Federal Register Vol. 81, No.94,

Federal Register Volume 81, Issue 94 (May 16, 2016)

Page Range30157-30481
FR Document

81_FR_94
Current View
Page and SubjectPDF
81 FR 30202 - Hazardous Materials: Incorporation by Reference Edition Update for the American Society of Mechanical Engineers Boiler and Pressure Vessel Code and Transportation Systems for Liquids and Slurries: Pressure Piping CodePDF
81 FR 30304 - Sunshine Act MeetingPDF
81 FR 30348 - Sunshine Act MeetingPDF
81 FR 30346 - Sunshine Act MeetingPDF
81 FR 30365 - Sunshine Act MeetingPDF
81 FR 30349 - Sunshine Act Meeting NoticePDF
81 FR 30179 - Safety Zone; Upper Mississippi River, Minneapolis, MNPDF
81 FR 30314 - Tribal Management Grant Program; CorrectionPDF
81 FR 30338 - 60-Day Notice of Proposed Information Collection: Father's Day SurveyPDF
81 FR 30338 - 60-Day Notice of Proposed Information Collection: Emergency Solutions Grant Data CollectionPDF
81 FR 30312 - Agency Information Collection Activities; Submission for Office of Management and Budget Review; Comment Request; Information To Accompany Humanitarian Device Exemption Applications and Annual Distribution Number Reporting RequirementsPDF
81 FR 30267 - Applications for New Awards; Investing in Innovation Fund-Scale-Up GrantsPDF
81 FR 30292 - Combined Notice of Filings #2PDF
81 FR 30294 - Combined Notice of Filings #1PDF
81 FR 30297 - Falck, David P.; Notice of FilingPDF
81 FR 30297 - Notice of Effectiveness of Exempt Wholesale Generator StatusPDF
81 FR 30295 - Millennium Pipeline Company, L.L.C.; Notice of Availability of the Environmental Assessment for the Proposed Valley Lateral ProjectPDF
81 FR 30298 - Combined Notice of Filings #1PDF
81 FR 30293 - V3 Commodities Group, LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 AuthorizationPDF
81 FR 30298 - ID SOLAR 1, LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 AuthorizationPDF
81 FR 30279 - Applications for New Awards; Investing in Innovation Fund-Validation GrantsPDF
81 FR 30297 - Combined Notice of FilingsPDF
81 FR 30298 - Combined Notice of FilingsPDF
81 FR 30291 - Combined Notice of Filings #2PDF
81 FR 30293 - Combined Notice of Filings #1PDF
81 FR 30296 - Combined Notice of Filings #2PDF
81 FR 30412 - U.S. National Commission for UNESCO Notice of Teleconference MeetingPDF
81 FR 30183 - Revised Interpretation of Clean Water Act Tribal ProvisionPDF
81 FR 30413 - Culturally Significant Objects Imported for Exhibition Determinations: “Keir Collection of Art of the Islamic World” ExhibitionsPDF
81 FR 30300 - National Wetland Condition Assessment 2011 Final ReportPDF
81 FR 30224 - Revision to the Near-Road NO2PDF
81 FR 30412 - Reporting and Recordkeeping Requirements Under OMB ReviewPDF
81 FR 30414 - Noise Exposure Map Notice; Receipt of Noise Compatibility Program and Request for Review Boise Air Terminal (Gowen Field) Boise, ID; CorrectionPDF
81 FR 30164 - Special Conditions: Cessna Aircraft Company, Models 208 and 208B, Caravan Airplanes; As Modified by Peregrine; Installation of Rechargeable Lithium BatteryPDF
81 FR 30413 - Sixth Meeting: RTCA Special Committee 233 Addressing Human Factors/Pilot Interface Issues for Avionics (SC-233)PDF
81 FR 30309 - Agency Information Collection Activities: Submission for OMB Review; Comment RequestPDF
81 FR 30308 - Agency Information Collection Activities: Proposed Collection; Comment RequestPDF
81 FR 30413 - Tenth Meeting: RTCA Special Committee 231 (SC-231) Terrain Awareness Warning Systems (TAWS)PDF
81 FR 30414 - Twenty-Third Meeting: RTCA Special Committee 222 (SC-222) AMS(R)S, Joint Meeting With EUROCAE WG-82PDF
81 FR 30239 - Advisory Committee on Supply Chain Competitiveness: Notice of Public MeetingsPDF
81 FR 30178 - Drawbridge Operation Regulation; Lake Washington Ship Canal, Seattle, WAPDF
81 FR 30202 - Fisheries of the Northeastern United States; Atlantic Sea Scallop Fishery; 2016 Closure of the Northern Gulf of Maine Scallop Management AreaPDF
81 FR 30305 - General Services Administration Acquisition Regulation; Submission for OMB Review; Proposal to Lease Space, GSA Form 1364 and Lessor's Annual Cost Statement, GSA Form 1217PDF
81 FR 30215 - Fisheries of the Exclusive Economic Zone Off Alaska; Deep-Water Species Fishery by Vessels Using Trawl Gear in the of the Gulf of AlaskaPDF
81 FR 30229 - Train Crew StaffingPDF
81 FR 30181 - Safety Zone; Fourth of July Fireworks, Crescent City, Crescent City Harbor, Crescent City, CAPDF
81 FR 30173 - Title Evidence for Trust Land AcquisitionsPDF
81 FR 30305 - Formations of, Acquisitions by, and Mergers of Bank Holding CompaniesPDF
81 FR 30305 - Notice of Proposals to Engage in or to Acquire Companies Engaged in Permissible Nonbanking ActivitiesPDF
81 FR 30337 - Agency Information Collection Activities: Application for Citizenship and Issuance of Certificate Under Section 322, Form N-600K; Revision of a Currently Approved CollectionPDF
81 FR 30331 - Agency Information Collection Activities: Application of Certificate of Citizenship, Form N-600; Revision of a Currently Approved CollectionPDF
81 FR 30240 - New England Fishery Management Council; Public MeetingPDF
81 FR 30341 - Notice of Receipt of Complaint; Solicitation of Comments Relating to the Public InterestPDF
81 FR 30240 - Western Pacific Fishery Management Council; Public MeetingsPDF
81 FR 30320 - Notice Announcing the Automated Commercial Environment (ACE) as the Sole CBP-Authorized Electronic Data Interchange (EDI) System for Processing Certain Electronic Entry and Entry Summary Filings Accompanied by Food and Drug Administration (FDA) DataPDF
81 FR 30322 - Notice of Issuance of Final Determination Concerning Certain Exercise EquipmentPDF
81 FR 30319 - Center for Scientific Review; Notice of Closed MeetingsPDF
81 FR 30320 - Center for Scientific Review; Notice of Closed MeetingsPDF
81 FR 30316 - Center for Scientific Review; Notice of Closed MeetingPDF
81 FR 30314 - Center for Scientific Review; Notice of Closed MeetingsPDF
81 FR 30221 - Special Local Regulation; Beaufort Water Festival, Beaufort, SCPDF
81 FR 30350 - PSEG Power, LLC and PSEG Nuclear LLC; PSEG SitePDF
81 FR 30157 - Energy Conservation Program: Exempt External Power Supplies Under the EPS Service Parts Act of 2014PDF
81 FR 30217 - Energy Conservation Program: Certification and Enforcement-Import Data Collection; Notice of Reopening of Comment PeriodPDF
81 FR 30266 - Submission for OMB Review; Comment RequestPDF
81 FR 30348 - Comment Request: National Science Foundation Proposal/Award Information-NSF Proposal and Award Policies and Procedures GuidePDF
81 FR 30238 - Notice of Petitions by Firms for Determination of Eligibility To Apply for Trade Adjustment AssistancePDF
81 FR 30324 - Agency Information Collection Activities: Proposed Collection; Comment Request; Public Assistance ProgramPDF
81 FR 30420 - Notice of Funding Availability for the Small Business Transportation Resource Center ProgramPDF
81 FR 30346 - Agency Information Collection Activities; Submission for OMB Review; Comment Request; Equal Employment Opportunity in Apprenticeship ProgramsPDF
81 FR 30415 - Notice of Funding Availability for the Small Business Transportation Resource Center ProgramPDF
81 FR 30415 - Hours of Service (HOS) of Drivers; American Pyrotechnics Ass'n. (APA) Application for Exemption From the 14-Hour Rule; Extension of Current APA Exemption Period; CorrectionPDF
81 FR 30218 - Slot Management and Transparency for LaGuardia Airport, John F. Kennedy International Airport, and Newark Liberty International AirportPDF
81 FR 30265 - Charter Renewal of Department of Defense Federal Advisory CommitteesPDF
81 FR 30311 - Postmarket Surveillance Under Section 522 of the Federal Food, Drug, and Cosmetic Act; Guidance for Industry and Food and Drug Administration Staff; AvailabilityPDF
81 FR 30425 - Additional Designations, Foreign Narcotics Kingpin Designation ActPDF
81 FR 30342 - Certain Quartz Slabs and Portions Thereof Institution of InvestigationPDF
81 FR 30340 - Certain Electrical Conductor Composite Cores and Components Thereof; Institution of InvestigationPDF
81 FR 30173 - Recovery of Debts Owed to the United States Government by Administrative OffsetPDF
81 FR 30266 - Notice of Availability (NOA) of a Draft Environmental Assessment (EA) Addressing the Closure of Former Defense Fuel Support Point (DFSP) Moffett Field Located in Santa Clara County, CaliforniaPDF
81 FR 30238 - Submission for OMB Review; Comment RequestPDF
81 FR 30237 - Submission for OMB Review; Comment RequestPDF
81 FR 30307 - Agency Forms Undergoing Paperwork Reduction Act ReviewPDF
81 FR 30307 - Statement of Organization, Functions, and Delegations of AuthorityPDF
