1.0, C not exceeding 0.5, D not exceeding 1.5; and

    (d) Conforming to ASTM A578-S9 ultrasonic testing requirements with acceptance criteria 2 mm flat bottom hole;

    (6) Alloy forged and rolled steel CTL plate over 407 mm in actual thickness and meeting the following requirements:

    (a) Made from Electric Arc Furnace melted, Ladle refined & vacuum degassed, alloy steel with the following chemical composition (expressed in weight percentages):

    • Carbon 0.23-0.28,

    • Silicon 0.05-0.15,

    • Manganese 1.20-1.50,

    • Nickel not greater than 0.4,

    • Sulfur not greater than 0.010,

    • Phosphorus not greater than 0.020,

    • Chromium 1.20-1.50,

    • Molybdenum 0.35-0.55,

    • Boron 0.002-0.004,

    • Oxygen not greater than 20 ppm,

    • Hydrogen not greater than 2 ppm, and

    • Nitrogen not greater than 60 ppm;

    (b) Having cleanliness in accordance with ASTM E45 method A (Thin and Heavy): A not exceeding 1.5, B not exceeding 1.5, C not exceeding 1.0, D not exceeding 1.5;

    (c) Having the following mechanical properties:

    (i) With a Brinell hardness not more than 237 HBW measured in all parts of the product including mid thickness; and having a Yield Strength of 75ksi min and UTS 95ksi or more, Elongation of 18% or more and Reduction of area 35% or more; having charpy V at −75 degrees F in the longitudinal direction equal or greater than 15 ft. lbs (single value) and equal or greater than 20 ft. lbs (average of 3 specimens) and conforming to the requirements of NACE MR01-75; or

    (ii) With a Brinell hardness not less than 240 HBW measured in all parts of the product including mid thickness; and having a Yield Strength of 90 ksi min and UTS 110 ksi or more, Elongation of 15% or more and Reduction of area 30% or more; having charpy V at −40 degrees F in the longitudinal direction equal or greater than 21 ft. lbs (single value) and equal or greater than 31 ft. lbs (average of 3 specimens);

    (d) Conforming to ASTM A578-S9 ultrasonic testing requirements with acceptance criteria 3.2 mm flat bottom hole; and

    (e) Conforming to magnetic particle inspection in accordance with AMS 2301;

    (7) Alloy forged and rolled steel CTL plate over 407 mm in actual thickness and meeting the following requirements:

    (a) Made from Electric Arc Furnace melted, ladle refined & vacuum degassed, alloy steel with the following chemical composition (expressed in weight percentages):

    • Carbon 0.25-0.30,

    • Silicon not greater than 0.25,

    • Manganese not greater than 0.50,

    • Nickel 3.0-3.5,

    • Sulfur not greater than 0.010,

    • Phosphorus not greater than 0.020,

    • Chromium 1.0-1.5,

    • Molybdenum 0.6-0.9,

    • Vanadium 0.08 to 0.12

    • Boron 0.002-0.004,

    • Oxygen not greater than 20 ppm,

    • Hydrogen not greater than 2 ppm, and

    • Nitrogen not greater than 60 ppm.

    (b) Having cleanliness in accordance with ASTM E45 method A (Thin and Heavy): A not exceeding 1.0(t) and 0.5(h), B not exceeding 1.5(t) and 1.0(h), C not exceeding 1.0(t) and 0.5(h), and D not exceeding 1.5(t) and 1.0(h);

    (c) Having the following mechanical properties: A Brinell hardness not less than 350 HBW measured in all parts of the product including mid thickness; and having a Yield Strength of 145ksi or more and UTS 160ksi or more, Elongation of 15% or more and Reduction of area 35% or more; having charpy V at −40 degrees F in the transverse direction equal or greater than 20 ft. lbs (single value) and equal or greater than 25 ft. lbs (average of 3 specimens);

    (d) Conforming to ASTM A578-S9 ultrasonic testing requirements with acceptance criteria 3.2 mm flat bottom hole; and

    (e) Conforming to magnetic particle inspection in accordance with AMS 2301.

    At the time of the filing of the petition, there was an existing antidumping duty order on certain cut-to-length carbon-quality steel plate products from Korea. See Notice of Final Determination of Sales at Less Than Fair Value: Certain Cut-To-Length Carbon-Quality Steel Plate Products from Korea, 64 FR 73196 (Dep't Commerce Dec. 29, 1999), as amended, 65 FR 6585 (Dep't Commerce Feb 10, 2000) (1999 Korea AD Order). The scope of the antidumping duty investigation with regard to cut-to-length plate from Korea covers only (1) subject cut-to-length plate not within the physical description of cut-to-length carbon quality steel plate in the 1999 Korea AD Order, regardless of producer or exporter; and (2) cut-to-length plate produced and/or exported by those companies that were excluded or revoked from the 1999 Korea AD Order as of April 8, 2016. The only revoked or excluded company is Pohang Iron and Steel Company, also known as POSCO.

    At the time of the filing of the petition, there was an existing countervailing duty order on certain cut-to-length carbon-quality steel plate from Korea. See Final Affirmative Countervailing Duty Determination: Certain Cut-to-Length Carbon-Quality Steel Plate From the Republic of Korea, 64 FR 73176 (Dep't Commerce Dec. 29, 1999), as amended, 65 FR 6587 (Dep't Commerce Feb. 10, 2000) (1999 Korea CVD Order). The scope of the countervailing duty investigation with regard to cut-to-length plate from Korea covers only (1) subject cut-to-length plate not within the physical description of cut-to-length carbon quality steel plate in the 1999 Korea CVD Order regardless of producer or exporter, and (2) cut-to-length plate produced and/or exported by those companies that were excluded or revoked from the 1999 Korea CVD Order as of April 8, 2016. The only revoked or excluded company is Pohang Iron and Steel Company, also known as POSCO.

    Excluded from the scope of the antidumping duty investigation on cut-to-length plate from China are any products covered by the existing antidumping duty order on certain cut-to-length carbon steel plate from the People's Republic of China. See Suspension Agreement on Certain Cut-to-Length Carbon Steel Plate From the People's Republic of China; Termination of Suspension Agreement and Notice of Antidumping Duty Order, 68 FR 60081 (Dep't Commerce Oct. 21, 2003), as amended, Affirmative Final Determination of Circumvention of the Antidumping Duty Order on Certain Cut-to-Length Carbon Steel Plate From the People's Republic of China, 76 FR 50996, 50996-97 (Dep't of Commerce Aug. 17, 2011). On August 17, 2011, the U.S. Department of Commerce found that the order covered all imports of certain cut-to-length carbon steel plate products with 0.0008 percent or more boron, by weight, from China not meeting all of the following requirements: aluminum level of 0.02 percent or greater, by weight; a ratio of 3.4 to 1 or greater, by weight, of titanium to nitrogen; and a hardenability test (i.e., Jominy test) result indicating a boron factor of 1.8 or greater.

    The products subject to the investigations are currently classified in the Harmonized Tariff Schedule of the United States (HTSUS) under item numbers: 7208.40.3030, 7208.40.3060, 7208.51.0030, 7208.51.0045, 7208.51.0060, 7208.52.0000, 7211.13.0000, 7211.14.0030, 7211.14.0045, 7225.40.1110, 7225.40.1180, 7225.40.3005, 7225.40.3050, 7226.20.0000, and 7226.91.5000.

    The products subject to the investigations may also enter under the following HTSUS item numbers: 7208.40.6060, 7208.53.0000, 7208.90.0000, 7210.70.3000, 7210.90.9000, 7211.19.1500, 7211.19.2000, 7211.19.4500, 7211.19.6000, 7211.19.7590, 7211.90.0000, 7212.40.1000, 7212.40.5000, 7212.50.0000, 7214.10.000, 7214.30.0010, 7214.30.0080, 7214.91.0015, 7214.91.0060, 7214.91.0090, 7225.11.0000, 7225.19.0000, 7225.40.5110, 7225.40.5130, 7225.40.5160, 7225.40.7000, 7225.99.0010, 7225.99.0090, 7206.11.1000, 7226.11.9060, 7229.19.1000, 7226.19.9000, 7226.91.0500, 7226.91.1530, 7226.91.1560, 7226.91.2530, 7226.91.2560, 7226.91.7000, 7226.91.8000, and 7226.99.0180.

    The HTSUS subheadings above are provided for convenience and customs purposes only. The written description of the scope of the investigations is dispositive.

    [FR Doc. 2016-10627 Filed 5-4-16; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration [C-351-848; C-570-048; C-580-888] Certain Carbon and Alloy Steel Cut-to-Length Plate From Brazil, the People's Republic of China, and the Republic of Korea: Initiation of Countervailing Duty Investigations AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    DATES:

    Effective Date: April 28, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Nicholas Czajkowski at (202) 482-1395 (Brazil); Katie Marksberry at (202) 482-7906 (the People's Republic of China); and John Drury at (202) 482-0195 (Republic of Korea), AD/CVD Operations, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230.

    SUPPLEMENTARY INFORMATION: The Petitions

    On April 8, 2016, the Department of Commerce (the Department) received countervailing duty (CVD) petitions concerning imports of certain carbon and alloy cut-to-length plate (CTL plate) from Brazil, the People's Republic of China (PRC), and the Republic of Korea (Korea), filed in proper form on behalf of ArcelorMittal USA LLC, Nucor Corporation, and SSAB Enterprises, LLC (collectively, Petitioners). The CVD petitions were accompanied by antidumping duty (AD) petitions concerning imports of CTL plate from all of the above countries, in addition to Austria, Belgium, France, the Federal Republic of Germany, Italy, Japan, South Africa, Taiwan, and Turkey.1 Petitioners are domestic producers of CTL plate.2

    1See “Certain Carbon and Alloy Steel Cut-to-Length Plate from Austria, Belgium, Brazil, the People's Republic of China, France, the Federal Republic of Germany, Italy, Japan, the Republic of Korea, South Africa, Taiwan, and Turkey—Petitions for the Imposition of Antidumping and Countervailing Duties,” dated April 8, 2016 (Petitions).

    2Id., Volume I at 2.

    On April 13, 2016, and April 21, 2016, the Department requested supplemental information pertaining to certain areas of the Petition.3 Petitioners filed responses to these requests on April 18, 2016, and April 25, 2016, respectively.4 Additionally, on April 13, 2016, the Department requested supplemental information pertaining to certain areas of the Petition with respect to Brazil 5 and the Republic of Korea.6 Petitioners filed responses to these requests on April 18, 2016.7

    3See Letter from the Department, “Petitions for the Imposition of Antidumping Duties on Imports of Certain Carbon and Alloy Steel Cut-to-Length Plate from Austria, Belgium, Brazil, the People's Republic of China, France, the Federal Republic of Germany, Italy, Japan, the Republic of Korea, South Africa, Taiwan, and Turkey: Supplemental Questions,” April 13, 2016 (General Issues Supplemental Questionnaire); see also Memorandum to the File from Vicki Flynn “Phone Call with Counsel to Petitioners,” April 21, 2016.

    4See Letter from Petitioners, “Certain Carbon and Alloy Steel Cut-to-Length Plate from Austria, Belgium, Brazil, the People's Republic of China, France, the Federal Republic of Germany, Italy, Japan, the Republic of Korea, South Africa, Taiwan, and Turkey: Petitioners' Amendment to Petition Volume I Related to General Issues,” April 18, 2016 (General Issues Supplement); see also Letter from Petitioners to the Secretary of Commerce “Certain Carbon and Alloy Steel Cut-to-Length Plate from Austria, Belgium, Brazil, the People's Republic of China, France, the Federal Republic of Germany, Italy, Japan, the Republic of Korea, South Africa, Taiwan, and the Republic of Turkey—Petitioners' Amendment to Petition Volume I Related to General Issues” (April 25, 2016) (Second General Issues Supplement).

    5See Letter from the Department “Petition for the Imposition of Countervailing Duties on Imports of Certain Carbon and Alloy Steel Cut-to-Length Plate from Brazil: Supplemental Questions,” April 13, 2016.

    6See Letter from the Department, “Petition for the Imposition of Countervailing Duties on Imports of Certain Carbon and Alloy Steel Cut-to-Length Plate from the Republic of Korea: Supplemental Questions,” April 13, 2016.

    7See Letter from Petitioners “Re: Certain Carbon and Alloy Steel Cut-to-Length Plate from Austria, Belgium, Brazil, the People's Republic of China, France, the Federal Republic of Germany, Italy, Japan, the Republic of Korea, South Africa, Taiwan, and Turkey—Petitioners' Amendment to Petition,” dated April 18, 2016.

    In accordance with section 702(b)(1) of the Tariff Act of 1930, as amended (the Act), Petitioners allege that the Governments of Brazil (GOB), the PRC (GOC), and Korea (GOK) are providing countervailable subsidies, within the meaning of sections 701 and 771(5) of the Act, to imports of CTL plate from Brazil, the PRC, and Korea, respectively, and that such imports are materially injuring, or threatening material injury to, an industry in the United States. Also, consistent with section 702(b)(1) of the Act, for those alleged programs on which we are initiating a CVD investigation, the Petition is accompanied by information reasonably available to Petitioners supporting their allegations.

    The Department finds that Petitioners filed the Petition on behalf of the domestic industry because Petitioners are interested parties as defined in section 771(9)(C) of the Act. The Department also finds that Petitioners demonstrated sufficient industry support with respect to the initiation of the CVD investigations that Petitioners are requesting.8

    8See “Determination of Industry Support for the Petition” section, below.

    Period of Investigations

    The period of investigation is January 1, 2015, through December 31, 2015.9

    9See 19 CFR 351.204(b)(2).

    Scope of the Investigation

    The product covered by these investigations is CTL plate from Brazil, the PRC, and Korea. For a full description of the scope of these investigations, see Appendix I of this notice.

    Comments on Scope of the Investigations

    During our review of the Petitions, the Department issued questions to and received responses from Petitioners pertaining to the proposed scope to ensure that the scope language in the Petition would be an accurate reflection of the products for which the domestic industry is seeking relief.10

    10See General Issues Supplemental Questionnaire; see also General Issues Supplement; Second General Issues Supplement.

    As discussed in the preamble to the Department's regulations,11 we are setting aside a period for interested parties to raise issues regarding product coverage (i.e., scope). The Department will consider all comments received from interested parties and, if necessary, will consult with the interested parties prior to the issuance of the preliminary determination. If scope comments include factual information,12 all such factual information should be limited to public information. In order to facilitate preparation of its questionnaire, the Department requests all interested parties to submit such comments by 5:00 p.m. Eastern Time (ET) on Wednesday, May 18, 2016, which is 20 calendar days from the signature date of this notice. Any rebuttal comments, which may include factual information, must be filed by 5:00 p.m. ET on Tuesday, May 31, 2016, which is the next business day after 10 calendar days from the initial comments deadline.13

    11See Antidumping Duties; Countervailing Duties; Final Rule, 62 FR 27296, 27323 (May 19, 1997).

    12See 19 CFR 351.102(b)(21).

    13See 19 CFR 351.303(b).

    The Department requests that any factual information the parties consider relevant to the scope of the investigation be submitted during this time period. However, if a party subsequently finds that additional factual information pertaining to the scope of the investigation may be relevant, the party may contact the Department and request permission to submit the additional information. All such comments must be filed on the record of the concurrent CVD investigations, as well as the AD investigations of CTL plate from Austria, Belgium, France, the Federal Republic of Germany, Italy, Japan, South Africa, Taiwan, and Turkey.

    Filing Requirements

    All submissions to the Department must be filed electronically using Enforcement and Compliance's Antidumping Duty and Countervailing Duty Centralized Electronic Service System (ACCESS).14 An electronically-filed document must be received successfully in its entirety by the time and date it is due. Documents excepted from the electronic submission requirements must be filed manually (i.e., in paper form) with Enforcement and Compliance's APO/Dockets Unit, Room 18022, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230, and stamped with the date and time of receipt by the applicable deadlines.

    14See 19 CFR 351.303 (for general filing requirements); see also Antidumping and Countervailing Duty Proceedings: Electronic Filing Procedures; Administrative Protective Order Procedures, 76 FR 39263 (July 6, 2011), for details of the Department's electronic filing requirements, which went into effect on August 5, 2011. Information on help using ACCESS can be found at https://access.trade.gov/help.aspx, and a handbook can be found at https://access.trade.gov/help/Handbook%20on%20Electronic%20Filling%20Procedures.pdf.

    Consultations

    Pursuant to section 702(b)(4)(A)(i) of the Act, the Department notified representatives of the GOB, GOC and GOK of the receipt of the Petition. Also, in accordance with section 702(b)(4)(A)(ii) of the Act, the Department provided representatives of the GOB, GOC and GOK the opportunity for consultations with respect to the CVD Petitions. Consultations with the GOB were held at the Department's main building on April 26, 2016. The GOC submitted consultation comments to the Department on April 23, 2016, in lieu of holding consultations.15 All invitation letters and memoranda regarding these consultations are on file electronically via ACCESS.16

    15See Memo to the File, from Katie Marksberry, Case Analyst, Re: Countervailing Duty Petition on Carbon and Alloy Steel Cut-To-Length Plate from the People's Republic of China: Comments from the Government of the People's Republic of China Regarding the Petition, dated April 25, 2016.

    16 As the GOK did not request consultations prior to the initiation of this investigation, the Department and the GOK did not hold consultations.

    Determination of Industry Support for the Petitions

    Section 702(b)(1) of the Act requires that a petition be filed on behalf of the domestic industry. Section 702(c)(4)(A) of the Act provides that a petition meets this requirement if the domestic producers or workers who support the petition account for: (i) At least 25 percent of the total production of the domestic like product; and (ii) more than 50 percent of the production of the domestic like product produced by that portion of the industry expressing support for, or opposition to, the petition. Moreover, section 702(c)(4)(D) of the Act provides that, if the petition does not establish support of domestic producers or workers accounting for more than 50 percent of the total production of the domestic like product, the Department shall: (i) Poll the industry or rely on other information in order to determine if there is support for the petition, as required by subparagraph (A); or (ii) determine industry support using a statistically valid sampling method to poll the “industry.”

    Section 771(4)(A) of the Act defines the “industry” as the producers as a whole of a domestic like product. Thus, to determine whether a petition has the requisite industry support, the statute directs the Department to look to producers and workers who produce the domestic like product. The International Trade Commission (ITC), which is responsible for determining whether “the domestic industry” has been injured, must also determine what constitutes a domestic like product in order to define the industry. While both the Department and the ITC must apply the same statutory definition regarding the domestic like product,17 they do so for different purposes and pursuant to a separate and distinct authority. In addition, the Department's determination is subject to limitations of time and information. Although this may result in different definitions of the like product, such differences do not render the decision of either agency contrary to law.18

    17 See section 771(10) of the Act.

    18See USEC, Inc. v. United States, 132 F. Supp. 2d 1, 8 (CIT 2001) (citing Algoma Steel Corp., Ltd. v. United States, 688 F. Supp. 639, 644 (CIT 1988), aff'd 865 F.2d 240 (Fed. Cir. 1989)).

    Section 771(10) of the Act defines the domestic like product as “a product which is like, or in the absence of like, most similar in characteristics and uses with, the article subject to an investigation under this title.” Thus, the reference point from which the domestic like product analysis begins is “the article subject to an investigation” (i.e., the class or kind of merchandise to be investigated, which normally will be the scope as defined in the Petitions).

    With regard to the domestic like product, Petitioners do not offer a definition of the domestic like product distinct from the scope of the investigations. Based on our analysis of the information submitted on the record, we have determined that CTL Plate constitutes a single domestic like product and we have analyzed industry support in terms of that domestic like product.19

    19 For a discussion of the domestic like product analysis in this case, see Countervailing Duty Investigation Initiation Checklist: Certain Carbon and Alloy Steel Cut-to-Length Plate from Brazil (Brazil CVD Initiation Checklist), at Attachment II, Analysis of Industry Support for the Antidumping and Countervailing Duty Petitions Covering Certain Carbon and Alloy Steel Cut-to-Length Plate from Austria, Belgium, Brazil, the People's Republic of China, France, the Federal Republic of Germany, Italy, Japan, the Republic of Korea, South Africa, Taiwan, and the Republic of Turkey (Attachment II); Countervailing Duty Investigation Initiation Checklist: Certain Carbon and Alloy Steel Cut-to-Length Plate from the People's Republic of China (PRC CVD Initiation Checklist), at Attachment II; and Countervailing Duty Investigation Initiation Checklist: Certain Carbon and Alloy Steel Cut-to-Length Plate from the Republic of Korea (Korea CVD Initiation Checklist), at Attachment II. These checklists are dated concurrently with this notice and on file electronically via ACCESS. Access to documents filed via ACCESS is also available in the Central Records Unit, Room B8024 of the main Department of Commerce building.

    In determining whether Petitioners have standing under section 702(c)(4)(A) of the Act, we considered the industry support data contained in the Petitions with reference to the domestic like product as defined in the “Scope of the Investigations,” in Appendix I of this notice. To establish industry support, Petitioners provided their shipments of the domestic like product in 2015, as well as the 2015 shipments of Universal Stainless & Alloy Products, Inc., a supporter of the Petitions, and compared these shipments to the estimated total shipments of the domestic like product for the entire domestic industry.20 Because data regarding total production of the domestic like product are not reasonably available to Petitioners and Petitioners have established that shipments are a reasonable proxy for production,21 we have relied on the shipment data provided by Petitioners for purposes of measuring industry support.22

    20See Volume I of the Petitions, at 2-4 and Exhibits I-3 through I-5; see also General Issues Supplement, at 7-11 and Exhibits I-Supp-2 through I-Supp-4 and I-Supp-11.

    21See Volume I of the Petitions, at 3 and Exhibit I-4; see also General Issues Supplement, at 7.

    22See Volume I of the Petitions, at 2-4 and Exhibits I-4 and I-5; see also General Issues Supplement, at 8-11 and Exhibits I-Supp-2, I-Supp-3, and I-Supp-11. For further discussion, see Brazil CVD Initiation Checklist, PRC CVD Initiation Checklist, and Korea CVD Initiation Checklist, at Attachment II.

    Our review of the data provided in the Petitions, General Issues Supplement, and other information readily available to the Department indicates that Petitioners have established industry support.23 First, the Petitions established support from domestic producers (or workers) accounting for more than 50 percent of the total shipments 24 of the domestic like product and, as such, the Department is not required to take further action in order to evaluate industry support (e.g., polling).25 Second, the domestic producers (or workers) have met the statutory criteria for industry support under section 702(c)(4)(A)(i) of the Act for all of the Petitions because the domestic producers (or workers) who support each of the Petitions account for at least 25 percent of the total shipments of the domestic like product.26 Finally, the domestic producers (or workers) have met the statutory criteria for industry support under section 702(c)(4)(A)(ii) of the Act for all of the Petitions because the domestic producers (or workers) who support each of the Petitions account for more than 50 percent of the shipments of the domestic like product produced by that portion of the industry expressing support for, or opposition to, the Petitions.27 Accordingly, the Department determines that the Petitions were filed on behalf of the domestic industry within the meaning of section 702(b)(1) of the Act.

    23See Brazil CVD Initiation Checklist, PRC CVD Initiation Checklist, and Korea CVD Initiation Checklist, at Attachment II.

    24 As mentioned above, Petitioners established that shipments are a reasonable proxy for production data. Section 351.203(e)(1) of the Department's regulations states “production levels may be established by reference to alternative data that the Secretary determines to be indicative of production levels.”

    25See section 702(c)(4)(D) of the Act; see also Brazil CVD Initiation Checklist, PRC CVD Initiation Checklist, and Korea CVD Initiation Checklist, at Attachment II.

    26See Brazil CVD Initiation Checklist, PRC CVD Initiation Checklist, and Korea CVD Initiation Checklist, at Attachment II.

    27Id.

    The Department finds that Petitioners filed the Petitions on behalf of the domestic industry because they are interested parties as defined in section 771(9)(C) of the Act and they have demonstrated sufficient industry support with respect to the CVD investigations that they are requesting the Department initiate.28

    28Id.

    Injury Test

    Because Brazil, the PRC, and Korea are “Subsidies Agreement Countries” within the meaning of section 701(b) of the Act, section 701(a)(2) of the Act applies to these investigations. Accordingly, the ITC must determine whether imports of the subject merchandise from Brazil, the PRC, and Korea materially injure, or threaten material injury to, a U.S. industry.

    Allegations and Evidence of Material Injury and Causation

    Petitioners allege that imports of the subject merchandise are benefitting from countervailable subsidies and that such imports are causing, or threaten to cause, material injury to the U.S. industry producing the domestic like product. In addition, with regard to the PRC and Korea, Petitioners allege that subject imports exceed the negligibility threshold provided for under section 771(24)(A) of the Act.29

    29See Volume I of the Petitions, at 25-29 and Exhibits I-13 and I-16.

    In CVD petitions, section 771(24)(A) of the Act provides that imports of subject merchandise must exceed the negligibility threshold of three percent, except that imports of subject merchandise from developing countries in CVD investigations must exceed the negligibility threshold of four percent, pursuant to section 771(24)(B) of the Act. Brazil has been designated as a developing country.30

    30See section 771(36)(A)-(B) of the Act.

    While the allegedly subsidized imports from Brazil do not individually meet the statutory negligibility threshold of four percent, Petitioners allege and provide supporting evidence that there is the potential that imports from Brazil will imminently exceed the negligibility threshold and, therefore, are not negligible for purposes of a threat determination.31 Petitioners' arguments regarding the potential for imports to imminently exceed the negligibility threshold are consistent with the statutory criterial for “negligibility in threat analysis” under section 771(24)(A)(iv) of the Act, which provides that imports shall not be treated as negligible if there is a potential that subject imports from a country will imminently exceed the statutory requirements for negligibility.

    31See Second General Issues Supplement, at 1-4 and Exhibit 1.

    Petitioners contend that the industry's injured condition is illustrated by reduced market share; declines in production, capacity utilization, U.S. shipments, labor hours, and wages; underselling and price suppression or depression; deteriorating financial performance; and lost sales and revenues.32 We have assessed the allegations and supporting evidence regarding material injury, threat of material injury, and causation, and we have determined that these allegations are properly supported by adequate evidence and meet the statutory requirements for initiation.33

    32See Volume I of the Petitions, at 20-22, 34-47 and Exhibits I-4, I-5, I-9, I-10, I-12 through I-14, I-16, and I-17; see also General Issues Supplement, at 11-15 and Exhibits I-Supp-1, I-Supp-6, I-Supp-7, and I-Supp-9.

    33See Brazil CVD Initiation Checklist, PRC CVD Initiation Checklist, and Korea CVD Initiation Checklist, at Attachment III, Analysis of Allegations and Evidence of Material Injury and Causation for the Antidumping and Countervailing Duty Petitions Covering Certain Carbon and Alloy Steel Cut-to-Length Plate from Austria, Belgium, Brazil, the People's Republic of China, France, the Federal Republic of Germany, Italy, Japan, the Republic of Korea, South Africa, Taiwan, and the Republic of Turkey.

    Initiation of CVD Investigation

    Section 702(b)(1) of the Act requires the Department to initiate a CVD investigation whenever an interested party files a CVD petition on behalf of an industry that (1) alleges the elements necessary for an imposition of a duty under section 701(a) of the Act and (2) is accompanied by information reasonably available to Petitioners supporting the allegations.

    Petitioners allege that producers/exporters of CTL plate in Brazil, the PRC, and Korea benefit from countervailable subsidies bestowed by the governments of these countries, respectively. The Department examined the Petitions and finds that they comply with the requirements of section 702(b)(1) of the Act. Therefore, in accordance with section 702(b)(1) of the Act, we are initiating CVD investigations to determine whether manufacturers, producers, and/or exporters of CTL plate from Brazil, the PRC, and Korea receive countervailable subsidies from the governments of these countries, respectively.

    On June 29, 2015, the President of the United States signed into law the Trade Preferences Extension Act of 2015, which made numerous amendments to the AD and CVD law.34 The 2015 law does not specify dates of application for those amendments. On August 6, 2015, the Department published an interpretative rule, in which it announced the applicability dates for each amendment to the Act, except for amendments contained in section 771(7) of the Act, which relate to determinations of material injury by the ITC.35 The amendments to sections 776 and 782 of the Act are applicable to all determinations made on or after August 6, 2015, and, therefore, apply to these CVD investigations.36

    34See Trade Preferences Extension Act of 2015, Public Law 114-27, 129 Stat. 362 (2015).

    35See Dates of Application of Amendments to the Antidumping and Countervailing Duty Laws Made by the Trade Preferences Extension Act of 2015, 80 FR 46793 (August 6, 2015) (Applicability Notice). The 2015 amendments may be found at https://www.congress.gov/bill/114th-congress/house-bill/1295/text/pl.

    36See Applicability Notice, 80 FR at 46794-95.

    Brazil

    Based on our review of the petition, we find that there is sufficient information to initiate a CVD investigation on 24 of the 25 alleged programs. For a full discussion of the basis for our decision to initiate or not initiate on each program, see the Brazil CVD Initiation Checklist.

    The PRC

    Based on our review of the petition, we find that there is sufficient information to initiate a CVD investigation on 43 of the 44 alleged programs. For a full discussion of the basis for our decision to initiate or not initiate on each program, see the PRC CVD Initiation Checklist.

    Korea

    Based on our review of the petition, out of the 42 alleged programs, we find that there is sufficient information to initiate a CVD investigation on 39 programs and to partially initiate an investigation regarding one program. For a full discussion of the basis for our decision to initiate or not initiate on each program, see the Korea CVD Initiation Checklist.

    A public version of the initiation checklist for each investigation is available on ACCESS.

    In accordance with section 703(b)(1) of the Act and 19 CFR 351.205(b)(1), unless postponed, we will make our preliminary determination no later than 65 days after the date of this initiation.

    Respondent Selection

    Petitioners named three companies as producers/exporters of CTL plate in Brazil, 56 in the PRC, and 21 in Korea.37 In the event the Department determines the number of companies subject to each investigation is large, the Department intends to follow its standard practice in CVD investigations, and, where appropriate, select respondents based on U.S. Customs and Border Protection (CBP) data for U.S. imports of CTL plate during the POI under the appropriate Harmonized Tariff Schedule of the United States numbers. We intend to release CBP data under Administrative Protective Order (APO) to all parties with access to information protected by APO within five business days of publication of this Federal Register notice. Comments regarding the CBP data and respondent selection should be submitted seven calendar days after the placement of the CBP data on the record of this investigation. Parties wishing to submit rebuttal comments should submit those comments five calendar days after the deadline for initial comments.

    37See Petition, Volume I at Exhibit I-8.

    Comments must be filed electronically using ACCESS. An electronically-filed document must be received successfully, in its entirety, by ACCESS no later than 5:00 p.m. ET on the date noted above. We intend to make our decision regarding respondent selection within 20 days of publication of this notice. Interested parties must submit applications for disclosure under APO in accordance with 19 CFR 351.305(b). Instructions for filing such applications may be found on the Department's Web site at http://enforcement.trade.gov/apo.

    Distribution of Copies of the Petition

    In accordance with section 702(b)(4)(A)(i) of the Act and 19 CFR 351.202(f), a copy of the public version of the Petition has been provided to the GOB, GOC and GOK via ACCESS. To the extent practicable, we will attempt to provide a copy of the public version of the Petitions to each known exporter (as named in the Petitions), consistent with 19 CFR 351.203(c)(2).

    ITC Notification

    We will notify the ITC of our initiation, as required by section 702(d) of the Act.

    Preliminary Determinations by the ITC

    The ITC will preliminarily determine, within 45 days after the date on which the Petition was filed, whether there is a reasonable indication that imports of CTL plate from Brazil, the PRC, and Korea are materially injuring, or threatening material injury to, a U.S. industry.38 A negative ITC determination will result in the investigation being terminated.39 Otherwise, this investigation will proceed according to statutory and regulatory time limits.

    38See section 703(a)(2) of the Act.

    39See section 703(a)(1) of the Act.

    Submission of Factual Information

    Factual information is defined in 19 CFR 351.102(b)(21) as: (i) Evidence submitted in response to questionnaires; (ii) evidence submitted in support of allegations; (iii) publicly available information to value factors under 19 CFR 351.408(c) or to measure the adequacy of remuneration under 19 CFR 351.511(a)(2); (iv) evidence placed on the record by the Department; and (v) evidence other than factual information described in (i)-(iv). 19 CFR 351.301(b) requires any party, when submitting factual information, to specify under which subsection of 19 CFR 351.102(b)(21) the information is being submitted and, if the information is submitted to rebut, clarify, or correct factual information already on the record, to provide an explanation identifying the information already on the record that the factual information seeks to rebut, clarify, or correct. Time limits for the submission of factual information are addressed in 19 CFR 351.301, which provides specific time limits based on the type of factual information being submitted. Parties should review the regulations prior to submitting factual information in this investigation.

    Extension of Time Limits Regulation

    Parties may request an extension of time limits before the expiration of a time limit established under 19 CFR 351.301, or as otherwise specified by the Secretary. In general, an extension request will be considered untimely if it is filed after the expiration of the time limit established under 19 CFR 351.301 expires. For submissions that are due from multiple parties simultaneously, an extension request will be considered untimely if it is filed after 10:00 a.m. on the due date. Under certain circumstances, we may elect to specify a different time limit by which extension requests will be considered untimely for submissions which are due from multiple parties simultaneously. In such a case, we will inform parties in the letter or memorandum setting forth the deadline (including a specified time) by which extension requests must be filed to be considered timely. An extension request must be made in a separate, stand-alone submission; under limited circumstances we will grant untimely-filed requests for the extension of time limits. Review Extension of Time Limits; Final Rule, 78 FR 57790 (September 20, 2013), available at http://www.thefederalregister.org/fdsys/pkg/FR-2013-09-20/html/2013-22853.htm, prior to submitting factual information in this investigation.

    Certification Requirements

    Any party submitting factual information in an AD or CVD proceeding must certify to the accuracy and completeness of that information.40 Parties are hereby reminded that revised certification requirements are in effect for company/government officials, as well as their representatives. Investigations initiated on the basis of petitions filed on or after August 16, 2013, and other segments of any AD or CVD proceedings initiated on or after August 16, 2013, should use the formats for the revised certifications provided at the end of the Final Rule. 41 The Department intends to reject factual submissions if the submitting party does not comply with the applicable revised certification requirements.

    40See section 782(b) of the Act.

    41See Certification of Factual Information To Import Administration During Antidumping and Countervailing Duty Proceedings, 78 FR 42678 (July 17, 2013) (“Final Rule”); see also frequently asked questions regarding the Final Rule, available at http://enforcement.trade.gov/tlei/notices/factual_info_final_rule_FAQ_07172013.pdf.

    Notification to Interested Parties

    Interested parties must submit applications for disclosure under APO in accordance with 19 CFR 351.305. On January 22, 2008, the Department published Antidumping and Countervailing Duty Proceedings: Documents Submission Procedures; APO Procedures, 73 FR 3634 (January 22, 2008). Parties wishing to participate in this investigation should ensure that they meet the requirements of these procedures (e.g., the filing of letters of appearance as discussed at 19 CFR 351.103(d)).

    This notice is issued and published pursuant to sections 702 and 777(i) of the Act.

    Dated: April 28, 2016. Paul Piquado, Assistant Secretary for Enforcement and Compliance. Appendix I Scope of the Investigations

    The products covered by these investigations are certain carbon and alloy steel hot-rolled or forged flat plate products not in coils, whether or not painted, varnished, or coated with plastics or other non-metallic substances (cut-to-length plate). Subject merchandise includes plate that is produced by being cut-to-length from coils or from other discrete length plate and plate that is rolled or forged into a discrete length. The products covered include (1) Universal mill plates (i.e., flat-rolled products rolled on four faces or in a closed box pass, of a width exceeding 150 mm but not exceeding 1250 mm, and of a thickness of not less than 4 mm, which are not in coils and without patterns in relief), and (2) hot-rolled or forged flat steel products of a thickness of 4.75 mm or more and of a width which exceeds 150 mm and measures at least twice the thickness, and which are not in coils, whether or not with patterns in relief. The covered products described above may be rectangular, square, circular or other shapes and include products of either rectangular or non-rectangular cross-section where such non-rectangular cross-section is achieved subsequent to the rolling process, i.e., products which have been “worked after rolling”, (e.g., products which have been beveled or rounded at the edges).

    For purposes of the width and thickness requirements referenced above, the following rules apply:

    (1) Except where otherwise stated where the nominal and actual thickness or width measurements vary, a product from a given subject country is within the scope if application of either the nominal or actual measurement would place it within the scope based on the definitions set forth above unless the product is already covered by an order existing on that specific country (e.g., orders on hot-rolled flat-rolled steel); and

    (2) where the width and thickness vary for a specific product (e.g., the thickness of certain products with non-rectangular cross-section, the width of certain products with non-rectangular shape, etc.), the measurement at its greatest width or thickness applies.

    Steel products included in the scope of these investigations are products in which: (1) Iron predominates, by weight, over each of the other contained elements; and (2) the carbon content is 2 percent or less by weight.

    Subject merchandise includes cut-to-length plate that has been further processed in the subject country or a third country, including but not limited to pickling, oiling, levelling, annealing, tempering, temper rolling, skin passing, painting, varnishing, trimming, cutting, punching, beveling, and/or slitting, or any other processing that would not otherwise remove the merchandise from the scope of the investigations if performed in the country of manufacture of the cut-to-length plate.