81 FR 30219 - Qualified Facility Attestation Using Form FDA 3942a (for Human Food) or Form FDA 3942b (for Animal Food); Draft Guidance for Industry; Availability; Agency Information Collection Activities; Proposed Collection; Comment RequestPDF
81 FR 30310 - Considerations for Use of Histopathology and Its Associated Methodologies To Support Biomarker Qualification; Guidance for Industry; AvailabilityPDF
81 FR 30300 - William B. Ruger, Jr.; Notice of Existing Licensee's Failure To File Notice of Intent To File a Subsequent License ApplicationPDF
81 FR 30294 - Oklahoma Municipal Power Authority; Notice of Request for Partial WaiverPDF
81 FR 30299 - Implementation Issues Under the Public Utility Regulatory Policies Act of 1978; Supplemental Notice of Technical ConferencePDF
81 FR 30348 - Petition for ModificationPDF
81 FR 30347 - Petitions for Modification of Application of Existing Mandatory Safety StandardsPDF
81 FR 30302 - Initial Clearing Target of 126 Megahertz Set for the Broadcast Television Spectrum Incentive Auction; Bidding in the Clock Phase of the Reverse Auction (Auction 1001) Will Start on May 31, 2016PDF
81 FR 30239 - New England Fishery Management Council; Public MeetingPDF
81 FR 30244 - New England Fishery Management Council; Public MeetingPDF
81 FR 30243 - Gulf of Mexico Fishery Management Council; Public MeetingPDF
81 FR 30316 - National Cancer Institute; Notice of MeetingPDF
81 FR 30255 - Agency Information Collection Activities: Submission for OMB Review; Comment RequestPDF
81 FR 30256 - Agency Information Collection Activities: Comment RequestPDF
81 FR 30257 - Supervisory Highlights: Winter 2016PDF
81 FR 30304 - Change in Bank Control Notices; Acquisitions of Shares of a Bank or Bank Holding CompanyPDF
81 FR 30304 - Formations of, Acquisitions by, and Mergers of Bank Holding CompaniesPDF
81 FR 30345 - Notice of Lodging of Proposed Consent Decree Under the Clean Air ActPDF
81 FR 30345 - Notice of Lodging of Proposed Settlement Agreement Under the Comprehensive Environmental Response, Compensation, and Liability ActPDF
81 FR 30345 - Notice of Lodging of Proposed Consent Decree Under the Comprehensive Environmental Response, Compensation, and Liability ActPDF
81 FR 30264 - Army Science Board Request for Information on Robotic and Autonomous Systems-of-Systems (RAS) Technology InitiativesPDF
81 FR 30344 - Manufacturer of Controlled Substances Registration: Johnson Matthey, Inc.PDF
81 FR 30343 - Importer of Controlled Substances Registration: Siegfried USA, LLCPDF
81 FR 30362 - Self-Regulatory Organizations; NASDAQ PHLX LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Modify the Maximum Number of Times an Order on PSX May Be Updated Before the System Cancels the OrderPDF
81 FR 30381 - Self-Regulatory Organizations; The NASDAQ Stock Market LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change to Adopt a New Limit Up-Limit Down Pricing Program Under Rule 7014PDF
81 FR 30363 - Self-Regulatory Organizations; NASDAQ BX, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Modify the Maximum Number of Times an Order on BX May Be Updated Before the System Cancels the OrderPDF
81 FR 30395 - Self-Regulatory Organizations; Financial Industry Regulatory Authority, Inc.; Order Approving a Proposed Rule Change To Adopt FINRA Rule 4554, Alternative Trading Systems-Recording and Reporting Requirements of Order and Execution Information for NMS StocksPDF
81 FR 30373 - Self-Regulatory Organizations; Bats BZX Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change to Rule 11.13, Order Execution and Routing, To Delete References to the TRIM3 Routing OptionPDF
81 FR 30403 - Self-Regulatory Organizations; ISE Mercury, LLC; Notice of Filing of Proposed Rule Change Relating to a Corporate Transaction Involving Its Indirect ParentPDF
81 FR 30386 - Self-Regulatory Organizations; ISE Gemini, LLC; Notice of Filing of Proposed Rule Change Relating to a Corporate Transaction Involving Its Indirect ParentPDF
81 FR 30351 - Self-Regulatory Organizations; International Securities Exchange, LLC; Notice of Filing of Proposed Rule Change Relating to a Corporate Transaction Involving Its Indirect ParentPDF
81 FR 30366 - Self-Regulatory Organizations; Bats BYX Exchange, Inc. f.k.a BATS Y-Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Adopt Exchange Rule 11.27(a) To Implement the Quoting and Trading Provisions of the Regulation NMS Plan To Implement a Tick Size Pilot ProgramPDF
81 FR 30397 - Self-Regulatory Organizations; Bats EDGA Exchange, Inc. f/k/a EDGA Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Adopt Exchange Rule 11.21(a) To Implement the Quoting and Trading Provisions of the Regulation NMS Plan To Implement a Tick Size Pilot ProgramPDF
81 FR 30375 - Self-Regulatory Organizations; Bats EDGX Exchange, Inc. f/k/a EDGX Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Adopt Exchange Rule 11.22(a) To Implement the Quoting and Trading Provisions of the Regulation NMS Plan To Implement a Tick Size Pilot ProgramPDF
81 FR 30360 - Self-Regulatory Organizations; Bats BYX Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend Rule 11.13, Order Execution and Routing, To Delete the IOCM and ICMT Routing OptionsPDF
81 FR 30372 - Self-Regulatory Organizations; Bats BZX Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change Related to FeesPDF
81 FR 30319 - National Library of Medicine: Cancellation of MeetingPDF
81 FR 30317 - National Institute of Mental Health: Notice of Closed MeetingsPDF
81 FR 30314 - National Heart, Lung, and Blood Institute: Notice of Closed MeetingPDF
81 FR 30318 - National Heart, Lung, and Blood Institute; Notice of Closed MeetingPDF
81 FR 30317 - National Cancer Institute; Notice of Closed MeetingsPDF
81 FR 30343 - Manufacturer of Controlled Substances Registration: Johnson Matthey Pharmaceutical Materials, Inc.PDF
81 FR 30343 - Manufacturer of Controlled Substances Registration: Organix, Inc.PDF
81 FR 30344 - Manufacturer of Controlled Substances Registration: AMRI Rensselaer, Inc.PDF
81 FR 30245 - Notice of Proposed Amendment to and Request for Comment on the Final Order in Response to a Petition From Certain Independent System Operators and Regional Transmission Organizations To Exempt Specified Transactions Authorized by a Tariff or Protocol Approved by the Federal Energy Regulatory Commission or the Public Utility Commission of Texas From Certain Provisions of the Commodity Exchange Act Pursuant to the Authority Provided in the ActPDF
81 FR 30178 - Drawbridge Operation Regulation; Willamette River, Portland, ORPDF
81 FR 30181 - Approval and Promulgation of Implementation Plans; Oregon: Interstate Transport of Lead and Nitrogen DioxidePDF
81 FR 30198 - Emission Mask Requirements for Digital Technologies on 800 MHz NPSPAC Channels; Analog FM Capability on Mutual Aid and Interoperability ChannelsPDF
81 FR 30203 - Magnuson-Stevens Act Provisions; Fisheries Off West Coast States; Pacific Coast Groundfish Fishery; Annual Specifications and Management Measures for the 2016 Tribal and Non-Tribal Fisheries for Pacific WhitingPDF
81 FR 30340 - Notice of Public Meeting for the Southeast Oregon Resource Advisory CouncilPDF
81 FR 30331 - Extension of the Designation of Honduras for Temporary Protected StatusPDF
81 FR 30325 - Extension of the Designation of Nicaragua for Temporary Protected StatusPDF
81 FR 30301 - Public Comment Draft for the Integrated Risk Information System (IRIS) Assessment of tert-Butyl AlcoholPDF
81 FR 30182 - National Emission Standards for Hazardous Air Pollutants: Off-Site Waste and Recovery Operations: Action Denying a Petition for ReconsiderationPDF
81 FR 30229 - Revisions to Arbitration ProceduresPDF
81 FR 30237 - Ketchikan Resource Advisory CommitteePDF
81 FR 30166 - Airworthiness Directives; The Boeing Company AirplanesPDF
81 FR 30170 - Airworthiness Directives; The Boeing Company AirplanesPDF
81 FR 30451 - Significant New Use Rules on Certain Chemical SubstancesPDF
81 FR 30449 - Federal Acquisition Regulation; Federal Acquisition Circular 2005-88; Small Entity Compliance GuidePDF
81 FR 30448 - Federal Acquisition Regulation; Technical AmendmentsPDF
81 FR 30447 - Federal Acquisition Regulation; Improvement in Design-Build Construction ProcessPDF
81 FR 30439 - Federal Acquisition Regulation; Basic Safeguarding of Contractor Information SystemsPDF
81 FR 30438 - Federal Acquisition Regulation: Simplified Acquisition Threshold for Overseas Acquisitions in Support of Humanitarian or Peacekeeping OperationsPDF
81 FR 30429 - Federal Acquisition Regulation: High Global Warming Potential HydrofluorocarbonsPDF
81 FR 30427 - Federal Acquisition Regulation; Federal Acquisition Circular 2005-88; IntroductionPDF