    All products that meet the written physical description, are within the scope of these investigations unless specifically excluded or covered by the scope of an existing order. The following products are outside of, and/or specifically excluded from, the scope of these investigations:

    (1) Products clad, plated, or coated with metal, whether or not painted, varnished or coated with plastic or other non-metallic substances;

    (2) military grade armor plate certified to one of the following specifications or to a specification that references and incorporates one of the following specifications:

    • MIL-A-12560,

    • MIL-DTL-12560H,

    • MIL-DTL-12560J,

    • MIL-DTL-12560K,

    • MIL-DTL-32332,

    • MIL-A-46100D,

    • MIL-DTL-46100-E,

    • MIL-46177C,

    • MIL-S-16216K Grade HY80,

    • MIL-S-16216K Grade HY100,

    • MIL-S-24645A HSLA-80;

    • MIL-S-24645A HSLA-100,

    • T9074-BD-GIB-010/0300 Grade HY80,

    • T9074-BD-GIB-010/0300 Grade HY100,

    • T9074-BD-GIB-010/0300 Grade HSLA80,

    • T9074-BD-GIB-010/0300 Grade HSLA100, and

    • T9074-BD-GIB-010/0300 Mod. Grade HSLA115,

    except that any cut-to-length plate certified to one of the above specifications, or to a military grade armor specification that references and incorporates one of the above specifications, will not be excluded from the scope if it is also dual- or multiple-certified to any other non-armor specification that otherwise would fall within the scope of this order;

    (3) stainless steel plate, containing 10.5 percent or more of chromium by weight;

    (4) CTL plate meeting the requirements of ASTM A-829, Grade E 4340 that are over 305 mm in actual thickness;

    (5) Alloy forged and rolled CTL plate greater than or equal to 152.4 mm in actual thickness meeting each of the following requirements:

    (a) Electric furnace melted, ladle refined & vacuum degassed and having a chemical composition (expressed in weight percentages):

    • Carbon 0.23-0.28,

    • Silicon 0.05-0.20,

    • Manganese 1.20-1.60,

    • Nickel not greater than 1.0,

    • Sulfur not greater than 0.007,

    • Phosphorus not greater than 0.020,

    • Chromium 1.0-2.5,

    • Molybdenum 0.35-0.80,

    • Boron 0.002-0.004,

    • Oxygen not greater than 20 ppm,

    • Hydrogen not greater than 2 ppm, and

    • Nitrogen not greater than 60 ppm;

    (b) With a Brinell hardness measured in all parts of the product including mid thickness falling within one of the following ranges:

    (i) 270-300 HBW,

    (ii) 290-320 HBW, or

    (iii) 320-350HBW;

    (c) Having cleanliness in accordance with ASTM E45 method A (Thin and Heavy): A not exceeding 1.5, B not exceeding 1.0, C not exceeding 0.5, D not exceeding 1.5; and

    (d) Conforming to ASTM A578-S9 ultrasonic testing requirements with acceptance criteria 2 mm flat bottom hole;

    (6) Alloy forged and rolled steel CTL plate over 407 mm in actual thickness and meeting the following requirements:

    (a) Made from Electric Arc Furnace melted, Ladle refined & vacuum degassed, alloy steel with the following chemical composition (expressed in weight percentages):

    • Carbon 0.23-0.28,

    • Silicon 0.05-0.15,

    • Manganese 1.20-1.50,

    • Nickel not greater than 0.4,

    • Sulfur not greater than 0.010,

    • Phosphorus not greater than 0.020,

    • Chromium 1.20-1.50,

    • Molybdenum 0.35-0.55,

    • Boron 0.002-0.004,

    • Oxygen not greater than 20 ppm,

    • Hydrogen not greater than 2 ppm, and

    • Nitrogen not greater than 60 ppm;

    (b) Having cleanliness in accordance with ASTM E45 method A (Thin and Heavy): A not exceeding 1.5, B not exceeding 1.5, C not exceeding 1.0, D not exceeding 1.5;

    (c) Having the following mechanical properties:

    (i) With a Brinell hardness not more than 237 HBW measured in all parts of the product including mid thickness; and having a Yield Strength of 75ksi min and UTS 95ksi or more, Elongation of 18% or more and Reduction of area 35% or more; having charpy V at −75 degrees F in the longitudinal direction equal or greater than 15 ft. lbs (single value) and equal or greater than 20 ft. lbs (average of 3 specimens) and conforming to the requirements of NACE MR01-75; or

    (ii) With a Brinell hardness not less than 240 HBW measured in all parts of the product including mid thickness; and having a Yield Strength of 90 ksi min and UTS 110 ksi or more, Elongation of 15% or more and Reduction of area 30% or more; having charpy V at −40 degrees F in the longitudinal direction equal or greater than 21 ft. lbs (single value) and equal or greater than 31 ft. lbs (average of 3 specimens);

    (d) Conforming to ASTM A578-S9 ultrasonic testing requirements with acceptance criteria 3.2 mm flat bottom hole; and

    (e) Conforming to magnetic particle inspection in accordance with AMS 2301;

    (7) Alloy forged and rolled steel CTL plate over 407 mm in actual thickness and meeting the following requirements:

    (a) Made from Electric Arc Furnace melted, ladle refined & vacuum degassed, alloy steel with the following chemical composition (expressed in weight percentages):

    • Carbon 0.25-0.30,

    • Silicon not greater than 0.25,

    • Manganese not greater than 0.50,

    • Nickel 3.0-3.5,

    • Sulfur not greater than 0.010,

    • Phosphorus not greater than 0.020,

    • Chromium 1.0-1.5,

    • Molybdenum 0.6-0.9,

    • Vanadium 0.08 to 0.12

    • Boron 0.002-0.004,

    • Oxygen not greater than 20 ppm,

    • Hydrogen not greater than 2 ppm, and

    • Nitrogen not greater than 60 ppm.

    (b) Having cleanliness in accordance with ASTM E45 method A (Thin and Heavy): A not exceeding 1.0(t) and 0.5(h), B not exceeding 1.5(t) and 1.0(h), C not exceeding 1.0(t) and 0.5(h), and D not exceeding 1.5(t) and 1.0(h);

    (c) Having the following mechanical properties: A Brinell hardness not less than 350 HBW measured in all parts of the product including mid thickness; and having a Yield Strength of 145ksi or more and UTS 160ksi or more, Elongation of 15% or more and Reduction of area 35% or more; having charpy V at −40 degrees F in the transverse direction equal or greater than 20 ft. lbs (single value) and equal or greater than 25 ft. lbs (average of 3 specimens);

    (d) Conforming to ASTM A578-S9 ultrasonic testing requirements with acceptance criteria 3.2 mm flat bottom hole; and

    (e) Conforming to magnetic particle inspection in accordance with AMS 2301.

    At the time of the filing of the petition, there was an existing antidumping duty order on certain cut-to-length carbon-quality steel plate products from Korea. See Notice of Final Determination of Sales at Less Than Fair Value: Certain Cut-To-Length Carbon-Quality Steel Plate Products from Korea, 64 FR 73,196 (Dep't Commerce Dec. 29, 1999), as amended, 65 FR 6,585 (Dep't Commerce Feb 10, 2000) (1999 Korea AD Order). The scope of the antidumping duty investigation with regard to cut-to-length plate from Korea covers only (1) subject cut-to-length plate not within the physical description of cut-to-length carbon quality steel plate in the 1999 Korea AD Order, regardless of producer or exporter; and (2) cut-to-length plate produced and/or exported by those companies that were excluded or revoked from the 1999 Korea AD Order as of April 8, 2016. The only revoked or excluded company is Pohang Iron and Steel Company, also known as POSCO.

    At the time of the filing of the petition, there was an existing countervailing duty order on certain cut-to-length carbon-quality steel plate from Korea. See Final Affirmative Countervailing Duty Determination: Certain Cut-to-Length Carbon-Quality Steel Plate From the Republic of Korea, 64 FR 73,176 (Dep't Commerce Dec. 29, 1999), as amended, 65 FR 6,587 (Dep't Commerce Feb. 10, 2000) (1999 Korea CVD Order). The scope of the countervailing duty investigation with regard to cut-to-length plate from Korea covers only (1) subject cut-to-length plate not within the physical description of cut-to-length carbon quality steel plate in the 1999 Korea CVD Order regardless of producer or exporter, and (2) cut-to-length plate produced and/or exported by those companies that were excluded or revoked from the 1999 Korea CVD Order as of April 8, 2016. The only revoked or excluded company is Pohang Iron and Steel Company, also known as POSCO.

    Excluded from the scope of the antidumping duty investigation on cut-to-length plate from China are any products covered by the existing antidumping duty order on certain cut-to-length carbon steel plate from the People's Republic of China. See Suspension Agreement on Certain Cut-to-Length Carbon Steel Plate From the People's Republic of China; Termination of Suspension Agreement and Notice of Antidumping Duty Order, 68 FR 60,081 (Dep't Commerce Oct. 21, 2003), as amended, Affirmative Final Determination of Circumvention of the Antidumping Duty Order on Certain Cut-to-Length Carbon Steel Plate From the People's Republic of China, 76 FR 50,996, 50,996-97 (Dep't of Commerce Aug. 17, 2011). On August 17, 2011, the U.S. Department of Commerce found that the order covered all imports of certain cut-to-length carbon steel plate products with 0.0008 percent or more boron, by weight, from China not meeting all of the following requirements: aluminum level of 0.02 percent or greater, by weight; a ratio of 3.4 to 1 or greater, by weight, of titanium to nitrogen; and a hardenability test (i.e., Jominy test) result indicating a boron factor of 1.8 or greater.

    The products subject to the investigations are currently classified in the Harmonized Tariff Schedule of the United States (HTSUS) under item numbers: 7208.40.3030, 7208.40.3060, 7208.51.0030, 7208.51.0045, 7208.51.0060, 7208.52.0000, 7211.13.0000, 7211.14.0030, 7211.14.0045, 7225.40.1110, 7225.40.1180, 7225.40.3005, 7225.40.3050, 7226.20.0000, and 7226.91.5000.

    The products subject to the investigations may also enter under the following HTSUS item numbers: 7208.40.6060, 7208.53.0000, 7208.90.0000, 7210.70.3000, 7210.90.9000, 7211.19.1500, 7211.19.2000, 7211.19.4500, 7211.19.6000, 7211.19.7590, 7211.90.0000, 7212.40.1000, 7212.40.5000, 7212.50.0000, 7214.10.000, 7214.30.0010, 7214.30.0080, 7214.91.0015, 7214.91.0060, 7214.91.0090, 7225.11.0000, 7225.19.0000, 7225.40.5110, 7225.40.5130, 7225.40.5160, 7225.40.7000, 7225.99.0010, 7225.99.0090, 7206.11.1000, 7226.11.9060, 7229.19.1000, 7226.19.9000, 7226.91.0500, 7226.91.1530, 7226.91.1560, 7226.91.2530, 7226.91.2560, 7226.91.7000, 7226.91.8000, and 7226.99.0180.

    The HTSUS subheadings above are provided for convenience and customs purposes only. The written description of the scope of the investigations is dispositive.

    [FR Doc. 2016-10631 Filed 5-4-16; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration (NOAA) Marine Protected Areas Federal Advisory Committee; Public Meeting AGENCY:

    Office of National Marine Sanctuaries (ONMS), National Ocean Service (NOS), National Oceanic and Atmospheric Administration (NOAA), Department of Commerce (DOC).

    ACTION:

    Notice of open meeting.

    SUMMARY:

    Notice is hereby given of a meeting of the Marine Protected Areas Federal Advisory Committee (Committee) in Winter Harbor, Maine.

    DATES:

    The meeting will be held Tuesday, May 24, 2016, from 9:00 a.m. to 5:00 p.m.; Wednesday, May 25, 2016, from 8:30 a.m. to 5:00 p.m.; and Thursday, May 26, 2016, from 8:30 a.m. to 5:00 p.m. These times and the agenda topics described below are subject to change. Refer to the Web page listed below for the most up-to-date meeting agenda.

    ADDRESSES:

    The meeting will be held at the Schoodic Institute at Acadia National Park, Schoodic Point, 9 Atterbury Circle, Winter Harbor, Maine 04693.

    FOR FURTHER INFORMATION CONTACT:

    Lauren Wenzel, Designated Federal Officer, MPA FAC, National Marine Protected Areas Center, 1305 East West Highway, Silver Spring, Maryland 20910. (Phone: 301-713-7265, Fax: 301-713-3110); email: [email protected]; or visit the National MPA Center Web site at http://marineprotectedareas.noaa.gov/.

    SUPPLEMENTARY INFORMATION:

    The Committee, composed of external, knowledgeable representatives of stakeholder groups, was established by the Department of Commerce (DOC) to provide advice to the Secretaries of Commerce and the Interior on implementation of Section 4 of Executive Order 13158, on marine protected areas (MPAs). The meeting is open to the public, and public comment will be accepted from 4:30 p.m. to 5:00 p.m. on Tuesday, May 24, 2016. In general, each individual or group will be limited to a total time of five (5) minutes. If members of the public wish to submit written statements, they should be submitted to the Designated Federal Official by Friday, May 20, 2016.

    Matters To Be Considered: The focus of the Committee's meeting will be to complete and act on Subcommittee and Working Group reports and recommendations related to ecological connectivity, external financing, and Arctic MPAs; provide an opportunity for public comment on MPA issues; and provide an opportunity for Committee input on potential future focus areas. The agenda is subject to change. The latest version will be posted at http://marineprotectedareas.noaa.gov/.

    Dated: April 28, 2016. John A. Armor, Acting Director, Office of National Marine Sanctuaries, National Ocean Service, National Oceanic and Atmospheric Administration.
    [FR Doc. 2016-10532 Filed 5-4-16; 8:45 am] BILLING CODE 3510-NK-P
    BUREAU OF CONSUMER FINANCIAL PROTECTION [Docket No: CFPB-2016-0019] Privacy Act of 1974, as Amended AGENCY:

    Bureau of Consumer Financial Protection.

    ACTION:

    Notice of a Revised Privacy Act System of Records.

    SUMMARY:

    In accordance with the Privacy Act of 1974, as amended, the Bureau of Consumer Financial Protection, hereinto referred to as the Consumer Financial Protection Bureau (CFPB or Bureau), gives notice of the establishment of a revised Privacy Act System of Records.

    DATES:

    Comments must be received no later than June 6, 2016. The new system of records will be effective June 14, 2016, unless the comments received result in a contrary determination.

    ADDRESSES:

    You may submit comments, identified by the title and docket number (see above), by any of the following methods:

    Electronic: [email protected] or http://www.regulations.gov. Follow the instructions for submitting comments.

    Mail: Claire Stapleton, Chief Privacy Officer, Consumer Financial Protection Bureau, 1700 G Street NW., Washington, DC 20552.

    Hand Delivery/Courier: Claire Stapleton, Chief Privacy Officer, Consumer Financial Protection Bureau, 1275 First Street NE., Washington, DC 20002.

    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 comments by telephoning (202) 435-7220. All comments, including attachments and other supporting materials, will become part of the public record and subject to public disclosure. You should submit only information that you wish to make available publicly. Sensitive personal information, such as account numbers or social security numbers, should not be included.
    FOR FURTHER INFORMATION CONTACT:

    Claire Stapleton, Chief Privacy Officer, Consumer Financial Protection Bureau, 1275 First Street NE., Washington, DC 20002, (202) 435-7220.

    SUPPLEMENTARY INFORMATION:

    The CFPB revises its Privacy Act System of Records Notice (SORN) “CFPB.009—Employee Administrative Records System.” As part of an annual review of this System of Records, the CFPB modifies the purpose(s) for which the system is maintained to clarify that the information in the system will be used for personnel actions and for administrative purposes to ensure quality control, performance, and improving management processes; the categories of individuals for the system to include applicants and detailees to the CFPB; and the record source categories for the system to include individuals who have applied for a position with the CFPB and to clarify the use for human resource functions.

    The report of the revised system of records has been submitted to the Committee on Oversight and Government Reform of the House of Representatives, the Committee on Homeland Security and Governmental Affairs of the Senate, and the Office of Management and Budget, pursuant to Appendix I to OMB Circular A-130, “Federal Agency Responsibilities for Maintaining Records About Individuals,” dated November 30, 2000,1 and the Privacy Act, 5 U.S.C. 552a(r). The revised system of records entitled “CFPB.009—Employee Administrative Records System” is published in its entirety below.

    1 Although pursuant to section 1017(a)(4)(E) of the Consumer Financial Protection Act, Public Law 111-203, the CFPB is not required to comply with OMB-issued guidance, it voluntarily follows OMB privacy-related guidance as a best practice and to facilitate cooperation and collaboration with other agencies.

    Dated: April 28, 2016. Claire Stapleton, Chief Privacy Officer, Bureau of Consumer Financial Protection. CFPB.009 SYSTEM NAME:

    Employee Administrative Records System

    SYSTEM LOCATION:

    Consumer Financial Protection Bureau, 1700 G Street NW., Washington, DC 20552.

    CATEGORIES OF INDIVIDUALS COVERED BY THE SYSTEM:

    Current and former CFPB employees, volunteers, detailees, applicants, and persons who work at the CFPB (collectively “employees”), and their named dependents and/or beneficiaries, their named emergency contacts, and individuals who have been extended offers of employment.

    CATEGORIES OF RECORDS IN THE SYSTEM:

    Records in this system may contain identifiable information about individuals including, without limitation: (1) Identification and contact information, including name, address, email address, phone number and other contact information; (2) employee emergency contact information, including name, phone number, relationship to employee or emergency contact; (3) Social Security number (SSN), employee ID number, organization code, pay rate, salary, grade, length of service, and other related pay and leave records including payroll data; (4) biographic and demographic data, including date of birth and marital or domestic partnership status; (5) employment-related information such as performance reports, training, professional licenses, certification, and memberships information, fitness center membership information, union dues, employee claims for loss or damage to personal property, and other information related to employment by the CFPB; (6) benefits data, such as health, life, travel, and disability insurance information; and (7) retirement benefits information and flexible spending account information.

    General personnel and administrative records contained in this system are covered under the government-wide systems of records notice published by the Office of Personnel Management (OPM/GOVT-1). This system complements OPM/GOVT-1 and this notice incorporates by reference but does not repeat all of the information contained in OPM/GOVT-1.

    AUTHORITY FOR MAINTENANCE OF THE SYSTEM:

    12 U.S.C. 5492-93, 5511; 31 U.S.C. 3721.

    PURPOSE(S):

    The information in the system is being collected to enable the CFPB to manage and administer human capital functions, including personnel actions, payroll, time and attendance, leave, insurance, tax, retirement and other benefits, and employee claims for loss or damage to personal property; and to prepare related reports to other federal agencies. The information will also be used for administrative purposes to ensure quality control, performance, and improving management processes.

    ROUTINE USES OF RECORDS MAINTAINED IN THE SYSTEM, INCLUDING CATEGORIES OF USERS AND THE PURPOSES OF SUCH USES:

    These records may be disclosed, consistent with the CFPB's Disclosure of Records and Information Rules, promulgated at 12 CFR 1070 et seq., to:

    (1) Appropriate agencies, entities, and persons when: (a) The CFPB suspects or has confirmed that the security or confidentiality of information in the system of records has been compromised; (b) the CFPB has determined that, as a result of the suspected or confirmed compromise, there is a risk of harm to economic or property interests, identity theft or fraud, or harm to the security or integrity of this system or other systems or programs (whether maintained by the CFPB or another agency or entity) that rely upon the compromised information; and (c) the disclosure made to such agencies, entities, and persons is reasonably necessary to assist in connection with the CFPB's efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm;

    (2) Another federal or state agency to (a) permit a decision as to access, amendment or correction of records to be made in consultation with or by that agency, or (b) verify the identity of an individual or the accuracy of information submitted by an individual who has requested access to or amendment or correction of records;

    (3) The Office of the President in response to an inquiry from that office made at the request of the subject of a record or a third party on that person's behalf;

    (4) Congressional offices in response to an inquiry made at the request of the individual to whom the record pertains;

    (5) Contractors, agents, or other authorized individuals performing work on a contract, service, cooperative agreement, job, or other activity on behalf of the CFPB or Federal Government and who have a need to access the information in the performance of their duties or activities;

    (6) The DOJ for its use in providing legal advice to the CFPB or in representing the CFPB in a proceeding before a court, adjudicative body, or other administrative body, where the use of such information by the DOJ is deemed by the CFPB to be relevant and necessary to the advice or proceeding, and such proceeding names as a party in interest:

    (a) The CFPB;

    (b) Any employee of the CFPB in his or her official capacity;

    (c) Any employee of the CFPB in his or her individual capacity where DOJ has agreed to represent the employee; or

    (d) The United States, where the CFPB determines that litigation is likely to affect the CFPB or any of its components;

    (7) A grand jury pursuant either to a federal or state grand jury subpoena, or to a prosecution request that such record be released for the purpose of its introduction to a grand jury, where the subpoena or request has been specifically approved by a court. In those cases where the Federal Government is not a party to the proceeding, records may be disclosed if a subpoena has been signed by a judge;

    (8) A court, magistrate, or administrative tribunal in the course of an administrative proceeding or judicial proceeding, including disclosures to opposing counsel or witnesses (including expert witnesses) in the course of discovery or other pre-hearing exchanges of information, litigation, or settlement negotiations, where relevant or potentially relevant to a proceeding, or in connection with criminal law proceedings;

    (9) Appropriate agencies, entities, and persons to the extent necessary to obtain information relevant to current and former CFPB employees' benefits, compensation, and employment;

    (10) Appropriate federal, state, local, foreign, tribal, or self-regulatory organizations or agencies responsible for investigating, prosecuting, enforcing, implementing, issuing, or carrying out a statute, rule, regulation, order, policy, or license if the information may be relevant to a potential violation of civil or criminal law, rule, regulation, order, policy, or license;

    (11) National, state or local income security and retirement agencies or entities involved in administration of employee retirement and benefits programs (e.g., state unemployment compensation agencies and state pension plans) and any of such agencies' contractors or plan administrators, when necessary to determine employee eligibility to participate in retirement or employee benefits programs, process employee participation in those programs, process claims with respect to individual employee participation in those programs, audit benefits paid under those programs, or perform any other administrative function in connection with those programs;

    (12) An executor of the estate of a current or former employee, a government entity probating the will of a current or former employee, a designated beneficiary of a current or former employee, or any person who is responsible for the care of a current or former employee, where the employee has died, has been declared mentally incompetent, or is under other legal disability, to the extent necessary to assist in obtaining any employment benefit or working condition for the current or former employee;

    (13) The Internal Revenue Service (IRS) and other governmental entities that are authorized to tax employees' compensation with wage and tax information in accordance with a withholding agreement with the CFPB pursuant to 5 U.S.C. 5516, 5517, and 5520, for the purpose of furnishing employees with IRS Forms W-2 that report such tax distributions;

    (14) Unions recognized as exclusive bargaining representatives under the Civil Service Reform Act of 1978, 5 U.S.C. 7111, 7114; and

    (15) Carriers, providers and other federal agencies involved in administration of employee retirement and benefits programs and such agencies' contractors or plan administrators, when necessary to determine employee eligibility to participate in retirement and benefits programs, process employee participation in those programs, process claims with respect to individual employee participation in those programs, audit benefits paid under those programs, or perform any other administrative function in connection with those programs and federal agencies that perform payroll and personnel processing and employee retirement and benefits plan services under interagency agreements or contracts, including the issuance of paychecks to employees, the distribution of wages, the administration of deductions from paychecks for retirement and benefits programs, and the distribution and receipt of those deductions. These agencies include, without limitation, the Department of Labor, the Department of Veterans Affairs, the Social Security Administration, the Federal Retirement Thrift Investment Board, the Department of Defense, OPM, the Board of Governors of the Federal Reserve System, the Department of the Treasury, and the National Finance Center at the U.S. Department of Agriculture.

    POLICIES AND PRACTICES FOR STORING, RETRIEVING, ACCESSING, RETAINING, AND DISPOSING OF RECORDS IN THE SYSTEM: STORAGE:

    Paper and electronic records.

    RETRIEVABILITY:

    Records are retrievable by a variety of fields including, without limitation, the individual's name, SSN, address, account number, transaction number, phone number, date of birth, or by some combination thereof.

    SAFEGUARDS:

    Access to electronic records is restricted to authorized personnel who have been issued non-transferrable access codes and passwords. Other records are maintained in locked file cabinets or rooms with access limited to those personnel whose official duties require access.

    RETENTION AND DISPOSAL:

    The CFPB will maintain electronic and paper records under the National Archives and Records Administration (NARA) schedules General Records Schedule (GRS) GRS 01, GRS 02, and GRS 18-15b.

    SYSTEM MANAGER(S) AND ADDRESS:

    Consumer Financial Protection Bureau, Chief Operating Officer, 1700 G Street NW., Washington, DC 20552.

    NOTIFICATION PROCEDURE:

    Individuals seeking notification and access to any record contained in this system of records, or seeking to contest its content, may inquire in writing in accordance with instructions appearing the CFPB's Disclosure of Records and Information Rules, promulgated at 12 CFR part 1070 et seq. Address such requests to: Chief Privacy Officer, Bureau of Consumer Financial Protection, 1700 G Street NW., Washington, DC 20552.

    RECORD ACCESS PROCEDURES:

    See “Notification Procedures” above.

    CONTESTING RECORD PROCEDURES:

    See “Notification Procedures” above.

    RECORD SOURCE CATEGORIES:

    Information in this system is obtained from current and former CFPB employees, their named dependents and/or beneficiaries, their named emergency contacts, individuals who have applied for a position or have been extended offers of employment by the CFPB, and from individuals and entities associated with federal employee benefits, retirement, human resource functions, accounting, and payroll systems administration.

    EXEMPTIONS CLAIMED FOR THE SYSTEM:

    None.

    [FR Doc. 2016-10501 Filed 5-4-16; 8:45 am] BILLING CODE 4810-AM-P
    DEPARTMENT OF DEFENSE OFFICE OF THE SECRETARY [Docket ID: DOD-2016-OS-0056] National Environmental Policy Act Implementing Procedures AGENCY:

    Defense Threat Reduction Agency/USSTRATCOM Center for Combating Weapons of Mass Destruction, Department of Defense.

    ACTION:

    Proposed guidance with a request for comment.

    SUMMARY:

    The Defense Threat Reduction Agency/USSTRATCOM Center for Combating Weapons of Mass Destruction (DTRA/SCC-WMD or the Agency) proposes to issue procedures to implement the National Environmental Policy Act (NEPA), Executive Order (E.O.) 11514, and Council on Environmental Quality (CEQ) regulations for implementing the procedural provisions of NEPA. Pursuant to CEQ regulations at 40 CFR 1507.3(a), the DTRA/SCC-WMD is soliciting comments on its proposed procedures.

    DATES:

    DTRA/SCC-WMD is providing a 30-day public review period. Comments must be received by June 6, 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: Department of Defense, Office of the Deputy Chief Management Officer, Directorate of Oversight and Compliance, 4800 Mark Center Drive, 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.

    FOR FURTHER INFORMATION CONTACT:

    Ms. Sherry Davis, Director, Environment, Safety, and Occupational Health Department, at (703) 767-7122 or by email at [email protected]

    SUPPLEMENTARY INFORMATION:

    DTRA/SCC-WMD is a combat support agency that counters weapons of mass destruction (WMD). DTRA/SCC-WMD keeps WMD out of the hands of terrorists and other enemies by locking down, monitoring, and destroying weapons and weapons-related material, assists with plans and responses to WMD events, and develops and delivers cutting-edge technologies to assist with these endeavors.

    As a Department of Defense (DoD) agency, the DTRA/SCC-WMD does not own real property. Most agency actions typically occur on host military service installations or ranges, or other Federal agency properties. DTRA/SCC-WMD formerly relied upon host installation NEPA implementing procedures, including categorical exclusions to address potential environmental impacts of agency actions. With the issuance of CEQ guidance “Establishing, Applying, and Revising Categorical Exclusions under the National Environmental Policy Act” (Nov. 23, 2010) and after consulting with CEQ and other similar DoD components, DTRA/SCC-WMD determined the need to establish NEPA implementing procedures and categorical exclusions specific to DTRA/SCC-WMD projects and actions. The information assembled while developing categorical exclusions is described in the “DTRA/SCC-WMD Administrative Record for Supporting Categorical Exclusions” and is available on the DTRA/SCC-WMD Web site at: http://www.dtra.mil/Home/NEPA.aspx.

    The proposed categorical exclusions describe the categories of actions that DTRA/SCC-WMD determined to normally not individually or cumulatively have significant impact on the environment. These and the other proposed implementing procedures will serve as the agency's guide for complying with the requirements of NEPA for DTRA/SCC-WMD actions.

    The text of the complete proposed DTRA/SCC-WMD NEPA implementing procedures can be found on the DTRA/SCC-WMD Web site at: http://www.dtra.mil/Home/NEPA.aspx and in this document.

    Dated: April 28, 2016. Aaron Siegel, Alternate OSD Federal Register Liaison Officer, Department of Defense. Table of Contents 1. Purpose 2. Applicability 3. Policy 4. Responsibilities 5. Environmental Planning & Analysis (a) Record of Environmental Review (b) Categorical Exclusion (CATEX) (c) Environmental Assessment (EA) (d) Finding of No Significant Impact (FONSI) (e) Environmental Impact Statement (EIS) (f) Record of Decision (ROD) 6. Mitigation and Monitoring 7. Subsequent Analyses (a) Tiering and Programmatic Review (b) Supplemental EAs/EISs (c) Adoption of EAs/EISs 8. Actions on Host Installations/Actions Abroad (a) Actions on Host Installations (b) Actions Occurring Abroad 9. Classified Actions 10. Administrative Record 11. Glossary (a) Abbreviations and Acronyms (b) Definitions Appendix A: The NEPA Process Appendix B: Categorical Exclusions (CATEXs) Appendix C: Record of Environmental Consideration (REC) Appendix D: Notice of Intent (NOI) Appendix E: Notice of Availability (NOA) Appendix F: Record of Decision (ROD) Defense Threat Reduction Agency/Usstratcom Center for Combating Weapons of Mass Destruction NEPA Implementing Procedures 1. Purpose

    Pursuant to DTRA/SCC-WMD Instruction 4715.5, “Environmental Compliance” (Aug. 22, 2014), this guide identifies requirements and provides procedures for implementing the provisions of the National Environmental Policy Act (NEPA) in accordance with Council on Environmental Quality Regulations for Implementing the Procedural Provisions of the National Environmental Policy Act, 40 CFR parts 1500-1508, and E.O. 12114, “Environmental Effects Abroad of Major Federal Actions” (Jan. 4, 1979). It supplements 40 CFR parts 1500-1508 and E.O. 12114 by establishing policy, responsibilities, and procedures for fully considering environmental consequences of proposed actions, preparing necessary documentation for actions with the potential for significant environmental impact, and demonstrating transparency in decision-making. DTRA/SCC-WMD does not own real property or undertake projects or programs where actions are planned or funded by private applicants or other non-Federal entities. Therefore, this guide does not include provisions to account for such actions.

    2. Applicability

    The requirements and procedures of this guide apply to all entities of DTRA/SCC-WMD and its executing agents.

    3. Policy

    It is DTRA/SCC-WMD policy to:

    (a) Integrate environmental consideration into all Agency/Center activities at the earliest possible planning stage, make decisions considering environmental consequences, assess a range of reasonable alternative actions, and take actions that protect, restore, and enhance the environment.

    (b) Prepare all necessary documentation required under NEPA and 40 CFR parts 1500-1508 whenever acting as the proponent or lead agency for a proposed action that has the potential for significant environmental impact.

    (c) Serve as a cooperating agency for activities in which DTRA/SCC-WMD participates but is not the proponent or lead agency and provide full cooperation and necessary technical expertise and documentation to the lead agency as requested.

    (d) Use programmatic and tiered analyses, when possible, to eliminate redundancies in future project/program analyses, effectively evaluate cumulative environmental effects, and reduce mission delays.

    (e) Periodically (at least every 7 years) review the effectiveness of its NEPA procedures including responsibilities, implementing procedures, and categorical exclusions (CATEXs), and when new information or circumstances warrant, review the currency of existing Programmatic Environmental Impact Statements (EISs) and Programmatic Environmental Assessments (EAs).

    (f) Involve the public in preparing and executing its NEPA procedures, and publish NEPA implementing procedures, CATEXs, and other relevant NEPA documentation as appropriate on the DTRA/SCC-WMD public Web site.

    (g) Prepare NEPA documentation and procedures that are written in plain language so that decision-makers and the public can readily understand them.

    (h) To the fullest extent possible, integrate NEPA requirements with other environmental review and consultation requirements including, but not limited to, Clean Water Act, Clean Air Act, Endangered Species Act, National Historic Preservation Act, Resource Conservation and Recovery Act, and Comprehensive Environmental Response, Compensation, and Liability Act.

    (i) Eliminate duplication with State and local procedures by providing for, as appropriate, joint planning processes and, where appropriate, joint preparation of NEPA reviews (analyses and documentation).

    (j) Eliminate duplication with other Federal procedures by jointly preparing NEPA reviews, or adopting other agencies' EAs and EISs, or incorporating by reference material into an EA or EIS where appropriate.

    (k) Comply with host installation NEPA requirements in addition to the requirements set forth in this guide. Equivalent host installation documentation may be used to satisfy DTRA/SCC-WMD documentation requirements.

    4. Responsibilities (a) Director, DTRA/SCC-WMD (J0)

    The J0 has final approval and signature authority of EIS Records of Decision (RODs) generated by DTRA/SCC-WMD or its contractors. This authority may be delegated as deemed appropriate by the J0.

    (b) Joint Director (JDIR), Acquisition, Finance, and Logistics (J4/8C)

    The JDIR, J4/8C monitors the effective implementation of these procedures through the Director, Environment, Safety, and Occupational Health (ESOH) Department (J4E) and hereby appoints the Director, J4E as the principal Agency/Center advisor on NEPA-related requirements.

    (c) Director, J4E

    The Director, J4E as the principal Agency advisor on NEPA-related requirements:

    (1) Provides guidance to Project/Program Managers as necessary on the requirements in this guide and maintains direct oversight of the NEPA process.

    (2) Reviews project proposals to determine NEPA applicability and requirements, and provides qualified personnel to support Project/Program Managers with NEPA compliance.

    (3) Performs environmental compliance reviews of EISs/RODs, EAs/Findings of No Significant Impact (FONSIs), and Records of Environmental Consideration (RECs) generated by DTRA/SCC-WMD or its contractors and provides initial approval by signature as the compliance authority.

    (4) When DTRA/SCC-WMD serves as a cooperating agency for activities in which it participates but is not the proponent or lead, reviews and approves NEPA documents as requested by the lead agency.

    (5) Maintains an organized administrative record of all NEPA documents generated by DTRA/SCC-WMD or its contractors, including documentation supporting Agency/Center CATEXs.

    (6) Represents DTRA/SCC-WMD in NEPA-related matters with external organizations.

    (7) Ensures required NEPA mitigation measures are documented in the administrative record, performed, and monitored.

    (d) Office of the General Counsel (J0GC)

    The J0GC provides a legal review of EISs, RODs, EAs, and FONSIs generated by DTRA/SCC-WMD or its contractors.

    (e) Governmental and Public Affairs Office (J0XG)

    The J0XG:

    (1) Assists Project/Program Managers with engaging the public for scoping meetings, accepting comments, providing adjudications, outreach efforts, and other related interactions.

    (2) Coordinates the public release of DTRA/SCC-WMD NEPA documentation using various mediums including local newspapers, DTRA/SCC-WMD's public Web sites, and the Federal Register (FR).

    (3) Approves, signs, and publishes Notices of Intent (NOI) and Notices of Availability (NOA).

    (f) Directorate JDIRs/Staff Office Chiefs/SCC-WMD Divisions

    The Directorate JDIRS/Staff Office Chiefs/SCC-WMD Divisions:

    (1) Integrate environmental considerations early in the planning stages of all Directorate/Staff Office/SCC-WMD Division activities with adequate time to ensure NEPA requirements can be met.

    (2) Provide project proposals to the Director, J4E for any planned DTRA/SCC-WMD activity with potential for environmental impact.

    (3) Provide necessary funding to satisfy NEPA requirements for Directorate/Staff Office/SCC-WMD Division activities subject to compliance.

    5. Environmental Planning & Analysis (a) Record of Environmental Review

    (1) A flowchart outlining the general NEPA process can be found in Appendix A.

    (2) As early in the planning process as possible, the Project/Program Manager of a proposed action must provide to the J4E a project proposal by completing the top section of a REC (found in Appendix C and the ESOH Team Site at: https://dtra1/j4-8c/j4e/default.aspx) with information regarding the scope of the activity.

    (3) A REC is used to document the environmental analysis for an activity. The REC could indicate that a CATEX applies and there are no extraordinary circumstances requiring further analysis; that the activity is covered under a previous analysis (EA/EIS) and further analysis is not required, or that additional analysis is needed (EA/EIS).

    (4) Based on conclusions of the initial environmental analysis, additional analysis may be required. Project/Program Managers must also comply with other applicable statutory or regulatory requirements set out in DTRA/SCC-WMD Instruction 4715.5, including but not limited to environmental permits, consultations, and approvals such as those required for actions affecting federally-listed threatened or endangered species or their designated critical habitat, historic and cultural preservation, safe drinking water requirements, as well as other applicable state, DoD, or local regulatory requirements.

    (b) Categorical Exclusion (CATEX)

    (1) A CATEX is a category of Agency/Center actions which have been determined to normally not individually or cumulatively have significant impact on the environment and therefore neither an EA nor EIS is required. Project/Program Managers may use a CATEX for a proposed action with approval from the J4E when there are no extraordinary circumstances that warrant further analysis in an EA or EIS. (i) A list of approved CATEXs can be found in Appendix B. DTRA/SCC-WMD must not use a CATEX that is not listed in the appendix. Proposals for additional CATEXs must be submitted to and approved by the J4E and CEQ, be reviewed through a public comment period, and be supported by appropriate substantiating documentation such as an EA/FONSI, impact demonstration projects, or information from professional staff, expert opinions, and scientific analyses. (ii) Extraordinary circumstances are also listed in Appendix B following the list of CATEXs.

    (2) If a CATEX applies, the J4E will document use of the specific CATEX on the REC, and the action may proceed. The REC should document any determination and conclusion where the issue of whether an extraordinary circumstance requires further review has been resolved. This determination can be made using current information and expertise, if available and adequate, or can be derived through conversation, as long as the basis for the determination is included in the REC. Copies of appropriate interagency correspondence can be attached to the REC. Example conclusions regarding screening criteria are as follows: (i) “U.S. Fish and Wildlife Service concurred in informal coordination that endangered or threatened species will not be adversely affected.” (ii) “Corps of Engineers determined action is covered by nationwide general permit.” (iii) “State Historic Preservation Officer concurred with action.” (iv) “State Department of Natural Resources concurred that no adverse effects to state sensitive species are expected.”