Issue

81 94 Monday, May 16, 2016 Contents Agriculture Agriculture Department See

Forest Service

Army Army Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Army Science Board; Robotic and Autonomous Systems-of-Systems Technology Initiatives, 30264-30265 2016-11417 Consumer Financial Protection Bureau of Consumer Financial Protection NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 30255-30257 2016-11424 2016-11425 Supervisory Highlights: Winter 2016, 30257-30264 2016-11423 Centers Disease Centers for Disease Control and Prevention NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 30307 2016-11441 Statements of Organization, Functions, and Delegations of Authority, 30307-30308 2016-11440 Centers Medicare Centers for Medicare & Medicaid Services NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 30308-30310 2016-11499 2016-11500 Coast Guard Coast Guard RULES Drawbridge Operations: Lake Washington Ship Canal, Seattle, WA, 30178 2016-11495 Willamette River, Portland, OR, 30178-30179 2016-11381 Safety Zones: Fourth of July Fireworks, Crescent City, Crescent City Harbor, Crescent City, CA, 30181 2016-11490 Upper Mississippi River, Minneapolis, MN, 30179-30181 2016-11569 PROPOSED RULES Special Local Regulations: Beaufort Water Festival, Beaufort, SC, 30221-30224 2016-11471 Commerce Commerce Department See

Economic Development Administration

See

International Trade Administration

See

National Oceanic and Atmospheric Administration

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 30237-30238 2016-11442 2016-11443
Commodity Futures Commodity Futures Trading Commission NOTICES Final Orders; Proposed Amendments: Petition From Certain Independent System Operators and Regional Transmission Organizations to Exempt Specified Transactions, 30245-30255 2016-11385 Defense Department Defense Department See