    (3) If a CATEX does not apply, either by not including the proposed action or due to extraordinary circumstances, and the action is not covered under an existing document, then an EA or EIS must be prepared unless the proposed action is not further considered.

    (4) To use a CATEX, the proponent must satisfy the following three screening conditions: (i) The action has not been segmented. Determine that the proposed action has not been segmented to meet the definition of a CATEX and fits within the category of actions described in the CATEX. Segmentation can occur when an action is broken down into small parts in order to avoid the appearance of significance of the total action. An action can be too narrowly defined, minimizing potential impacts in an effort to avoid a higher level of NEPA documentation. The scope of an action must include the consideration of connected actions, and the effects when applying extraordinary circumstances must consider cumulative impacts. (ii) No exceptional circumstances exist. Determine if the action involves extraordinary circumstances that would preclude the use of a CATEX (see Appendix B). (iii) One CATEX encompasses the proposed action. Identify a CATEX that encompasses the proposed action (see Appendix B). If multiple CATEXs could be applicable, proceed when it is clear that the entire proposed action is covered by one CATEX. Any limitation in any potentially applicable CATEX should be considered when determining whether it is appropriate to proceed without further analysis in an EA or EIS.

    (c) Environmental Assessment (EA)

    (1) An EA is a concise public document used to provide sufficient evidence and analysis for determining whether to prepare an EIS or FONSI or to comply with NEPA when an EIS is not necessary.

    (2) The EA must include, at a minimum, the following: (i) Cover page, which identifies the proposed action and the geographic location. (ii) Purpose and need for the proposed action or activity. (iii) Description of the proposed action with sufficient detail in terms that are understandable to readers that are not familiar with DTRA/SCC-WMD activities. (iv) Discussion of alternative actions considered, including the preferred action and a “no action” alternative. There is no requirement for a specific number of alternatives or a specific range of alternatives to be included in an EA. An EA may limit the range of alternatives to the proposed action and no action when there are no unresolved conflicts concerning alternative uses of available resources. For alternatives considered but eliminated from further study, the EA should briefly explain why these were eliminated. (v) Description of the affected environment. (vi) Analysis of the potential environmental impacts of the proposed action and alternatives. The EA must discuss, in comparative form, the reasonably foreseeable environmental impacts of the proposed action, the no action alternative, and any other reasonable alternatives necessary to address unresolved conflicts concerning the alternative use of resources. The discussion of environmental impacts must focus on substantive issues and provide sufficient evidence and analysis to support a FONSI unless a determination to prepare an EIS is made. (vii) Identification of any permits, licenses, approvals, reviews, or applicable special purpose laws. Although the NEPA process does not preclude separate compliance with these other requirements, DTRA/SCC-WMD will integrate applicable environmental review, consultation, and public involvement requirements under special purpose laws and requirements into its NEPA planning and documentation to reduce paperwork and delay. (viii) List of preparers, agencies, and persons consulted. (ix) Signature of the preparer(s) and the Director, J4E. (x) References and appendices. The appendices may include: (A) References that support statements and conclusions in the body of the EA, including methodologies used. Proper citations and, when available, hyperlinks to reference materials should be provided; (B) Evidence of coordination or required consultation with affected Federal, state, tribal, and local officials and copies or a summary of their comments or recommendations and the responses to such comments and recommendations; and (C) A summary of public involvement, including a summary of issues raised at any public hearing or public meeting.

    (3) The analysis of potential environmental impacts (item (c)(2)(vi) above) will include an assessment of the direct, indirect, and cumulative impacts that can reasonably be expected from taking the proposed action or alternatives, and the analysis should address substantive comments raised by interested Federal agencies, non-Federal agencies, and private parties. (i) When direct or indirect impacts exist, the EA must consider cumulative impacts. Cumulative impacts are impacts on the environment resulting from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions. (ii) Actions by Federal agencies, non-Federal agencies, and private parties must be included when considering cumulative impacts.

    (4) DTRA/SCC-WMD must coordinate, as appropriate, preparation of the EA with other agencies (Federal, state, local, or tribal governments) when the action involves resources they manage or protect, and will invite agencies with jurisdiction by law or with special expertise to participate as cooperating agencies. (i) Agencies with jurisdiction by law are those with the authority to grant permits for implementing actions, approve or veto portions of the proposed action, or finance a portion of the proposed action. Federal agencies with jurisdiction by law must be a cooperating agency. Non-federal agencies may be invited. (ii) Agencies with special expertise are those that have the expertise needed to help meet a statutory responsibility, to carry out in part the DTRA/SCC-WMD mission, or in the proposed actions' relationship to the objectives of regional, state, or local land use plans, policies, and controls. Federal and non-federal agencies may be invited.

    (5) DTRA/SCC-WMD must involve the public, to the extent practicable, in preparing EAs. (i) The appropriate level of involvement will vary based on the proposed action. A public scoping meeting, as described in 40 CFR 1501.7, is not required for an EA but is optional. Scoping can be particularly useful when an EA deals with uncertainty or controversy regarding potential conflicts over the use of resources or the environmental impacts of the proposed actions. The scoping process can provide a transparent way to identify environmental issues, focusing the analysis on the most pertinent issues and impacts. (ii) A draft EA should be circulated for 30 days of public comment and, if applicable, with the unsigned proposed FONSI, per paragraph (d)(7) of the FONSI provisions below. The length of comment period may be adjusted based on mission requirements.

    (6) DTRA/SCC-WMD will use the conclusions of an EA to determine whether to issue a FONSI or an NOI to prepare an EIS (found in Appendix D and on the ESOH Team Site at: https://dtra1/j4-8c/j4e/default.aspx).

    (d) Finding of No Significant Impact (FONSI)

    (1) A FONSI is a document that briefly presents the reasons why a proposed action will not have a significant effect on the human environment and for which an EIS therefore will not be prepared. It must include the EA or a summary of it and note any other environmental documents related to it.

    (2) Mitigated FONSIs are appropriate where the J4E and Project/Program Manager, or other decision-maker for the project/program determine that mitigation measures can reduce potentially significant adverse impacts below the level of significance. These mitigation measures may be used to support a FONSI, provided that: (i) The relevant areas of environmental concern are identified in the EA; (ii) The EA supports the Agency's determination that the potential impacts, including the impacts of any mitigation commitments, will be insignificant; and (iii) The Agency has identified mitigation measures that will be sufficient to reduce potential impacts below applicable significance thresholds and has ensured commitments to implement these measures.

    (3) Mitigation that is used to support a mitigated FONSI must be included as a condition of project approval. In these cases, if DTRA/SCC-WMD's decision to act is not otherwise evidenced by a final decision document such as a rule, license, or approval, the J4E and the Project Manager or other decision-maker for the project/program must document the decision in the conclusion of the FONSI. The decision must identify those mitigation measures DTRA/SCC-WMD is adopting and identify any monitoring and enforcement program applicable to such measures (see Section 6: Mitigation and Monitoring).

    (4) A FONSI or Mitigated FONSI must document, in plain writing, the reasons why an action, not otherwise categorically excluded, would not have a significant impact on the human environment. The FONSI documents the basis for the determination that the proposed action would not have significant environmental impacts and the decision to implement the proposed action. The FONSI may be attached to an EA, or the EA and FONSI may be combined into a single document. If the FONSI is attached or combined with the EA, it need not repeat the discussion in the EA. If the FONSI is not attached or combined with the EA, the FONSI must include a summary of the EA and note any other environmental documents related to it. The FONSI must: (i) Briefly describe the proposed action, the purpose and need, and the alternatives considered (including the no action alternative), and assess and document all relevant matters necessary to support the conclusion that the proposed action would not significantly affect the quality of the human environment; (ii) Determine the proposed action's consistency or inconsistency with community planning, and document the basis for the determination; (iii) Present any mitigation measures that are a condition of project approval. The FONSI should also reflect coordination of mitigation commitments (including any applicable monitoring program) with, and consent and commitment from, those entities with the authority to implement specific mitigation measures committed to in the FONSI; and (iv) Reflect compliance with all applicable environmental requirements, including interagency and intergovernmental coordination and consultation, public involvement, and documentation requirements. Findings and determinations required under special purpose laws and requirements, regulations, and orders, if not made in the EA, must be included in the FONSI. (v) If the FONSI is prepared following adoption of all or part of another agency's NEPA document, the FONSI must identify the part(s) of the document being adopted and include documentation of DTRA/SCC-WMD's independent evaluation of the document.

    (5) All FONSIs must include the following approval statement: After careful and thorough consideration of the facts contained herein, the undersigned finds that the proposed Federal action is consistent with existing national environmental policies and objectives as set forth in Section 101 of NEPA and other applicable environmental requirements and will not significantly affect the quality of the human environment.

    APPROVED: DATE:

    (6) Following preparation of the FONSI, the Project/Program Manager reviews and signs the FONSI. Issuance of a FONSI signifies that DTRA/SCC-WMD will not prepare an EIS and has completed the NEPA process for the proposed action. Following the approval of a FONSI, the Project/Program Manager may decide whether to take or approve the proposed action. Mitigation measures that were made as a condition of approval of the FONSI must be incorporated in the decision to implement the action.

    (7) The J0XG in coordination with the Project/Program Manager will publish an NOA (found in Appendix E and on the ESOH Team Site at: https://dtra1/j4-8c/j4e/default.aspx) with local media to open a 30-day public comment period for the final draft EA and unsigned proposed FONSI. For actions with national interest, J0XG shall also publish the NOA in the FR. The length of comment period may be adjusted based on mission requirements.

    (8) After closure of the public comment period, the Project/Program Manager in coordination with the J4E will adjudicate the comments received and update the EA as necessary. The Project/Program Manager in coordination with the J4E will decide to prepare an EIS, or terminate the proposed action.

    (9) Upon completing the adjudication, the final FONSI will be signed by the J4E and Project/Program Manager or other decision-maker for the project/program, and the action may proceed.

    (10) The J0XG will make the final EA and signed FONSI available to the public and post on DTRA/SCC-WMD's public Web site. (i) A copy of the FONSI and EA should be sent to reviewing agencies and organizations or individuals who made substantive comments or specifically requested copies. (ii) When a project involves a resource protected under a special purpose law or requirement, or other directive, the J0XG will send a signed copy of the FONSI and the EA supporting it to the agency(ies) with whom DTRA/SCC-WMD consulted to comply with the applicable law or directive and to any party requesting copies of those documents.

    (e) Environmental Impact Statement (EIS)

    (1) When a proposed action has the potential for significant environmental impact or when an EA does not result in a FONSI, an EIS will be prepared to examine the potential impacts of the proposed action, reasonable alternatives, and measures to mitigate those effects.

    (2) Prior to preparing an EIS, the Project/Program Manager in coordination with J0XG will publish an NOI (Appendix D) in the FR to initiate preparation of the EIS. (i) The NOI includes an overview of the proposed action, any reasonable alternatives being considered (including no action), and known potential environmental impacts associated with the action. If the NOI is also used to satisfy public notice and comment requirements of other environmental requirements in addition to NEPA that are applicable to the proposed action, the NOI should include a statement to that effect with a reference to the applicable laws, regulations, or Executive Orders. (ii) The NOI will also identify a DTRA/SCC-WMD point of contact who can provide additional information about the action and to whom comments should be sent. (iii) There will be a public scoping period of 30 days from the date of publication of the NOI in the FR to allow other interested agencies and the public to provide input and comments. If a scoping meeting is planned and sufficient information is available at the time of the NOI, the NOI should also announce the meeting, including the meeting time and location, and other appropriate information such as availability of a scoping document.

    (3) The Project/Program Manager must host a public EIS scoping meeting to identify the range of actions, alternatives, and impacts to consider for analysis. Scoping is a required part of the EIS process. Scoping is an early and open process for determining the scope of issues to be addressed in the EIS and identifying the significant issues related to a proposed action. The Project/Program Manager shall tailor the scoping processes to match the complexity of the proposal. (i) DTRA/SCC-WMD representatives must include at a minimum the Project/Program Manager, the J4E, and program subject matter experts. The Project/Program Manager will also invite interested members of the public and representatives from cooperating organizations, and may include other participants as necessary. (ii) Scoping serves additional purposes such as identifying those issues that do not require detailed analysis or that have been covered by prior environmental review, setting the temporal and geographic boundaries of the EIS, determining reasonable alternatives, and identifying available technical information. (iii) The Project/Program Manager with assistance from the J4E must take the lead in the scoping process, inviting the participation of potentially affected Federal, state, and local agencies, any potentially affected tribes, and other interested persons (including those who might oppose the proposed action).

    (4) An EIS must include the following components presented in the standard EIS format in accordance with 40 CFR parts 1500-1508: (i) A cover page that includes: (A) A list of the responsible lead and cooperating agencies (identifying the lead agency); (B) The title of the proposed action together with the state(s) and county(ies) where the action is located; (C) The name, address, and telephone number of the responsible DTRA/SCC-WMD official; (D) The designation of the statement as draft, final, or supplement; (E) A one paragraph abstract of the EIS; and (F) For draft EISs, a statement that this EIS is submitted for review pursuant to applicable public law requirements. (ii) An executive summary that adequately and accurately summarizes the EIS. The summary describes the proposed action, stresses the major conclusions, areas of controversy (including issues raised by agencies and the public), and the issues to be resolved (including the choice among alternatives). It also discusses major environmental considerations and how these have been addressed, summarizes the analysis of alternatives, and identifies the agency preferred alternative. It discusses mitigation measures and any monitoring. (iii) A table of contents that lists the chapters and exhibits (including figures, maps, and tables) presented throughout the EIS. It will also list any appendices, acronym list, glossary, references, and index. (iv) A Purpose and Need section that briefly describes the underlying purpose and need for the Federal action. It presents the problem being addressed and describes what DTRA/SCC-WMD is trying to achieve with the proposed action. It provides the parameters for defining a reasonable range of alternatives to be considered. The purpose and need for the proposed action must be clearly explained and stated in terms that are understandable to individuals who are not familiar with DTRA/SCC-WMD activities. Where appropriate, the responsible DTRA/SCC-WMD official should initiate early coordination with cooperating agencies in developing purpose and need. (v) An Alternatives section that includes the proposed action. This section is the heart of the EIS. It presents a comparative analysis of the no action alternative, the proposed action, and other reasonable alternatives to fulfill the purpose and need for the action, to sharply define the issues, and provide a clear basis for choice among alternatives by the approving official. Whether a proposed alternative is reasonable depends, in large part, upon the extent to which it meets the purpose and need for the proposed action. Reasonable alternatives not within the jurisdiction of the lead agency should be considered. DTRA/SCC-WMD may include alternatives proposed by the public or another agency. However, they must meet the basic criteria for any alternative: it must be reasonable, feasible, and achieve the project's purpose. The extent of active participation in the NEPA process by the proponent of the alternative also bears on the extent to which a preferred alternative deserves consideration. Charts, graphs, and figures, if appropriate, may aid in understanding the alternatives. To provide a clear basis of choice among the alternatives, graphic or tabular presentation of the comparative impact is recommended. This section also presents a brief discussion of alternatives that were not considered for detailed analysis (e.g., because they do not meet the purpose and need for the proposed action). The draft EIS must identify the preferred alternative or alternatives, if one or more exists at the time the draft EIS is issued. The final EIS must specifically and individually identify the preferred alternative. Criteria other than those included in the affected environment and environmental consequences sections of the EIS may be applied to identify the preferred alternative. Although CEQ encourages Federal agencies to identify the environmentally-preferred alternatives in the EIS, the CEQ Regulations do not require that discussion until the ROD. (vi) An affected environment section that describes the environmental conditions of the potentially affected geographic area or areas. The discussion of the affected environment should be no longer than is necessary. It should include detailed discussion of only those environmental impact categories affected by the proposed action or any reasonable alternatives to demonstrate the likely impacts; data and analyses should be presented in detail commensurate with the importance of the impact. To ensure that this section emphasizes the important aspects of the impacts on the environment, the discussion should summarize and incorporate by reference information or analysis that is reasonably available to the public. This section may include the following, if appropriate: (A) Location map, vicinity map, project layout plan, and photographs; (B) Existing and planned land uses and zoning, including: industrial and commercial growth characteristics in the affected vicinity; affected residential areas, schools, places of outdoor assemblies of persons, churches, and hospitals; public parks, wildlife and waterfowl refuges; federally listed or proposed candidate, threatened, or endangered species or federally designated or proposed critical habitat; wetlands; national and state forests; floodplains; farmlands; coastal zones, coastal barriers, or coral reefs; recreation areas; wilderness areas; wild and scenic rivers; Native American cultural sites, and historic and archeological sites eligible for or listed on the National Register of Historic Places; (C) State or local jurisdictions affected by the proposed action or any reasonable alternatives; (D) Population estimates and other relevant demographic information for the affected environment, including a census map where appropriate; and (E) Past, present, and reasonably foreseeable future actions, whether Federal or non- Federal, including related or connected actions to show the cumulative effects of these actions on the affected environment. (vii) An environmental consequences section, which forms the scientific and analytical basis for comparing the proposed action, the no action alternative, and other alternatives retained for detailed analysis. (A) The discussion of environmental consequences will include the environmental impacts of the alternatives including the proposed action; any adverse environmental impacts that cannot be avoided should the proposed action or any of the reasonable alternatives be implemented; the relationship between short-term uses of man's environment and the maintenance and enhancement of long-term productivity; any irreversible or irretrievable commitments of resources that would be involved in the proposed action or any reasonable alternatives should they be implemented; and mitigation. It must include considerations of direct, indirect, and cumulative impacts and their significance and possible conflicts with the objectives of Federal, regional, state, tribal, and local land use plans, policies, and controls for the area concerned and other unresolved conflicts. To avoid excessive length, the environmental consequences section may incorporate by reference background data to support the impacts analysis. 40 CFR 1502.22 sets forth requirements for addressing situations in which information for assessing reasonably foreseeable significant adverse impacts is incomplete or unavailable. (B) Specific environmental impact categories must be discussed to the level of detail necessary to support the comparisons of impacts of each alternative retained for detailed analysis, including the no action alternative. The section should include the information required to demonstrate compliance with other applicable requirements and should identify any permits, licenses, other approvals, or reviews that apply to the proposed action or any reasonable alternatives, and indicate any known problems with obtaining them. This section should also provide the status of any interagency or intergovernmental consultation required, for example, under the National Historic Preservation Act, 16 U.S.C. §§ 470-470x-6, the Endangered Species Act, 16 U.S.C. §§ 1531-1544, the Coastal Zone Management Act, 16 U.S.C. §§ 1451-1466, the American Indian Religious Freedom Act, 42 U.S.C. § 1996, Executive Order 13084, Consultation and Coordination with Indian Tribal Governments, 63 Federal Register 27655 (May 14, 1998), the Wild and Scenic Rivers Act, 16 U.S.C. §§ 1271-1287, and the Fish and Wildlife Coordination Act, 16 U.S.C. §§ 661-667d. (viii) An EIS must describe mitigation measures considered or planned to minimize harm from the proposed action and reasonable alternatives. The EIS must discuss mitigation in sufficient detail to disclose that the environmental consequences have been fairly evaluated. Mitigation incorporated into project design must be clearly described in the proposed action and any reasonable alternatives. Environmental impacts resulting from mitigation must be considered in the EIS, when applicable. (A) The following types of mitigation measures should be considered: design and construction actions to avoid or reduce impacts; management actions that reduce impacts during operation of the facility; and replacement, restoration (reuse, conservation, preservation, etc.), and compensation measures. (B) Electronic data collection, tracking, and analysis may be useful in the consideration of appropriate mitigation measures. The DTRA/SCC-WMD ESOH Management System may also be used for tracking and monitoring mitigation commitments. (C) Mitigation and other conditions established in the EIS, or during review of the EIS, and that are committed to in the ROD, must be implemented by DTRA/SCC-WMD or another appropriate entity with authority to implement the identified mitigation measures or other conditions. DTRA/SCC-WMD ensures implementation of such mitigation measures through special conditions, funding agreements, contract specifications, directives, other review or implementation procedures, and other appropriate follow-up actions in accordance with 40 CFR parts 1500-1508. (ix) The EIS must list the preparers of the NEPA document, including the names, and qualifications (e.g., expertise experience, professional disciplines) of DTRA/SCC-WMD staff that were primarily responsible for preparing the EIS or significant background material, and contractors who assisted in preparing the EIS or associated environmental studies. (x) The EIS must contain a list of agencies, organizations, and persons to whom copies of the EIS are sent. This list is included for reference and to demonstrate that the EIS is being circulated, and thus, that the public review process is being followed. (xi) An index that reflects the key terms used throughout the EIS for easy reference. The index must include page numbers for each reference. (xii) An EIS must include appendices, if necessary. This section consists of material that substantiates any analysis that is fundamental to the EIS, but would substantially contribute to the length of the EIS or detract from the document's readability, if included in the body of the EIS. This section should contain information about formal and informal consultation conducted and related agreement documents prepared, pursuant to other special purpose laws and requirements. (xiii) The Final EIS must assess and respond to comments received on the draft EIS. (xiv) If applicable, the EIS may include footnotes. Footnotes include the title, author, date of document, and page(s) relied upon for sources used.