Army Department

RULES Federal Acquisition Regulations: Basic Safeguarding of Contractor Information Systems, 30439-30447 2016-11001 Federal Acquisition Circular 2005-88; Introduction, 30428-30429 2016-10995 Federal Acquisition Circular 2005-88; Small Entity Compliance Guide, 30449-30450 2016-11005 High Global Warming Potential Hydrofluorocarbons, 30429-30438 2016-10998 Improvement in Design-Build Construction Process, 30447-30448 2016-11003 Simplified Acquisition Threshold for Overseas Acquisitions in Support of Humanitarian or Peacekeeping Operations, 30438-30439 2016-10999 Technical Amendments, 30448-30449 2016-11004 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 30266-30267 2016-11467 Charter Renewals: Federal Advisory Committees, 30265-30266 2016-11452 Environmental Assessments; Availability, etc.: Closure of Former Defense Fuel Support Point Moffett Field Located in Santa Clara County, CA, 30266 2016-11444
Drug Drug Enforcement Administration NOTICES Importers of Controlled Substances; Registrations: Siegfried USA, LLC, 30343-30344 2016-11414 Manufacturers of Controlled Substances; Registrations: AMRI Rensselaer, Inc., 30344 2016-11392 Johnson Matthey Pharmaceutical Materials, Inc., 30343 2016-11394 Johnson Matthey, Inc., West Deptford, NJ, 30344-30345 2016-11415 Organix, Inc., 30343 2016-11393 Economic Development Economic Development Administration NOTICES Trade Adjustment Assistance Eligibility; Petitions, 30238-30239 2016-11465 Education Department Education Department NOTICES Applications for New Awards: Investing in Innovation Fund—Scale-up Grants, 30267-30279 2016-11531 Investing in Innovation Fund—Validation Grants, 30279-30291 2016-11522 Energy Department Energy Department See

Federal Energy Regulatory Commission

RULES Energy Conservation Program: Exempt External Power Supplies Under the EPS Service Parts Act, 30157-30163 2016-11469 PROPOSED RULES Energy Conservation Program: Certification and Enforcement—Import Data Collection, 30217-30218 2016-11468
Environmental Protection Environmental Protection Agency RULES Air Quality State Implementation Plans; Approvals and Promulgations: Oregon: Interstate Transport of Lead and Nitrogen Dioxide, 30181-30182 2016-11380 Petitions for Reconsideration: National Emission Standards for Hazardous Air Pollutants: Off-Site Waste and Recovery Operations, 30182-30183 2016-11252 Revised Interpretation of Clean Water Act Tribal Provision, 30183-30198 2016-11511 Significant New Use Rules on Certain Chemical Substances, 30452-30481 2016-11121 PROPOSED RULES Near-road NO2 Minimum Monitoring Requirements, 30224-30229 2016-11507 NOTICES National Wetland Condition Assessment 2011 Final Report, 30300-30301 2016-11508 Public Comment Draft for the Integrated Risk Information System Assessment of tert-Butyl Alcohol, 30301-30302 2016-11264 Federal Aviation Federal Aviation Administration RULES Airworthiness Directives: The Boeing Company Airplanes, 30166-30173 2016-11197 2016-11200 Special Conditions: Cessna Aircraft Company, Models 208 and 208B, Caravan Airplanes; As Modified by Peregrine; Installation of Rechargeable Lithium Battery, 30164-30166 2016-11502 PROPOSED RULES Slot Management and Transparency for LaGuardia Airport, John F. Kennedy International Airport, and Newark Liberty International Airport; Withdrawal, 30218-30219 2016-11455 NOTICES Meetings: RTCA Special Committee 222 AMS(R)S with EUROCAE WG-82, 30414 2016-11497 RTCA Special Committee 231 Terrain Awareness Warning Systems, 30413-30414 2016-11498 RTCA Special Committee 233 Addressing Human Factors/Pilot Interface Issues for Avionics, 30413 2016-11501 Noise Exposure Maps: Boise Air Terminal (Gowen Field) Boise, ID; Correction, 30414-30415 2016-11503 Federal Communications Federal Communications Commission RULES Emission Mask Requirements for Digital Technologies on 800 MHz NPSPAC Channels; Analog FM Capability on Mutual Aid and Interoperability Channels, 30198-30202 2016-11336 NOTICES Initial Clearing Target of 126 Megahertz Set for the Broadcast Television Spectrum Incentive Auction: Bidding in the Clock Phase of the Reverse Auction (Auction 1001), 30302-30304 2016-11432 Federal Election Federal Election Commission NOTICES Meetings; Sunshine Act, 30304 2016-11636 Federal Emergency Federal Emergency Management Agency NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Public Assistance Program, 30324-30325 2016-11464 Federal Energy Federal Energy Regulatory Commission NOTICES Combined Filings, 30291-30299 2016-11517 2016-11518 2016-11519 2016-11520 2016-11521 2016-11525 2016-11529 2016-11530 Environmental Assessments; Availability, etc.: Millennium Pipeline Co., LLC, Valley Lateral Project, 30295-30296 2016-11526 Exempt Wholesale Generator Status: Enterprise Solar, LLC, et al., 30297 2016-11527 Filings: Falck, David P., 30297 2016-11528 Initial Market-Based Rate Filings Including Requests for Blanket Section 204 Authorizations: ID SOLAR 1, LLC, 30298 2016-11523 V3 Commodities Group, LLC, 30293 2016-11524 License Applications: William B. Ruger, Jr.; Failure to File, 30300 2016-11437 Meetings: Implementation Issues Under the Public Utility Regulatory Policies Act; Supplement, 30299-30300 2016-11435 Requests for Partial Waivers: Oklahoma Municipal Power Authority, 30294 2016-11436 Federal Maritime Federal Maritime Commission NOTICES Meetings; Sunshine Act, 30304 2016-11602 Federal Motor Federal Motor Carrier Safety Administration NOTICES Hours of Service of Drivers; Exemption Applications: American Pyrotechnics Assn; Correction, 30415 2016-11456 Federal Railroad Federal Railroad Administration PROPOSED RULES Train Crew Staffing, 30229 2016-11491 Federal Reserve Federal Reserve System NOTICES Changes in Bank Control: Acquisitions of Shares of a Bank or Bank Holding Company, 30304-30305 2016-11422 Formations of, Acquisitions by, and Mergers of Bank Holding Companies, 30304-30305 2016-11421 2016-11488 Proposals to Engage in or to Acquire Companies Engaged in Permissible Nonbanking Activities, 30305 2016-11487 Food and Drug Food and Drug Administration PROPOSED RULES Draft Guidance for Industry: Qualified Facility Attestation, 30219-30221 2016-11439 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Information to Accompany Humanitarian Device Exemption Applications and Annual Distribution Number Reporting Requirements, 30312-30314 2016-11532 Guidance: Considerations for Use of Histopathology and Its Associated Methodologies to Support Biomarker Qualification, 30310-30311 2016-11438 Postmarket Surveillance Under the Federal Food, Drug, and Cosmetic Act, 30311-30312 2016-11450 Foreign Assets Foreign Assets Control Office NOTICES Blocking or Unblocking of Persons and Properties, 30425 2016-11449 Forest Forest Service NOTICES Meetings: Ketchikan Resource Advisory Committee, 30237 2016-11208 General Services General Services Administration RULES Federal Acquisition Regulations: Basic Safeguarding of Contractor Information Systems, 30439-30447 2016-11001 Federal Acquisition Circular 2005-88; Introduction, 30428-30429 2016-10995 Federal Acquisition Circular 2005-88; Small Entity Compliance Guide, 30449-30450 2016-11005 High Global Warming Potential Hydrofluorocarbons, 30429-30438 2016-10998 Improvement in Design-Build Construction Process, 30447-30448 2016-11003 Simplified Acquisition Threshold for Overseas Acquisitions in Support of Humanitarian or Peacekeeping Operations, 30438-30439 2016-10999 Technical Amendments, 30448-30449 2016-11004 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Proposal to Lease Space and Lessor's Annual Cost Statement, 30305-30306 2016-11493 Health and Human Health and Human Services Department See

Centers for Disease Control and Prevention

See

Centers for Medicare & Medicaid Services

See

Food and Drug Administration

See

Indian Health Service

See

National Institutes of Health

Homeland Homeland Security Department See

Coast Guard

See

Federal Emergency Management Agency

See

U.S. Citizenship and Immigration Services

See

U.S. Customs and Border Protection

Housing Housing and Urban Development Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Emergency Solutions Grant Data Collection, 30338-30340 2016-11536 Father's Day Survey, 30338 2016-11537 Indian Affairs Indian Affairs Bureau RULES Title Evidence for Trust Land Acquisitions, 30173-30178 2016-11489 Indian Health Indian Health Service NOTICES Tribal Management Grant Program; Correction, 30314 2016-11545 Interior Interior Department See

Indian Affairs Bureau

See

Land Management Bureau

International Trade Adm International Trade Administration NOTICES Meetings: Advisory Committee on Supply Chain Competitiveness, 30239 2016-11496 International Trade Com International Trade Commission NOTICES Complaints: Certain L-Tryptophan, L-Tryptophan Products, and Their Methods of Production, 30341-30342 2016-11481 Investigations; Determinations, Modifications, and Rulings, etc.: Certain Electrical Conductor Composite Cores and Components Thereof, 30340-30341 2016-11446 Certain Quartz Slabs and Portions Thereof, 30342-30343 2016-11448 Justice Department Justice Department See

Drug Enforcement Administration

See

Parole Commission

NOTICES Proposed Consent Decrees Under CERCLA, 30345-30346 2016-11418 2016-11419 Proposed Consent Decrees Under the Clean Air Act, 30345 2016-11420
Labor Department Labor Department See

Mine Safety and Health Administration

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Equal Employment Opportunity in Apprenticeship Programs, 30346-30347 2016-11462
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81 94 Monday, May 16, 2016 Rules and Regulations DEPARTMENT OF ENERGY 10 CFR Parts 429 and 430 [Docket No. EERE-2015-BT-CRT-0013] RIN 1904-AD53 Energy Conservation Program: Exempt External Power Supplies Under the EPS Service Parts Act of 2014 AGENCY:

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

ACTION:

Final rule.

SUMMARY:

On November 18, 2015, the U.S. Department of Energy (“DOE”) issued a notice of proposed rulemaking to exempt certain types of external power supplies consistent with the EPS Service Parts Act of 2014. That proposal, which serves as the basis for this final rule, explained that the Act exempted certain EPSs made available by a manufacturer as a service or spare part from the energy conservation standards promulgated in a February 2014 final rule. The proposal sought to codify this exemption and certain related reporting requirements. This rule adopts the November 2015 proposal along with related provisions to require manufacturers to annually report the total units of exempt EPSs shipped as service and spare parts that fail to meet the appropriate energy conservation standards.

DATES:

The effective date of this rule is June 15, 2016.

ADDRESSES:

The docket, which includes Federal Register notices, comments, and other supporting documents/materials, is available for review at regulations.gov. All documents in the docket are listed in the regulations.gov index. However, some documents listed in the index, such as those containing information that is exempt from public disclosure, may not be publicly available.

A link to the docket Web page can be found at: http://www1.eere.energy.gov/buildings/appliance_standards/product.aspx?productid=23. This Web page will contain a link to the docket for this rulemaking on the regulations.gov site. The regulations.gov Web page will contain simple instructions on how to access all documents, including public comments, in the docket.

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:

Direct requests for additional information may be sent to Mr. Jeremy Dommu, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Building Technologies Program, EE-2J, 1000 Independence Avenue SW., Washington, DC 20585-0121. Telephone: (202) 586-9870. Email: [email protected]

For legal issues, please contact Mr. Michael Kido, U.S. Department of Energy, Office of the General Counsel, GC-33, 1000 Independence Avenue SW., Washington, DC 20585-0121. Telephone: (202) 586-8145. Email: [email protected]

SUPPLEMENTARY INFORMATION: Table of Contents I. Authority and Background II. Synopsis of the Final Rule III. Discussion A. Codifying the Exemption in the CFR B. Service or Spare Part EPSs C. Sales Reporting Requirements IV. Procedural Issues and Regulatory Review A. Review Under Executive Order 12866 B. Review Under the Regulatory Flexibility Act C. Review Under the Paperwork Reduction Act of 1995 D. Review Under the National Environmental Policy Act of 1969 E. Review Under Executive Order 13132 F. Review Under Executive Order 12988 G. Review Under the Unfunded Mandates Reform Act of 1995 H. Review Under the Treasury and General Government Appropriations Act, 1999 I. Review Under Executive Order 12630 J. Review Under Treasury and General Government Appropriations Act, 2001 K. Review Under Executive Order 13211 L. Review Under Section 32 of the Federal Energy Administration Act of 1974 M. Congressional Notification V. Approval of the Office of the Secretary I. Authority and Background

Title III of the Energy Policy and Conservation Act of 1975 (42 U.S.C. 6291, et seq.; “EPCA” or, in context, “the Act”) sets forth a variety of provisions designed to improve energy efficiency.1 Part B 2 of Title III establishes the “Energy Conservation Program for Consumer Products Other Than Automobiles.” External power supplies are among the products affected by these provisions.

1 All references to EPCA refer to the statute as amended through the Energy Efficiency Improvement Act, Public Law 114-11 (April 30, 2015).

2 For editorial reasons, Part B was redesignated as Part A upon incorporation into the U.S. Code (42 U.S.C. 6291-6309, as codified).

Under EPCA, the energy conservation program consists essentially of four parts: (1) Testing, (2) labeling, (3) Federal energy conservation standards, and (4) certification and enforcement procedures. The testing requirements consist of test procedures that manufacturers of covered products must use as the basis for (1) certifying to DOE that their products comply with the applicable energy conservation standards adopted under EPCA, and (2) making representations about the efficiency of those products. Similarly, DOE must use these test procedures to determine whether the products comply with any relevant standards promulgated under EPCA.