    (5) An EIS may not include any final decisions regarding the Agency/Center's course of action.

    (6) The J4E must file the draft EIS with the United States Environmental Protection Agency (EPA) through the e-NEPA electronic filing system at: http://www.epa.gov/oecaerth/nepa/submiteis/index.html. As part of the draft EIS filing process, the EPA will issue an NOA in the FR to open a 45-day comment period for the public, federally recognized tribes, or other interested Federal, state, and local agencies. This starts the official comment period for the draft EIS. The J0XG shall also publish an NOA (Appendix E) in a local daily newspaper on the same day that EPA's NOA is published. DTRA/SCC-WMD should send a press release to local media and, if the EIS is national in scope, to national media outlets. DTRA/SCC-WMD must notify EPA if it approves an extension of the public comment period so that EPA may provide an update in its FR notice. (i) The draft EIS should be available at local libraries or similar public depositories. Material used in developing or referenced in the draft EIS must be available for review at the appropriate DTRA/SCC-WMD office(s) or at a designated location. Upon request, copies of the draft EIS must be made available to the public without charge to the extent practical or at a reduced charge, which is not more than the actual cost of reproducing copies. The draft EIS may also be placed on the Internet and/or copies may be made available in digital form. (ii) The J0XG should use the following standard language in press releases and notices announcing the draft EIS's availability for comment and any public meetings or hearing(s) associated with the proposed project: DTRA/SCC-WMD encourages all interested parties to provide comments concerning the scope and content of the draft EIS. Comments should be as specific as possible and address the analysis of potential environmental impacts and the adequacy of the proposed action or merits of alternatives and the mitigation being considered. Reviewers should organize their participation so that it is meaningful and makes the agency aware of the reviewer's interests and concerns using quotations and other specific references to the text of the draft EIS and related documents. Matters that could have been raised with specificity during the comment period on the draft EIS may not be considered if they are raised for the first time later in the decision process. This commenting procedure is intended to ensure that substantive comments and concerns are made available to DTRA/SCC-WMD in a timely manner so that DTRA/SCC-WMD has an opportunity to address them. Before including your address, phone number, email address, or other personal identifying information in your comment, be advised that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold from public review your personal identifying information, we cannot guarantee that we will be able to do so.

    (7) DTRA/SCC-WMD should hold public meetings or hearings on the draft EIS, when appropriate. If DTRA/SCC-WMD conducts a public meeting or hearing for the purpose of obtaining public comment on a draft EIS, DTRA/SCC-WMD should ensure that the draft document is available for public review at least 15 days before the event occurs. (i) The Project/Program Manager must request comments on the draft EIS from appropriate Federal, state, and local agencies and from tribes when the impacts may be on a reservation or affect tribal interests. (ii) Draft EISs must be coordinated with the appropriate regional offices of other Federal agencies having jurisdiction by law or special expertise, appropriate state and local agencies including cooperating agencies, affected cities and counties, and others known to have an interest in the action, and appropriate tribal governments when the impacts may affect tribal interests.

    (8) After closure of the comment period, the Project/Program Manager and the J4E will adjudicate the comments received by considering the input or concern and documenting a response, update the EIS as necessary, and complete an ROD (found in Appendix F and on the ESOH Team Site at: https://dtra1/j4-8c/j4e/default.aspx) or terminate the proposed action. (i) DTRA/SCC-WMD must take into consideration all comments received on the draft EIS and comments recorded during public meetings or hearings, and respond to the substantive comments in the final EIS. All substantive comments received on the draft EIS (or summaries where the comments are voluminous) must be attached to the final EIS. Comments must be responded to in one or more of the following ways: (A) Written into the text of the final EIS; (B) Stated in an errata sheet attached to the final EIS; or (C) Included or summarized and responded to in an attachment to the final EIS, and if voluminous, may be compiled in a separate supplemental volume for reference. (ii) DTRA/SCC-WMD may, subject to the conditions set forth below, attach errata sheets to the draft EIS. If the modifications to the draft EIS in response to comments are minor and are confined to factual corrections or explanations of why the comments do not warrant additional agency response, then only the comments, responses, and errata sheets need to be circulated and the draft EIS and errata sheets may be filed as the final EIS as set out in 40 CFR1503.4(c). Use of errata sheets is subject to the condition that the errata sheets: (A) Cite the sources, authorities, or reasons that support the position of DTRA/SCC-WMD; and (B) If appropriate, indicate the circumstances that would trigger agency reappraisal or further response.

    (9) The cover page or summary of the final EIS or a draft EIS with errata sheets in lieu of a final EIS must include the following declaration language below. After careful and thorough consideration of the information contained herein and following consideration of the views of those Federal agencies having jurisdiction by law or special expertise with respect to the environmental impacts described, the undersigned finds that the proposed Federal action is consistent with existing national environmental policies and objectives as set forth in Section 101(a) of the National Environmental Policy Act of 1969.

    (10) Other required environmental findings and conclusions must be included in the summary, if not included in the body or at the end of the EIS.

    (11) The final EIS must be reviewed and approved by the Project/Program Manager and the J4E prior to generating an ROD.

    (12) The J4E will file the final EIS with the EPA through the e-NEPA electronic filing system at: http://www.epa.gov/oecaerth/nepa/submiteis/index.html. The EPA will issue an NOA for the final EIS in the FR. The Project/Program Manager may request that the J0XG also publish a more detailed availability notice in the FR, but the DTRA/SCC-WMD notice cannot be substituted for the EPA FR notice. The final EIS must be sent to: (i) The appropriate regional office of EPA; (ii) Any relevant DoD officials; (iii) Each Federal, state, and local agency, tribe, and private organization that made substantive comments on the draft EIS and to individuals who requested a copy of the final EIS or who made substantive comments on the draft EIS (one copy each); (iv) DOE headquarters for projects having major energy-related consequences (one copy); and (v) The appropriate state-designated single point of contact (or specific agency contacts when states have not designated a single contact point), unless otherwise designated by the governor (adequate number of copies, which varies by state). (vi) Additional copies must be sent to accessible locations to be made available to the general public such as state, metropolitan, and local public libraries to facilitate accessibility. The final EIS, comments received, and supporting documents must be made available to the public without charge to the fullest extent practical or at a reduced charge, which is not more than the actual cost of reproducing copies, at appropriate agency office(s) or at a designated location.

    (13) DTRA/SCC-WMD must wait a minimum of 30 days after the EPA NOA of the final EIS is published in the FR (and at least 90 days after filing of the draft EIS) before making a decision on the proposed action and issuing an ROD. The 30-day period provides time for the decision-maker to consider the final EIS and other pertinent information and make a decision; it is not for receiving public comments unless DTRA/SCC-WMD requests comments on the final EIS. At the conclusion of the 30-day waiting period, the J0 may issue the final decision in an ROD and implementation of the selected action may begin. (i) When DTRA/SCC-WMD is the lead Federal agency, the EPA, upon a showing by another Federal agency of compelling reasons of national policy, may extend prescribed periods up to 30 days, but no longer than 30 days without the permission of DTRA/SCC-WMD. The Project/Program Manager may also extend the waiting period or request the EPA to reduce this period for compelling reasons of national policy. The 90-day waiting period after the NOA of the draft EIS cannot be altered by the EPA. (ii) If DTRA/SCC-WMD unilaterally approves an overall extension of a comment period, the EPA must be notified so that the EPA may provide an update in its FR notice.

    (14) Under certain circumstances, DTRA/SCC-WMD may choose to terminate an EIS. This could occur, for example, when a proponent has decided not to go forward with the action or it is determined to be no longer needed. DTRA/SCC-WMD may also terminate an EIS and revert to an EA if the environmental analysis shows that there would not be significant impacts from the project. DTRA/SCC-WMD will provide notice of the determination to no longer conduct an EIS that is issued in a manner comparable to the publication and distribution used for the NOI to prepare the EIS. The notice should cite the date of the original NOI to prepare an EIS and state the reasons why DTRA/SCC-WMD has chosen to terminate the EIS.

    (f) Record of Decision (ROD)

    (1) The ROD (Appendix F) will state DTRA/SCC-WMD's final decision on which action will be taken. The ROD may be prepared after the time periods outlined in the EIS section above. The Project/Program Manager and the J4E must provide concurrence on the ROD before submitting to the J0 for approval. Supplements to final EISs may be necessary (see Section (7)(b) Supplemental EAs/EISs) and must be reviewed and approved in the same manner as the original document, and a new draft ROD should be prepared, circulated, and approved. (i) DTRA/SCC-WMD may select any alternative within the range of alternatives analyzed in the final EIS. The selected alternative may be an alternative other than the agency's preferred alternative or the environmentally-preferred alternative. The selected action may not be implemented until the J0 has approved and signed the ROD. (ii) If DTRA/SCC-WMD selects an alternative other than the preferred alternative in the final EIS that involves special purpose laws and requirements, such as those related to Section 4(f) land, federally listed endangered species, wetlands, or historic sites, the Agency must first complete any required permit, evaluation, consultation, or other approval requirement prior to taking the action.

    (2) DTRA/SCC-WMD must provide public notice of availability of the ROD through appropriate means as required by 40 CFR 1506.6(b). Such means may include publication in the FR, other media, and on the Internet, although publication in the FR is only required for actions with effects of national concern.

    (3) The ROD must: (i) Present DTRA/SCC-WMD's decision on the proposed action, and identify and discuss all factors, including any essential considerations of national policy, that were balanced by the Agency in making its decision and state how those considerations entered into the decision; (ii) Identify all alternatives DTRA/SCC-WMD considered and which alternative(s) is/are considered to be environmentally-preferable. DTRA/SCC-WMD may discuss preferences among alternatives based on relevant factors including economic and technical considerations, and agency statutory missions; (iii) Identify any mitigation measure(s) committed to as part of the decision and summarize any applicable mitigation monitoring and enforcement program. This must include any mitigation measure that was committed to as a condition of the approval of the final EIS; (iv) State whether all practicable means to avoid or minimize environmental harm from the selected alternatives have been adopted, and if not, why; and (v) Include any findings required by Executive Order, regulation, or special purpose law or requirement (e.g., wetlands, Section 4(f), etc.).

    (4) As necessary, the ROD can be used to clarify and respond to issues raised on the final EIS when those issues do not require supplementation of the final EIS.

    (5) If the ROD is prepared following adoption of all or part of another agency's NEPA document (see Section (7)(c) Adoption of EAs/EISs), the ROD must incorporate by reference the part(s) of the document being adopted and include documentation of DTRA/SCC-WMD's independent evaluation of the document.

    (6) The ROD must be signed by the J0 or delegated authority and posted with the EIS on the DTRA/SCC-WMD public Web site by the J0XG.

    (7) The action must proceed no less than 30 days after the EPA has published the NOA for the final EIS (see paragraph (5)(e)(13)).

    6. Mitigation and Monitoring

    (a) DTRA/SCC-WMD must indicate whether mitigation measures will be implemented for the action selected in either a FONSI or ROD, the commitments the Agency/Center considered and selected, and who will be responsible for implementing, funding, and monitoring the mitigation measures.

    (b) If the J4E and the Project Manager or other decision-maker for the project/program determine that a mitigation measure stipulated in a FONSI has not been implemented or the implemented mitigation is failing to mitigate environmental impacts as predicted, and as a result a significant impact may occur, the J4E and the Project Manager or other decision-maker for the project/program must initiate the EIS process by issuing an NOI to prepare an EIS if there remains discretionary DTRA/SCC-WMD action to be taken related to the project.

    (c) When possible, the Project/Program Manager should include the cost of mitigation as a line item in the budget for a proposed project/program. DTRA/SCC-WMD ensures implementation of such mitigation measures through memorandums of agreement, funding agreements, contract specifications, directives, other review or implementation procedures, and other appropriate follow-up actions.

    (d) DTRA/SCC-WMD may “mitigate to insignificance” potentially significant environmental impacts found during preparation of an EA instead of preparing an EIS. The FONSI will include these mitigation measures, which must be implemented simultaneously with the project/program action (see Sections 5(d)(i)-(iii)).

    (e) Mitigation includes: (1) Avoiding the impact altogether by not taking a certain action or parts of an action. (2) Minimizing impacts by limiting the degree or magnitude of the action and its implementation. (3) Rectifying the impact by repairing, rehabilitating, or restoring the affected environment. (4) Reducing or eliminating the impact over time by preservation and maintenance operation during the life of the action. (5) Compensating for the impact by replacing or providing substitute resources or environments.

    7. Subsequent Analyses (a) Tiering and Programmatic Review

    (1) A programmatic review may assist decision-makers and the public in understanding the environmental impact from proposed broad federal actions and activities. A programmatic EIS or EA may be prepared to cover: (i) A broad group of related actions; or (ii) A program, policy, plan, system, or national level proposal that may later lead to individual actions, requiring subsequent NEPA analysis.

    (2) A programmatic document is useful in analyzing the cumulative impacts of a group of related actions and when the proposed actions are adequately analyzed can serve as the NEPA review for those actions. Programmatic documents may also be useful in providing the basis for subsequent project-level specific environmental review. A programmatic EIS or EA may contain a broader, less specific, analysis than is done for a specific proposed project. If a programmatic EIS or EA is prepared, DTRA/SCC-WMD will determine whether project-specific EISs or EAs are needed for individual actions. Broad Federal actions analyzed in a programmatic EIS or EA may be evaluated geographically, generically, or by stage of technological development.

    (3) The use of a programmatic EIS or EA, and subsequent preparation of a project-specific EIS or EA is referred to as “tiering” the environmental review. Tiering can also be used to sequence environmental documents from the early stage of a proposed action (e.g., need for the action and site selection) to a subsequent stage (e.g., proposed construction) to help focus on issues that are ripe for decision and exclude from consideration issues not yet ripe or already decided. When this approach is used, DTRA/SCC-WMD must ensure that the proposed action is not being segmented by describing the independent utility of each stage. Programmatic and tiered EISs and EAs are subject to the same preparation and processing requirements as other EISs and EAs.

    (4) When a programmatic EIS or EA has been prepared, any subsequent EIS or EA for proposed projects within the scope of the programmatic document only needs to incorporate it by reference by summarizing the issues discussed in the programmatic document, providing access to the programmatic EIS or EA, and concentrating the subsequent project-specific EIS or EA on site-specific impacts not covered by the programmatic document. The project-specific document must state how to obtain a copy of the earlier programmatic document (i.e., a Web page or contact person/office).

    (b) Supplemental EAs/EISs

    (1) Project/Program Managers must prepare a supplemental EA, draft EIS, or final EIS if either of the following occurs: (i) There are substantial changes to the proposed action that are relevant to environmental concerns; or (ii) There are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts.

    (2) Significant information is information that paints a dramatically different picture of impacts compared to the description of impacts in the EA or EIS. DTRA/SCC-WMD may also prepare supplements when the purposes of NEPA will be furthered by doing so.

    (3) Supplemental documents must be prepared following the same general process as the original EA or EIS addressing the new circumstances, information, or actions and incorporating by reference and summary the original EA or EIS. No new scoping is required for a supplemental EIS, but may be conducted at the discretion of the Project/Program Manager or the Director, J4E.

    (4) When a supplemental EA or EIS is completed, a new FONSI or ROD must be issued and made available to the public.

    (c) Adoption of EAs/EISs

    (1) DTRA/SCC-WMD may adopt in whole or in part, another Federal agency's draft or final EA, the EA portion of another agency's EA/FONSI, or EIS in accordance with 40 CFR 1506.3 and CEQ Guidance, “Improving the Process for Preparing Efficient and Timely Environmental Reviews under the National Environmental Policy Act,” March 6, 2012, where DTRA/SCC-WMD's proposed action is substantially the same as the action described in the existing EA or EIS. When another agency's NEPA document does not adequately address DTRA/SCC-WMD's proposed action or meet the applicable standards in the CEQ Regulations and these implementing procedures, then DTRA/SCC-WMD cannot adopt the EA or EIS and should consider which portions of that EA or EIS can be incorporated by reference.

    (2) The Project/Program Manager and J4E will independently review the EA or EIS and determine whether it is current, satisfies the requirements of NEPA, and covers the proposed action. In adopting all or part of another agency's NEPA document, DTRA/SCC-WMD takes full responsibility for the scope and content that addresses the relevant DTRA/SCC-WMD action(s).

    (3) If the actions covered by the original NEPA analysis and the DTRA/SCC-WMD proposed action are substantially the same, DTRA/SCC-WMD may reissue the EA or EIS as a final document and prepare its own FONSI or ROD. The EA or EIS will be recirculated and a public comment period will be provided per Section 5(e) above. When DTRA/SCC-WMD adopts an EA or EIS where it has acted as a cooperating agency and its comments and suggestions have been satisfied by the lead agency in the original document, then coordination with the public is not required.

    8. Actions on Host Installations/Actions Abroad (a) Actions on Host Installations

    DTRA/SCC-WMD must comply with the host installation NEPA implementing regulations, procedures, and guidance in addition to those set forth in this guide, and all environmental compliance actions must be coordinated with the appropriate host installation point of contact. Equivalent host installation documentation may be used to satisfy DTRA/SCC-WMD documentation requirements when signed and approved by DTRA/SCC-WMD and maintained in its administrative record.