Background

Section 301 of EISA 2007 established minimum energy conservation standards for Class A external power supplies (“EPSs”) manufactured on or after July 1, 2008. (42 U.S.C. 6295(u)(3)(A)). See 42 U.S.C. 6291(36)(C)(i)-(ii). EISA 2007 exempts Class A EPSs from meeting these statutorily-prescribed standards if the devices were manufactured before July 1, 2015, and made available by the manufacturer as service parts or spare parts for end-use consumer products that were manufactured prior to July 1, 2008. (42 U.S.C. 6295(u)(3)(B)) Congress created this limited (and temporary) exemption as part of a broad range of amendments to EPCA under EISA 2007. The provision did not grant DOE with the authority to expand or extend the length of this exemption and Congress did not grant DOE with the general authority to exempt any already covered product from the requirements set by Congress.

After releasing a preliminary analysis and issuing a proposed set of energy conservation standards, DOE published a final rule prescribing new standards for non-Class A EPSs and amended standards for some Class A EPSs. See 79 FR 7846 (February 10, 2014). These new standards, commonly referred to as Level VI efficiency standards because EPSs subject to these standards are required to be marked with the Roman numeral VI according to the External Power Supply International Efficiency Marking Protocol, apply to products manufactured on or after February 10, 2016. When DOE published the rule, it did not have the authority to provide manufacturers with an exemption for EPSs manufactured after to the compliance date of these new standards if they were made available as service or spare parts to end-use consumer products. Accordingly, despite requests from some commenters who responded to DOE's proposed standards by asking for such an exemption, DOE could provide no such relief as part of that final rule.

On December 18, 2014, Congress enacted the EPS Service Parts Act of 2014 (“Service Parts Act”). That law exempted manufacturers of certain EPSs that are made available as service and spare parts for end-use products manufactured before February 10, 2016 from the energy conservation standards that DOE promulgated in its February 2014 rule. To be exempt under the Service Parts Act, an EPS must meet four separate criteria. Specifically, the EPS must be: (i) Manufactured during the period beginning on February 10, 2016, and ending on February 10, 2020; (ii) marked in accordance with the External Power Supply International Efficiency Marking Protocol; (iii) compliant, where applicable, with the standards for Class A EPSs and certified to DOE as meeting at least International Efficiency Level IV; and (iv) made available by the manufacturer as a service part or spare part for an end-use product manufactured before February 10, 2016.

Additionally, the Service Parts Act permits DOE to require manufacturers of an EPS that is exempt from the 2016 standards to report to DOE the total number of such EPS units that are shipped annually as service and spare parts and that do not meet those standards. See 42 U.S.C. 6295(u)(5)(A)(ii). DOE may also limit the applicability of the exemption if the Secretary determines that the exemption is resulting in a significant reduction of the energy savings that would result in the absence of the exemption. See 42 U.S.C. 6295(u)(5)(A)(iii). Finally, the statute authorizes DOE to provide a similar exemption for EPSs from future energy conservation standards.

On November 18, 2015, DOE published a notice of proposed rulemaking (“NOPR”) proposing to codify the provisions of the EPS Service Parts Act of 2014 within the Code of Federal Regulations (“CFR”) and solicited comment from the public. 80 FR 71984. As part of the NOPR, DOE sought comment on a number of specific issues including: How manufacturers produce spare or service parts as compared to how manufacturers produce EPS units provided with a new product, the specific language that should be codified regarding the exemption of certain EPSs sold as service or spare parts, and the reporting timeframe for importers and domestic manufacturers to report the total number of units sold in the prior year. DOE analyzed all of the comments received from the list of commenters in Table I-1 in response to the 2015 NOPR and incorporated recommendations, where appropriate, into this final rule.

3 DOE notes that ITI also filed supplemental comments after the comment period had closed. These comments, which re-emphasized various points ITI had already made in its timely-filed joint comments with AHAM, were not considered by DOE in finalizing this rule due to their untimely nature.

Table I-1—List of Commenters Organization Abbreviation Appliance Standards Awareness Project, National Resources Defense Council, and American Council for an Energy Efficient Economy ASAP, et al. Association of Home Appliance Manufacturers, Consumer Electronics Association, Information Technology Council, and National Electrical Manufacturers Association AHAM, et al. Information Technology Council 3 ITI California Investor Owned Utilities CA IOUs II. Synopsis of the Final Rule

DOE is incorporating the statutory provisions described in this preamble into its regulations. DOE is also providing some clarification on the circumstances under which EPSs would be considered spare or service parts. Lastly, DOE is requiring manufacturers who manufacture 1,000 or more exempt EPSs to annually report to DOE the total number of units of exempt EPSs shipped as service and spare parts that do not meet the 2016 standards.

III. Discussion A. Codifying the Exemption in the CFR

DOE is incorporating the provisions of the Service Parts Act into 10 CFR 430.32 to ensure that the regulations reflect the statutory exemption and that interested parties are able to readily access the content of this new statutory provision. Additionally, since the exemption from the Class A (Level IV) standards for certain EPSs that are made available as service and spare parts expired on June 30, 2015, DOE is also removing the text related to this now-expired exemption from 10 CFR 4320.32(w)(2), and replacing it with the new provisions of the Service Parts Act that exempt certain EPSs from the new and amended direct operation (Level VI) standards.

B. Service or Spare Part EPSs

In the NOPR, DOE explained that the Service Parts Act provides an exemption for certain EPSs that are made available by manufacturers as service or spare parts. DOE observed that most end-use products that use EPSs are sold with the EPS that is necessary to operate that product. DOE proposed that, in applying the statutory exemption, an EPS that is sold with an end-use product would not be considered to be a service or spare part. However, DOE noted that, in its view, any EPS sold separately from an end-use product, including an EPS made available as a replacement for, or in addition to, the EPS originally sold with an end-use product, would be considered an EPS made available as a service or spare part—which would make that EPS potentially eligible to be exempt from the 2016 standards under the Service Parts Act.

To further clarify its application of this statutory exemption, DOE proposed that only those EPSs that are made available as service or spare parts for end-use products that were manufactured before February 10, 2016 (the date that manufacturers must comply with the new and amended standards for direct operation EPSs) would qualify for the exemption. DOE proposed, accordingly, that if an EPS is made available as a service part or spare part for any end-use product that continues to be manufactured after February 10, 2016, or is sold with any end-use product manufactured after that date, that EPS would not be eligible for the exemption.

In the NOPR, DOE further recognized that many EPSs, like those that use an industry standard communication protocol, such as the universal serial bus (“USB”), may be capable of operating many different end-use products. To apply the statutory exemption to the “basic model” concept used in its regulatory scheme, DOE proposed that the exemption would apply to an EPS basic model that a manufacturer makes available only as a service part or a spare part for an end-use product that was manufactured before February 10, 2016, and would not apply to an EPS basic model that a manufacturer makes available as a service part or spare part for end-use products that continue to be manufactured after February 10, 2016. Thus, an EPS basic model would be exempt from the 2016 Level VI standard if, among other criteria, it is made available by the manufacturer only as a service part or a spare part for an end-use product, and only if the end-use product was manufactured before February 10, 2016. DOE sought comment on this proposal from stakeholders and interested parties.