    (b) Actions Occurring Abroad

    (1) Executive Order 12114 is based on the authority vested in the President by the Constitution and the laws of the United States. The objective of the Executive Order is to further foreign policy and national security interests while at the same time taking into consideration important environmental concerns. DTRA/SCC-WMD acts with care in the global commons because the stewardship of these areas is shared by all the nations of the world. DTRA/SCC-WMD will take account of environmental considerations when it acts in the global commons in accordance with these procedures.

    (2) DTRA/SCC-WMD also acts with care within the jurisdiction of a foreign nation. Treaty obligations and the sovereignty of other nations must be respected, and restraint must be exercised in applying United States laws within foreign nations unless the Congress has expressly provided otherwise. DTRA/SCC-WMD will take account of environmental considerations in accordance with these procedures when it acts in a foreign nation.

    (3) Foreign policy considerations require coordination with the Department of State on communications with foreign governments concerning environmental agreements and other formal arrangements with foreign governments concerning environmental matters. Informal working-level communications and arrangements are not included in this coordination requirement. Consultation with the Department of State also is required in connection with the utilization of additional exemptions from these procedures.

    (4) Executive Order 12114, implemented by these procedures, prescribes the exclusive and complete procedural measures and other actions to be taken by DTRA/SCC-WMD to further the purpose of the National Environmental Policy Act with respect to the environment outside the United States. As such, actions with potential for significant environmental impact occurring abroad or in the global commons outside the jurisdiction of any nation (e.g., the ocean or Antarctica) are subject to the environmental analysis procedures set forth in this Guide with the exception of hosting public meetings. Project/Program Managers may choose to host public meetings in consideration of the following factors: (i) Foreign relations sensitivities. (ii) Whether the hearings would be an infringement or create the appearance of infringement on the sovereign responsibilities of another government. (iii) Requirements of domestic and foreign governmental confidentiality. (iv) Requirements of national security. (v) Whether meaningful information could be obtained through hearings; (vi) Time considerations. (vii) Requirements for commercial confidentiality.

    (5) Consideration will be given to whether any foreign government should be informed of the availability of environmental documents. Communications with foreign governments concerning environmental agreements and other formal arrangements with foreign governments concerning environmental matters must be coordinated by the J0XG with the Department of State through the Assistant Secretary of Defense (International Security Affairs).

    9. Classified Actions

    (a) Classification of an action for national security does not relieve DTRA/SCC-WMD from the requirements of NEPA. DTRA/SCC-WMD will prepare, safeguard, and disseminate NEPA documents in accordance with DoD requirements for classified information.

    (b) Classified information in NEPA documents will be written in a separate appendix from unclassified information so that the unclassified portions of the documents can be made available to the public.

    (c) When classified information is an integral part of the analysis so that a meaningful unclassified NEPA analysis cannot be produced, the Project/Program Manager in coordination with the J4E will form a team to review the classified NEPA analysis. This team will include environmental professionals and subject matter experts who will ensure the consideration of environmental effects is consistent with the intent of NEPA, including public participation requirements for unclassified portions.

    10. Administrative Record

    (a) The J4E will maintain an administrative record for each environmental analysis performed and an administrative record to support these implementing procedures.

    (b) The administrative record for a proposed action must be retained for 7 years after completing the action, unless the action involves controversy concerning environmental effects or is of a nature that warrants keeping it longer as determined by the J4E.

    (c) The administrative records maintained will include, but are not limited to: (1) All supporting documentation used to generate DTRA/SCC-WMD's NEPA implementing procedures and CATEXs. (2) All supporting documentation and information used to make a decision for Agency actions with potential for significant environmental impact. (3) Maps and other documents relevant to developing an EA or EIS. (4) Formal communication by a consulting, coordinating, or cooperating agency. (5) Studies and inventories of affected environmental resources. (6) Correspondence with regulatory agencies, private citizens, tribes, State or local governments, and other individuals and agencies contacted during public involvement.

    11. Glossary (a) Abbreviations and Acronyms CATEX Categorical Exclusion CEQ Council on Environmental Quality DoD Department of Defense DTRA/SCC-WMD Defense Threat Reduction Agency and United States Strategic Command Center for Combating Weapons of Mass Destruction EA Environmental Assessment EIS Environmental Impact Statement EPA Environmental Protection Agency ESOH Environment, Safety, and Occupational Health FIRS Federal Information Relay Service FONSI Finding of No Significant Impact FR Federal Register J0 Director, DTRA/SCC-WMD J0GC Office of the General Counsel J0XG Governmental and Public Affairs Office J4/8C Acquisition, Finance, and Logistics Directorate J4E Environment, Safety, and Occupational Health Department JDIR Joint Director NEPA National Environmental Policy Act NOA Notice of Availability NOI Notice of Intent REC Record of Environmental Consideration ROD Record of Decision TDD telecommunication devices for the deaf (b) Definitions

    Unless otherwise noted, these terms and their definitions are for the purpose of this NEPA Procedures Guide. The definitions in 40 CFR parts 1500-1508 control in the event of any inconsistency or difference.

    CATEX. A CATEX is defined at 40 CFR 1508.4 as a category of actions which do not individually or cumulatively have a significant effect on the human environment and which have been found to have no such effect in Federal agency NEPA implementing procedures and, therefore, neither an EA nor an EIS is required. This Guide provides for extraordinary circumstances in which an action that is normally categorically excluded may have a significant effect and therefore merit further analysis in an EA or EIS.

    Cooperating agency. A cooperating agency, defined at 40 CFR 1508.5, is any Federal agency or State, tribal, or local governmental entity which has jurisdiction by law or special expertise with respect to any environmental impact involved in a proposed action or a reasonable alternative. The selection and responsibilities of a cooperating agency are described at 40 CFR 1501.6.

    EA. An EA, defined at 40 CFR 1508.9, is a concise public document for which a Federal agency is responsible that serves to: (1) Briefly provide sufficient evidence and analysis for determining whether to prepare an EIS or a FONSI; and (2) aid an agency's compliance with NEPA when no environmental impact is necessary. An EA includes an evaluation of whether a project's potential environmental impacts may be significant. Includes an evaluation of the No Action Alternative and other alternatives to the proposed project, and results in either a FONSI or an NOI.

    EIS. An EIS, defined at 40 CFR 1508.11, is a detailed written evaluation of the potential environmental impacts and socioeconomic impacts of a proposed action (project), including an evaluation of the No Action Alternative and other alternatives to the proposed project. The EIS identifies mitigation measures needed to address adverse environmental impacts.

    Environmental planning. The process of identifying and considering environmental factors that impact on, or are impacted by, planned DoD activities and operations.

    FONSI. A FONSI, defined at 40 CFR 1508.13, is a document briefly presenting the reasons why the proposed action, based on the EA findings, will not have a significant effect on the human environment and therefore an EIS is not required.

    Impact. Any change to the environment wholly or partially resulting from an organization's activities, products, or services. Impact is synonymous with effect as defined at 40 CFR 1508.7 and 8.

    NEPA. The National Environmental Policy Act (NEPA) [42 U.S.C. 4321 et seq.] establishes national environmental policy and goals for the protection, maintenance, and enhancement of the environment and provides a process for implementing these goals within Federal agencies. NEPA also established the Council on Environmental Quality.

    NOA. A notice of availability is a document notifying the public and other government agencies that an EA or an EIS is available for review.

    NOI. A notice of intent, as defined at 40 CFR 1508.22, is a notice that an EIS will be prepared and considered. This notice includes a description of the proposed action and possible alternatives, a description of the agency's proposed scoping process, and the name and address of an agency representative who can answer questions about the proposed action and the EIS.

    Proponent. The organization that exercises primary management responsibility for a proposed action or activity.

    REC. Document stating that the proposed action (project) does not require further NEPA documentation.

    Appendix A: The NEPA Process EN05MY16.024 Appendix B: Categorical Exclusions (CATEXS)

    This Appendix includes categorical exclusions (CATEXs) and extraordinary circumstances for DTRA/SCC-WMD activities.

    Actions categorically excluded in the absence of extraordinary circumstances are:

    1. Normal personnel, fiscal or budgeting, and administrative activities and decisions, including those involving military and civilian personnel (for example, recruiting, processing, data collection, conducting surveys, payroll, and record keeping).

    2. Preparing, revising, or adopting regulations, instructions, directives, or guidance documents, including those that implement without substantial change to the regulations, instructions, directives, or guidance documents from higher headquarters or other Federal agencies.

    3. Decreases, increases, relocation, and realignment of personnel into existing Federally-owned or commercially-leased space that does not involve a substantial change affecting the supporting infrastructure or use of space (e.g., no increase in traffic beyond the capacity of the supporting network to accommodate such an increase).

    4. Routine procurement of goods and services conducted in accordance with applicable procurement regulations and green purchasing requirements including office supplies, equipment, mobile assets, and utility services for routine administration, operation, and maintenance.

    5. Administrative study efforts involving no commitment of resources other than personnel and funding allocations. If any of these study efforts result in proposals for further action, those proposals must be considered separately by an appropriate CATEX or NEPA analysis. Examples include, but are not limited to: Studies and surveys conducted to further administrative, personnel-related, architectural, engineering, safety, security, siting, and facility audit activities.

    6. Studies, monitoring, data and sample collection, and information gathering that involve no permanent physical change to the environment. If any of these activities result in proposals for further action, those proposals must be considered by an appropriate CATEX or NEPA analysis. Examples include, but are not limited to: Surveys for threatened and endangered species, wildlife and wildlife habitat, historic properties, and archeological sites; wetland delineations; minimal water, air, waste; material and soil sampling (e.g., grab samples). Environmental Baseline Surveys or Environmental Condition of Property Surveys. Topographical surveying and mapping that does not require cutting and/or removal of trees.

    7. Sampling, borehole drilling, well drilling and installation, analytical testing, site preparation, and minimally intrusive physical testing. These activities could involve minor clearing, grubbing, or movement of heavy equipment such as drill rigs. If any of these actions result in proposals for further actions, those proposals must be considered by an appropriate CATEX or NEPA analysis. Examples include, but are not limited to: Sampling for asbestos-containing materials, polychlorinated biphenyls, and lead-based paint. Topographical surveys and surveys for unexploded ordnance. Minimally-intrusive (no more than 25 square feet of disturbed surface area) geological, geophysical surveys, geo-technical activities, and seismic studies. Minimally-intrusive sampling to determine if hazardous wastes, contaminants, pollutants, or special hazards are present. Ground water monitoring wells, subsurface soil sampling, and soil borings.

    8. Immediate responses to the release or discharge of oil or hazardous materials in accordance with an approved Spill Prevention, Control and Countermeasure Plan or Spill Contingency Plan, or that is otherwise consistent with the requirements of the EPA National Contingency Plan.

    9. Temporary use of transportable power generators or operational support equipment when located in a previously disturbed area and when operated in compliance with applicable regulatory requirements.

    10. Routine movement, handling, use, and distribution of materials, including hazardous materials or wastes that are moved, handled, or distributed in accordance with applicable regulations, such as Resource Conservation and Recovery Act, National Oil and Hazardous Substance Pollution Contingency Plan, Occupational Safety and Health Act, and Hazardous Materials Transportation Act.

    11. Routine movement of mobile test assets (such as instrument trailers, cameras, portable antennas, etc.) for routine test and evaluation, for repair, overhaul, or maintenance where no new support facilities are required.

    12. Activities and operations to be conducted in an existing non-historic structure which are within the scope of and are compatible with the present functional use of the building, will not result in a substantial increase in waste discharged to the environment, will not result in substantially different waste discharges from current or previous activities, and emissions will remain within established permit limits, if any.

    13. Acquisition, installation, modification, routine repair and replacement, and operation of utility (e.g., water, sewer, and electrical) and communication systems, mobile antennas, data processing cable, and similar electronic equipment that use existing rights-of-way, easements, distribution systems, facilities, or previously disturbed land.

    14. Acquisition, installation, or minor relocation, operation and maintenance or evaluation of physical security devices or controls to protect human or animal life and to enhance the physical security of existing critical assets in compliance with applicable Federal, tribal, state, and local requirements to protect the environment. Examples include, but are not limited to: Motion detection systems. Lighting. Remote video surveillance systems. Access controls. Physical barriers, fences, grating, on or adjacent to existing facilities.

    15. Installation and maintenance of archaeological, historical, and endangered or threatened species avoidance markers, fencing, and signs.

    16. Road or trail construction and repair on existing rights-of-ways or in previously disturbed areas which do not result in a change in functional use. Runoff, erosion, and sedimentation controlled through implementation of best management practices.

    17. Routine repair and maintenance of buildings, grounds, and other facilities and equipment which do not result in a change in functional use or a significant impact on a historically significant element or setting. Examples include, but are not limited to: Repair of roofs, doors, windows, or fixtures, localized pest management, and minor erosion control measures.

    18. New construction or equipment installation or alterations (interior and exterior) to or construction of an addition to an existing structure that is similar to existing land use if the area to be disturbed has no more than five cumulative acres of new surface disturbance.

    19. Demolition of non-historic buildings, structures, or other improvements and repairs that result in disposal of debris there-from, or removal of a part thereof for disposal, in accordance with applicable regulations, including those regulations applying to removal of asbestos containing materials, polychlorinated biphenyls, lead-based paint, and other special hazard items.

    20. Research, testing, and operations conducted at existing facilities (including contractor-operated laboratories and plants) and in compliance with all applicable safety, environmental, and natural conservation laws (because of these controls, these types of activities have little potential for significant environmental impacts). Examples include, but are not limited to: Nuclear weapons effects simulators, weapons performance measurement, wind tunnels, high energy lasers, remote sensing instruments, vacuum chambers, high altitude simulator facilities, and propellant testing facilities.

    21. Routine installation and use of radars, cameras, communications equipment, and other essentially similar facilities and equipment within a launch facility, mobile platform, military installation, training area, or previously disturbed area that conform to current American National Standards Institute/Institute of Electrical and Electronics Engineers guidelines, Federal Communications Commission Radio Frequency Exposure Limits 1.1310, and Electric and Magnetic Fields Exposure Directive 99/519/EC for maximum permissible exposure to electromagnetic fields.

    22. Routine law and order activities performed by military personnel, military police, or other security personnel, including physical plant protection and security.

    Extraordinary circumstances that preclude the use of a CATEX are:

    1. A reasonable likelihood of significant impact on public health or safety.

    2. A reasonable likelihood of significant environmental effects (direct, indirect, and cumulative).

    3. A reasonable likelihood of involving effects on the environment that involve risks that are highly uncertain, unique, or are scientifically controversial.

    4. A reasonable likelihood of violating any Executive Order, or Federal, state, or local law or requirements imposed for the protection of the environment.

    5. A reasonable likelihood of adversely affecting “environmentally sensitive” resources, unless the impact has been resolved through another environmental process (e.g., Coastal Zone Management Act, National Historic Preservation Act, Clean Water Act, etc.) a CATEX cannot be used. Environmentally sensitive resources include: a. Proposed federally listed, threatened, or endangered species or their designated critical habitats. b. Properties listed or eligible for listing on the National Register of Historic Places. c. Areas having special designation or recognition such as prime or unique agricultural lands; coastal zones; designated wilderness or wilderness study areas; wild and scenic rivers; National Historic Landmarks (designated by the Secretary of the Interior); floodplains; wetlands; sole source aquifers (potential sources of drinking water); National Wildlife Refuges; National Parks; areas of critical environmental concern; or other areas of high environmental sensitivity. d. Cultural, scientific or historic resources.

    6. A reasonable likelihood of dividing or disrupting an established community or planned development, or is inconsistent with existing community goals or plans.

    7. A reasonable likelihood of causing an increase in surface transportation congestion that will decrease the level of service below acceptable levels.

    8. A reasonable likelihood of adversely impacting air quality or violating federal, state, local or tribal air quality standards under the Clean Air Act Amendments of 1990.

    9. A reasonable likelihood of adversely impacting water quality, sole source aquifers, public water supply systems or state, local, or tribal water quality standards established under the Clean Water Act and the Safe Drinking Water Act.

    10. A reasonable likelihood of effects on the quality of the environment that are highly controversial on environmental grounds. The term “controversial” means a substantial dispute exists as to the size, nature, or effect of the proposed action rather than to the existence of opposition to a proposed action, the effect of which is relatively undisputed.

    11. A reasonable likelihood of a disproportionately high and adverse effect on low income or minority populations (see Executive Order 12898).

    12. Limit access to and ceremonial use of Indian sacred sites on Federal lands by Indian religious practitioners or significantly adversely affect the physical integrity of such sacred sites (see Executive Order 13007).

    13. Contribute to the introduction, continued existence, or spread of noxious weeds or non-native invasive species known to occur in the area or actions that may promote the introduction, growth, or expansion of the range of such species (Federal Noxious Weed Control Act and Executive Order 13112).

    14. A greater scope or size than is normal for this category of action.

    15. A reasonable likelihood of degrading already existing poor environmental conditions. Also, initiation of a degrading influence, activity, or effect in areas not already significantly modified from their natural condition.

    16. A precedent (or makes decisions in principle) for future or subsequent actions that have a reasonable likelihood of having a future significant effect.

    17. Introduction or employment of unproven technology.

    18. A reasonable likelihood of (i) releases of petroleum, oils, and lubricants (except from a properly functioning engine or vehicle) or reportable releases of hazardous or toxic substances as specified in 40 CFR part 302, Designation, Reportable Quantities, and Notification); (ii) application of pesticides and herbicides; (iii) or where the proposed action results in the requirement to develop or amend a Spill Prevention, Control, or Countermeasures Plan.

    Appendix C: Record of Environmental Consideration (REC) DEFENSE THREAT REDUCTION AGENCY/UNITED STATES STRATEGIC COMMAND CENTER FOR COMBATING WEAPONS OF MASS DESTRUCTION (DTRA/SCC-WMD) RECORD OF ENVIRONMENTAL CONSIDERATION DATE OF REQUEST: PROJECT/PROGRAM MANAGER: PHONE NUMBER: EMAIL: ORGANIZATION ADDRESS: PROJECT TITLE: PROPOSED PROJECT START DATE: END DATE: A. PURPOSE AND NEED FOR ACTION: B. PROJECT SPECIFIC DETAILS (PROPOSED LOCATION, etc.): C: LIST OF PREVIOUS NEPA DOCUMENTATION (EA/EIS) FOR THIS OR SIMILAR ACTIVITY PRINT NAME SIGNED [Name of Project/Program Manager] DATE J4E ENVIRONMENTAL REVIEW ACTION NOT SUBJECT TO NEPA REQUIREMENTS PROPOSED ACTION QUALIFIES FOR CATEGORICAL EXCLUSION (CATEX) # PROPOSED ACTION DOES NOT INVOLVE EXTRAORDINARY CIRCUMSTANCES THAT MERIT REVIEW IN AN EA OR EIS (IDENTIFY ANY ENVIRONMENTAL PROCESS THAT HAS RESOLVED AN IMPACT ARISING FROM AN EXTRAORDINARY CIRCUMSTANCE) PROPOSED ACTION IS COVERED UNDER EXISTING ENVIRONMENTAL DOCUMENTATION (SPECIFY DOCUMENT AND SECTIONS) FURTHER ANALYSIS IS REQUIRED REMARKS: PRINT NAME SIGNED DATE Director, Environment, Safety, and Occupational Health Department DTRA/SCC-WMD 8725 John J. Kingman Rd. Ft. Belvoir, VA 22060 Appendix D: Notice of Intent (NOI) DEFENSE THREAT REDUCTION AGENCY/UNITED STATES STRATEGIC COMMAND CENTER FOR COMBATING WEAPONS OF MASS DESTRUCTION (DTRA/SCC-WMD) [Name of Office; Location; Short Title or Subject of the Notice] ACTION: Notice of intent to prepare an environmental impact statement. SUMMARY: [Briefly describe the nature and scope of the proposed action. Do not put legal citations or background information in the SUMMARY section; these belong in the SUPPLEMENTARY INFORMATION section.] DATES: Comments concerning the scope of the analysis must be received by [insert date 30 days from date of publication in the Federal Register].