ASAP, et al. supported DOE's efforts to construct a narrowly-defined exemption for EPSs offered as service or spare parts to aid in limiting the sale of a larger number of EPSs than warranted by the intent of the law, stating that “abuse of the exemption could significantly reduce energy savings from the EPS standards.” (ASAP, et al., No. 2 at p.2) AHAM, et al. also expressed support for DOE's proposal in their comments noting that “this is a sensible exemption that will allow manufacturers to maintain supplies of replacement parts for older equipment and will also allow warranty and contract compliance by manufacturers, as well as manufacturer compliance with state parts retention laws.” (AHAM, et al., No. 3 at p.1)

Similarly, ASAP, et al. strongly supported DOE's interpretation that the exemption should not apply to EPSs made available as spare or service parts that are sold with products manufactured after February 10, 2016. ASAP, et al. asserted that the redesign of EPSs for products manufactured afterward is justified because an EPS that is sold with a product manufactured after February 10, 2016, would already be required to meet the new standards, and thus it does not create undue burden on industry to ensure that EPSs made available as spare or service parts for those same end-use products also comply with the new standards. (ASAP, et al., No. 2 at p.3) The CA IOUs agreed that any spare or service EPS for products manufactured after the compliance date should comply with the 2016 standards because redesigning an EPS or designing a substitute EPS to comply with the standards would not be a significant burden for manufacturers to meet. (CA IOUs, No. 5 at p.2) The CA IOUs also supported DOE's interpretation that the exemption would not apply to EPSs that are sold as spare or service parts but are capable of operating end-use products manufactured both before and after the compliance date. In their collective view, meeting the 2016 standard would not be an undue burden for manufacturers to meet. (CA IOUs, No. 5 at p.2)

ITI disagreed. In its view, the Service Parts Act exemption should apply to all EPSs made available as spare or service parts for end-use products manufactured prior to the 2016 compliance date. (ITI, No. 4 at p.1) It argued that DOE's proposed clarification would deny this exemption to many USBs and other EPSs capable of operating multiple end-use products contrary to the required exemption of the Service Parts Act. ITI further claimed that the apparent reduction in scope of the exemption provides insufficient notice to manufacturers as they were anticipating the exemption to reflect what they believed would be the clear language and scope of the enacted law. (ITI, No. 4 at p.2)

In the NOPR, DOE misstated in one place that, if an EPS is capable of operating multiple end-use products, some of which were manufactured before February 10, 2016, and some of which were manufactured after February 10, 2016, then that EPS would not be eligible for the service and spare part exemption since the EPS can operate an end-use product manufactured after February 10, 2016. 80 FR at 71986. DOE understands that this statement in the preamble may have caused confusion. The exemption as DOE proposed in the NOPR, would apply to an EPS basic model that is “made available by the manufacturer only as a service part or a spare part for an end-use product.” Id. at 71990 (emphasis added). DOE clarifies, and this rule establishes, that an EPS that is capable of operating end-use products manufactured on or after February 10, 2016, could be exempt, provided that the manufacturer makes the relevant basic model available only as a service part or spare part for end-use products manufactured before February 10, 2016.

Given the nature of DOE's regulatory scheme, under which the non-compliance of a product is determined on a basic model, not unit-by-unit, basis, this final rule offers a reasonable approach in applying the Service Parts Act's exemption. See 10 CFR 429.114. Applied otherwise, a basic model of EPS would be wholly exempt (i.e., all units of the basic model) from the Level VI standard based solely on the fact that as few as one unit of the basic model was made available by the manufacturer as a service part or a spare part for an end-use product manufactured before February 10, 2016. DOE declines to adopt an interpretation of the statutory exemption that would offer a blanket exemption to such a basic model.

Therefore, DOE is finalizing its proposal that this exemption would apply to an EPS basic model that a manufacturer makes available only as a service part or a spare part for an end-use product that was manufactured before February 10, 2016, and would not apply to an EPS basic model that a manufacturer makes available as a service part or spare part for end-use products that continue to be manufactured after February 10, 2016.

C. Sales Reporting Requirements

The Service Parts Act permits DOE to require manufacturers of an EPS that is exempt from the 2016 standards to report to DOE the total number of such EPS units that are shipped annually as service and spare parts and that do not meet those standards. See 42 U.S.C. 6295(u)(5)(A)(ii). DOE stated that it considered the “shipments” referred to in the statute to be those units sold by either the importer or the domestic manufacturer, and that because importers could have both incoming and outgoing shipments, DOE considered “units sold” to be clearer than “units shipped.” See 42 U.S.C. 6291(12) (under EPCA, “manufacture” means “to manufacture, produce, assemble or import”).

Accordingly, consistent with the Service Parts Act, DOE proposed that importers and domestic manufacturers of EPSs that are exempt under the Service Parts Act would be required to report annually to DOE the total number of exempt EPS units that were sold during the most recent 12-calendar-month period ending on July 31 that do not meet the 2016 standards. 80 FR at 71986. DOE received no comments specifically with regard to the use of the word “sold” as opposed to “shipped” in this context, and will use the word “sold” in its reporting requirement, as proposed in the NOPR.

DOE explained in the NOPR that many of the EPSs sold as spare and service parts are Class A EPSs and they continue to be subject to the current Class A EPS standards (i.e. Level IV) set forth in 10 CFR 430.32(w)(1)(i). As such, manufacturers of any basic model of a Class A EPS must already submit an annual certification report to DOE. See 10 CFR 429.12. Moreover, the Service Parts Act requires that an EPS must be certified to DOE as meeting Level IV standards in order to qualify for the exemption. Therefore, DOE proposed that each manufacturer of exempt Class A EPSs include in its annual report certifying compliance with Level IV standards the number of units of each individual model of such EPS it sold in the preceding year that do not meet the Level VI standards.

Similarly, DOE proposed to require each importer or domestic manufacturer of non-Class A EPSs that are exempted by the Service Parts Act and do not meet the 2016 standards to submit an annual report of the corresponding number of units of each individual model of such EPS that the importer or domestic manufacturer sold in the prior year. These non-Class A EPSs include multiple-voltage EPSs, high-power EPSs, and some EPSs used to operate end-use products that are motor-driven. Under DOE's February 2014 final rule, non-Class A EPSs, unless exempt, are required to meet the Level VI standards starting in 2016. These non-class A EPSs would not be certified under the provisions of 10 CFR 429.12 (General requirements applicable to certification reports), if they are exempt, but under DOE's proposal, manufacturers of these EPSs would be required to submit a report including the number of exempt EPSs sold.

Separately, the Service Parts Act authorizes DOE to limit the applicability of the service and spare part exemption if DOE determines that the exemption is resulting in a significant reduction of the energy savings that would otherwise result from the final rule. See 42 U.S.C. 6295(u)(5)(A)(iii). Having information regarding the number of exempt units sold would aid DOE in making this determination.