    [Do not alter the text between the brackets. The brackets alert the scheduling office at the Office of the Federal Register to compute the date and enter it prior to publication.]

    The draft environmental impact statement is expected [insert estimated month and year] and the final environmental impact statement is expected [insert estimated month and year.]

    ADDRESS: Send written comments to [insert address]. Comments may also be sent via email to [insert email address], or via facsimile to [insert fax number]. [In this section, you also may put additional addresses, locations of meetings, etc. Do not put more than four addresses in this section. If there are more than four pertinent addresses, create a heading for them under the SUPLEMENTARY INFORMATION section of the notice.] It is important that reviewers provide their comments at such times and in such a way that they are useful to the Agency's preparation of the EIS. Therefore, comments should be provided prior to the close of the comment period and should clearly articulate the reviewer's concerns and contentions. Comments received in response to this solicitation, including names and addresses of those who comment, will be part of the public record for this proposed action. Comments submitted anonymously will be accepted and considered. FOR FURTHER INFORMATION CONTACT: [insert name(s) and contact information you wish to use, such as telephone number and email address]. Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8 a.m. and 8 p.m. Eastern Time, Monday through Friday. SUPPLEMENTARY INFORMATION: Purpose and Need for Action

    [Describe why DTRA/SCC-WMD is proposing the action: Why here? Why now?]

    Proposed Action

    [Describe the proposed action. Consider who, what, how, where, and when.]

    Possible Alternatives

    [Include only if any have been identified (delete heading if not used or request input on any alternatives considered reasonable—including technically and economically feasible—that will meet the purpose and need).]

    Lead and Cooperating Agencies

    [Include only if there are other agencies to list as joint lead agencies and/or cooperating agencies (delete heading if not used).]

    Responsible Official

    [Provide the title and address of the official(s) responsible for the proposed action. Use of the responsible official's name is optional.]

    Nature of Decision To Be Made

    [Describe the framework or scope of the decision(s) to be made by the responsible official(s).]

    Preliminary Issues

    [Include only if any have been identified (delete heading if not used). To the extent practicable, resolve internal issues before proposing the action.]

    Permits or Licenses Required

    [Include only if any have been identified (delete heading if not used).]

    Addresses

    [Include only if all addresses could not be included in the SUMMARY (delete heading if not used).]

    Scoping Process

    This notice of intent initiates the scoping process, which guides the development of the environmental impact statement. [Describe any other public comment opportunities, including whether, when, and where any scoping meetings will be held. Describe any additional information related to the scoping process and nature of comments being sought.]

    [Name] Date Chief, Governmental and Public Affairs Office DTRA/SCC-WMD Appendix E: Notice of Availability (NOA) DEFENSE THREAT REDUCTION AGENCY/UNITED STATES STRATEGIC COMMAND CENTER FOR COMBATING WEAPONS OF MASS DESTRUCTION (DTRA/SCC-WMD) AGENCY: [Office name], DTRA/SCC-WMD, Department of Defense ACTION: Notice of Availability of the [Draft EA, Final EA and FONSI, Draft EIS, Final EIS, or ROD] SUMMARY: DTRA/SCC-WMD announces the availability of the [insert type of NEPA document] for a proposed project in [insert location]. DATES: [As applicable, list dates of public scoping meetings, deadlines for comments, etc.] ADDRESSES: [As applicable, list addresses for public scoping meetings, availability of the document, etc.] The [insert Draft EIS, Final EIS, ROD as appropriate] is also available at [insert project Web site.] FOR FURTHER INFORMATION CONTACT: [insert name(s) and contact information you wish to use, such as telephone number and email address.] SUPPLEMENTARY INFORMATION: Effective [Date], the DTRA/SCC-WMD assumed environmental responsibilities for this project. DTRA/SCC-WMD as the agency responsible for the National Environmental Policy Act (NEPA) review has, in cooperation with [insert cooperating agencies], prepared a [insert type of NEPA document] on a proposal for [insert brief description of action] in [location]. [Provide additional details regarding the proposed action, description of the proposed alternatives, length of project, and any anticipated federal approvals, such as permits]. Issued on: [Date signed] [Name] Chief, Governmental and Public Affairs Office DTRA/SCC-WMD Appendix F: Record of Decision (ROD) RECORD OF DECISION [Project Name] DEFENSE THREAT REDUCTION AGENCY/UNITED STATES STRATEGIC COMMAND CENTER FOR COMBATING WEAPONS OF MASS DESTRUCTION (DTRA/SCC-WMD) [Project Location] [County, State] Decision

    Based on my review of the Environmental Impact Statement (EIS), I have decided to implement Alternative [X], which [insert description of selected alternative. Include any permits, licenses, grants, or authorizations needed to implement the decision. Also include any mitigation and monitoring actions related to the decision.]

    Background

    [Provide a brief description of the purpose and need for action.]

    Decision Rationale

    [Describe the reasons for the decision. Specifically, discuss the following:

    How the selected action/alternative best meets the purpose and need and why other alternatives were not selected.

    How significant issues and environmental impacts were considered and taken into account.

    Any factors other than environmental effects considered in making the decision.

    Discuss how the above factors influenced the decision (are some more important than others?)

    State whether all practical means to avoid or minimize environmental harm from the selected alternative have been adopted and if not, why not.]

    The [Project Name] EIS documents the analysis and conclusions upon which this decision is based.

    Public Involvement

    A notice of intent to prepare an EIS was published in the Federal Register on [date] ([Cite Federal Register volume and beginning page number (i.e. 73 FR 43084]). People were invited to review and comment on the proposal through [insert public notice methods and dates such as mailings, news releases, phone calls, etc.]. The EIS lists agencies, organizations, and people who received copies on page [X].

    The following issues were identified from scoping comments and were used to determine the scope of the analysis. [Briefly describe the significant issues used in the analysis]. A full description of issues significant to the proposed action appears in the EIS on page [X].

    A draft EIS was published for review and comment on [date of publication of EPA's notice of availability in the Federal Register].

    Alternatives Considered

    In addition to the selected alternative, I considered [X] other alternatives, which are discussed below. A more detailed comparison of these alternatives can be found in the EIS on pages [X-X].

    Alternative 1—[insert a brief description of the alternative; identify which is considered to be environmentally-preferable.]

    Alternative 2 —[insert a brief description of the alternative]

    [Repeat for each alternative.]

    Mitigation

    [State (a) which mitigation measures have been adopted; (b) whether all practicable means to avoid or minimize have been adopted, and if not why they were not; and (c) whether monitoring and enforcement programs are adopted, and if so summarize them.]

    Implementation Date

    [Describe the expected date(s) of implementation].

    Contact

    For additional information concerning this decision, contact: [contact name, title, office, mailing address, phone number, and email]

    Concurrence: [Name] Project/Program Manager Date Director, J4E Date Approval: Director, DTRA/SCC-WMD Date
    [FR Doc. 2016-10376 Filed 5-4-16; 8:45 am] BILLING CODE 5001-06-P
    DEPARTMENT OF DEFENSE Office of the Secretary [Transmittal No. 16-07] 36(b)(1) Arms Sales Notification AGENCY:

    Defense Security Cooperation Agency, Department of Defense.

    ACTION:

    Notice.

    SUMMARY:

    The Department of Defense is publishing the unclassified text of a section 36(b)(1) arms sales notification. This is published to fulfill the requirements of section 155 of Public Law 104-164 dated July 21, 1996.

    FOR FURTHER INFORMATION CONTACT:

    Heather N. Harwell, DSCA/LMO, (703) 697-9217.

    The following is a copy of a letter to the Speaker of the House of Representatives,

    Transmittal 16-07 with attached Policy Justification and Sensitivity of Technology.

    Dated: May 2, 2016. Aaron Siegel, Alternate OSD Federal Register Liaison Officer, Department of Defense. BILLING CODE 5001-06-P EN05MY16.025 BILLING CODE 5001-06-C Transmittal No. 16-07 Notice of Proposed Issuance of Letter of Offer Pursuant to Section 36(b)(1) of the Arms Export Control Act, as Amended

    (i) Prospective Purchaser: Government of Qatar

    (ii) Total Estimated Value:

    Major Defense Equipment * $ 227 million Other $ 33 million Total $ 260 million

    (iii) Description and Quantity or Quantities of Articles or Services under Consideration for Purchase:

    Major Defense Equipment (MDE):

    Two-hundred and fifty-two (252) RIM 116C Rolling Airframe Tactical Missiles Two (2) RIM 116C-2 Rolling Airframe Telemetry Missiles

    Also included are the following non-MDE items; support equipment, publications, technical documentation, personnel training, U.S. Government and contractor engineering, technical and logistics support services, live fire test event support, and other related integration elements. The estimated cost is $260 million.

    (iv) Military Department: U.S. Navy (AAD)

    (v) Prior Related Cases, if any: None

    (vi) Sales Commission, Fee, etc., Paid, Offered, or Agreed to be Paid: None

    (vii) Sensitivity of Technology Contained in the Defense Article or Defense Services Proposed to be Sold: See Attached Annex

    (viii) Date Report Delivered to Congress: 21 April 2016

    * as defined in Section 47(6) of the Arms Export Control Act.

    POLICY JUSTIFICATION Qatar—RIM-116C and RIM-116C-2 Rolling Airframe Missiles

    The Government of Qatar has requested a possible sale of two-hundred and fifty-two (252) RIM-116C Rolling Airframe Tactical Missiles, and two (2) RIM 116C-2 Rolling Airframe Telemetry Missiles. Also included are support equipment, publications and technical documentation, personnel training, U.S. Government and contractor engineering, technical and logistics support services, live fire test event support, and other related integration elements. The total estimated value of MDE is $227 million. The overall total estimated value is $260 million.

    This proposed sale contributes to the foreign policy and national security of the United States by helping to improve the security of a friendly country. Qatar is an important force for political stability and economic progress in the Persian Gulf region. This proposed sale will provide Qatar with military capabilities to protect its naval forces and nearby oil/gas infrastructure from air and missile threats. Qatar will have no difficulty absorbing these missiles into its armed forces.

    The proposed sale of this equipment, services, and support will not alter the basic military balance in the region.

    The principal contractor will be Raytheon Missile Systems in Tucson, Arizona. There are no known offset agreements proposed in connection with this potential sale.

    Implementation of this proposed sale will require multiple trips by U.S. Government and contractor representatives to participate in program and technical reviews, system integration, as well as training and maintenance support in country for a period of thirty-six (36) months.

    There will be no adverse impact on U.S. defense readiness as a result of this proposed sale.

    Transmittal No. 16-07 Notice of Proposed Issuance of Letter of Offer Pursuant to Section 36(b)(1) of the Arms Export Control Act, as Amended Annex Item No. vii

    (vii) Sensitivity of Technology:

    The RIM-116C Rolling Airframe Missile is an autonomous (i.e., “fire and forget”) lightweight, supersonic, surface-to-air tactical missile for ship self-defense against current and evolving anti-ship cruise missile threats. Advanced technology in the RIM-116C includes dual-mode RF/IR (radio frequency/infrared) guidance with IR all-the-way capability for non-emitting threats. The highest classification of the hardware, embedded software, and maintenance is CONFIDENTIAL. The RIM-116C-2 is a non-tactical telemetry round, used primarily for test and training purposes; it includes an unclassified telemeter which replaces the warhead section. The data set, generated by RIM-116C-2 is UNCLASSIFIED.

    The Rolling Airframe Missile (RAM) is a product of a cooperative program with Germany and has been executed, since 1976, under a series of governing Memoranda of Understanding/Memoranda of Agreements (MOU/MOAs) for the development, production, and in-service support between the United States and Germany.

    A determination has been made that the Government of Qatar can provide substantially the same degree of protection for the sensitive technology being released as the U.S. Government. This sale is necessary in furtherance of U.S. foreign policy and national security objectives outlined in the Policy Justification.

    All defense articles and services listed in this transmittal have been authorized for release and export to the Government of Qatar.

    [FR Doc. 2016-10551 Filed 5-4-16; 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 Chief of Engineers Environmental Advisory Board (“the Board”).

    FOR FURTHER INFORMATION CONTACT:

    Jim Freeman, Advisory Committee Management Officer for the Department of Defense, 703-692-5952.

    SUPPLEMENTARY INFORMATION:

    The Board'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 found at http://www.facadatabase.gov/.

    The Board provides the Secretary of Defense and the Deputy Secretary of Defense, through the Secretary of the Army, the Assistant Secretary of the Army (Civil Works), and the Chief of Engineers, with independent advice and recommendations on matters relating to the two distinct component programs of the United States Army Corps of Engineers—the Military Program, which supports Army war fighters, and the Civil Works Program, which manages many of the water resources of the Nation.

    The Board is composed of no more than 10 members who are eminent authorities in the fields of natural (e.g. biology, ecology), social (e.g. anthropology, community planning), and related sciences. All members of the Board 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, Board 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 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. Such statements may be submitted at any time or in response to the stated agenda of planned Board. All written statements must be submitted to the Board's DFO who will ensure the written statements are provided to the membership for their consideration.

    Dated: May 2, 2016. Aaron Siegel, Alternate OSD Federal Register Liaison Officer, Department of Defense.
    [FR Doc. 2016-10563 Filed 5-4-16; 8:45 am] BILLING CODE 5001-06-P
    DEPARTMENT OF DEFENSE Office of the Secretary [Transmittal No. 16-19] 36(b)(1) Arms Sales Notification AGENCY:

    Defense Security Cooperation Agency, Department of Defense.

    ACTION:

    Notice.

    SUMMARY:

    The Department of Defense is publishing the unclassified text of a section 36(b)(1) arms sales notification. This is published to fulfill the requirements of section 155 of Public Law 104-164 dated July 21, 1996.

    FOR FURTHER INFORMATION CONTACT:

    Heather N. Harwell, DSCA/LMO, (703) 697-9217.

    The following is a copy of a letter to the Speaker of the House of Representatives, Transmittal 16-19 with attached Policy Justification and Sensitivity of Technology.

    Dated: May 2, 2016. Aaron Siegel, Alternate OSD Federal Register Liaison Officer, Department of Defense. BILLING CODE 5001-06-P EN05MY16.026 BILLING CODE 5001-06-C Transmittal No. 16-19 Notice of Proposed Issuance of Letter of Offer Pursuant to Section 36(b)(1) of the Arms Export Control Act, As Amended

    (i) Prospective Purchaser: Government of Australia

    (ii) Total Estimated Value:

    Major Defense Equipment * $1.08 billion Other $ .14 billion Total $1.22 billion

    (iii) Description and Quantity or Quantities of Articles or Services Under Consideration for Purchase:

    Major Defense Equipment (MDE):

    Up to 450 Advanced Medium-Range Air-to-Air Missiles (AIM-120D) Up to 34 AIM-120D Air Vehicles Instrumented (AAVI) Up to 6 Instrumented Test Vehicles (ITVs) Up to 10 spare AIM-120 Guidance Sections (GSs)

    Non-MDE:

    This request also includes the following Non-MDE: Containers, weapon system support equipment, support and test equipment, site survey, transportation, repair and return warranties, spare and repair parts, publications and technical data, maintenance, personnel training, and training equipment, U.S. Government and contractor representative engineering, logistics, and technical support services, and other related elements of logistics support.

    (iv) Military Department: Air Force (YLD)

    (v) Prior Related Cases, if any: AT-D-YKX-01 DEC 98, AT-D-YLB-06 OCT- 11 AT-D-YLC-25 FEB-15

    (vi) Sales Commission, Fee, etc., Paid, Offered, or Agreed to be Paid: None

    (vii) Sensitivity of Technology Contained in the Defense Article or Defense Services Proposed to be Sold: See Annex attached

    (viii) Date Report Delivered to Congress: 21 April 2016

    * as defined in Section 47(6) of the Arms Export Control Act.

    POLICY JUSTIFICATION Australia—AIM-120D Advanced Medium-Range Air-to-Air Missiles:

    The Government of Australia requested a possible sale of:

    Major Defense Equipment (MDE):

    Up to 450 Advanced Medium-Range Air-to-Air Missiles (AIM-120D) Up to 34 AIM-120D Air Vehicles Instrumented (AAVI) Up to 6 Instrumented Test Vehicles (ITVs) Up to 10 spare AIM-120 Guidance Sections (GSs)

    This request also includes the following Non-MDE: Containers, weapon system support equipment, support and test equipment, site survey, transportation, repair and return warranties, spare and repair parts, publications and technical data, maintenance, personnel training, and training equipment, U.S. Government and contractor representative engineering, logistics, and technical support services, and other related elements of logistics support.

    The total estimated value of MDE is $1.08 billion. The total overall estimated value is $1.22 billion.

    This proposed sale will contribute to the foreign policy and national security of the United States by helping to improve the security of a strategic partner and major contributor to political stability, security, and economic development in the Pacific region and globally.

    This proposed sale is in support of the Royal Australian Air Force's (RAAF) F/A-18, E/A-18G, and F-35 aircraft. This proposed sale will provide the RAAF additional air-to-air intercept capability and increase interoperability with the U.S. Air Force. Australia will have no difficulty absorbing these missiles into its armed forces.

    The proposed sale of this equipment will not alter the basic military balance in the region.

    The principal contractor for production is Raytheon in Tucson, Arizona. The principal contractor for integration is unknown and will be determined during contract negotiations. There are no known offset agreements proposed in connection with this potential sale.

    Implementation of this sale will not require the assignment of any additional U.S. or contractor representatives to Australia.

    There will be no adverse impact on U.S. defense readiness as a result of this proposed sale.

    Transmittal No. 16-19 Notice of Proposed Issuance of Letter of Offer Pursuant to Section 36(b)(1) of the Arms Export Control Act Annex Item No. vii

    (vii) Sensitivity of Technology:

    1. The AIM-120D AMRAAM hardware, including the missile guidance section, is classified CONFIDENTIAL. State-of-the-art technology is used in the missile to provide it with unique beyond-visual-range capability. The increase in capability from the AIM-120C-7 to AIM-120D consists of a two-way data link, a more accurate navigation unit, improved High-Angle Off-Boresight (HOBS) capability, and enhanced aircraft to missile position handoff.

    2. AIM-120D features a target detection device with embedded electronic countermeasures, an electronics unit within the guidance section that performs all radar signal processing, mid-course and terminal guidance, flight control, target detection, and warhead burst point determination.

    3. If a technologically advanced adversary were to obtain knowledge of the specific hardware and software elements, the information could be used to develop countermeasures that might reduce weapon system effectiveness or be used in the development of a system with similar or advance