ASAP, et al. noted that reporting is vital to DOE's ability to assess the impact of the EPS Service Parts Act of 2014 on the energy savings projected by the 2014 standards and supported DOE's proposal to extend the reporting requirements to non-Class A EPSs that are subject to federal efficiency standards. (ASAP, et al., No. 2 at p.3) The CA IOUs also supported DOE's proposals, noting that ensuring applicable EPS units that are subject to current efficiency requirements continue to meet these standards would prevent potential backsliding and an accompanying loss of energy savings. The CA IOUs also strongly supported having domestic manufacturers and importers report to DOE the total number of exempt EPS units sold on an annual basis to help ensure that energy savings from the 2014 standards are realized. (CA IOUs, No. 5 at p.2)

AHAM, et al., however, expressed concern over DOE's reporting requirement proposals. AHAM, et al. noted that most companies have low shipment volumes of spare and service parts for products manufactured prior to the compliance date and that the cost of reporting these data would outweigh the data collection efforts on a per model basis. Alternatively, AHAM, et al. recommended that DOE modify its reporting requirements to simplify the requirements to one report per manufacturer rather than one report per model and only require a report submission if the quantity of service and spare part EPSs exceeds 1,000 units. (AHAM, et al., No. 3 at p.2) AHAM, et al. concluded by stating its belief that the reporting requirements proposed by DOE exceed the authority granted by the EPS Service Parts Act of 2014 and recommended that the reporting requirements be limited to unit shipment volumes as permitted under the Service Parts Act. (AHAM, et al., No. 3 at p.3)

Reporting requirements in this instance serve a variety of important and useful roles, among which include helping DOE assess the impacts of the Service Parts Act's exemption on overall national energy savings. Notwithstanding this fact, DOE recognizes that reporting requirements may create a burden and has modified its proposal from the NOPR to allow manufacturers or domestic importers to report the total annual number of exempt EPSs sold as spare or service parts rather than requiring individual reporting on a per model basis, as suggested by AHAM. Under DOE's revised reporting methodology, manufacturers or importers would only need to track and report the total number of exempt EPSs sold.

DOE also recognizes the reporting burdens for manufacturers that sell only a small number of exempt units. Accordingly, consistent with the authority provided to DOE by the Service Parts Act, DOE will adopt AHAM's suggestion and relieve manufacturers from the sales reporting requirements contained in this final rule provided that the quantity of exempt service and spare part EPSs sold by that manufacturer does not exceed 1,000 units annually. This 1,000 unit threshold will apply to the total number of exempt EPSs sold annually by that manufacturer (including importers) in aggregate and not on a per model basis. Consequently, a manufacturer would not be exempt from the reporting requirements if it sells more than one exempt model of EPS, each of which it sells less than 1,000 of annually, but, in aggregate, the total number of exempt EPSs sold by that manufacturer exceeds 1,000 across all models. DOE is modifying the regulatory text in the CFR to reflect this approach.

IV. Procedural Issues and Regulatory Review A. Review Under Executive Order 12866

The Office of Management and Budget (“OMB”) has determined that certification rulemakings do not constitute “significant regulatory actions” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, 58 FR 51735 (Oct. 4, 1993). Accordingly, this action was not subject to review under the Executive Order by the Office of Information and Regulatory Affairs (“OIRA”) in the Office of Management and Budget.

B. 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 (“IFRA”) 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. As required by Executive Order 13272, “Proper Consideration of Small Entities in Agency Rulemaking,” 67 FR 53461 (August 16, 2002), DOE published procedures and policies on February 19, 2003, to ensure that the potential impacts of its rules on small entities are properly considered during the DOE rulemaking process. 68 FR 7990. DOE has made its procedures and policies available on the Office of the General Counsel's Web site: http://energy.gov/gc/office-general-counsel.

For manufacturers of EPSs, the Small Business Administration (“SBA”) has set a size threshold, which defines those entities classified as “small businesses” for the purposes of the statute. DOE used the SBA's small business size standards to determine whether any small entities would be subject to the requirements of the rule. 65 FR 30836, 30848 (May 15, 2000), as amended at 65 FR 53533, 53544 (September 5, 2000) and codified at 13 CFR part 121. The size standards are listed by North American Industry Classification System (“NAICS”) code and industry description and are available at http://www.sba.gov/content/summary-size-standards-industry. EPS manufacturing is classified under NAICS 335999, “All Other Miscellaneous Electrical Equipment and Component Manufacturing.” The SBA sets a threshold of 500 employees or less for an entity to be considered as a small business for this category. As a preliminary matter, DOE notes that there are no domestic manufacturers of EPSs. Consequently, there are no small business impacts to evaluate for purposes of the Regulatory Flexibility Act.

Notwithstanding the absence of domestic EPS manufacturers, DOE reviewed this final rule under the provisions of the Regulatory Flexibility Act and the procedures and policies published on February 19, 2003. This final rule would incorporate into DOE's regulations a statutorily-prescribed exemption affecting EPSs that manufacturers make available as service or spare parts. The exemption allows manufacturers to maintain and distribute supplies of replacement parts for older equipment without needing to meet the EPS energy conservation standards that have applied since February 10, 2016. This exemption provides manufacturers with flexibility in meeting their warranty and contract obligations in cases where service or spare parts require an EPS. It also relieves manufacturers of the burdens of redesigning and certifying EPSs used for end-use products that are no longer manufactured, which DOE anticipates will save these manufacturers from any significant expenses that would otherwise be used solely to support products that are no longer in production. As for the reporting requirements, DOE is, consistent with comments received from industry participants, adopting an approach that requires only manufacturers who sell 1,000 or more exempt EPSs to report its shipped units—an amount that will considerably lessen any small business-related impacts.

Consistent with its prior incorporation of the previous statutory exemption added by Congress for Class A EPSs made available as service and spare parts, see 10 CFR 430.32(w)(2) (2015), DOE expects any potential impact from its requirement to be minimal. For these reasons, DOE certifies that the final rule would not have a significant economic impact on a substantial number of small entities. Accordingly, DOE has not prepared a regulatory flexibility analysis for this rulemaking. DOE will transmit the certification and supporting statement of factual basis to the Chief Counsel for Advocacy of the SBA for review under 5 U.S.C. 605(b).

C. Review Under the Paperwork Reduction Act of 1995

This rule revises an existing information collection. This information collection request contains:

(1) OMB Control Number: 1910-1400.

(2) Information Collection Request Title: Certification Reports, Compliance Statements, Application for a Test Procedure Waiver, and Recordkeeping for Consumer Products and Commercial/Industrial Equipment Subject to Energy or Water Conservation Standards.

(3) Type of Request: Revision of a Currently Approved Collection.

(4) Purpose: This notice will require external power supply manufacturers to report the number of exempt EPS units sold as part of the annual certification report, which is already required. The annual certification report must be submitted via CCMS, an electronic system for recording and processing certification submissions.

Manufacturers of EPSs must certify to DOE that their products comply with any applicable energy conservation standards. In certifying compliance, manufacturers must test their products according to the DOE test procedures for EPSs including any amendments adopted for those test procedures. DOE has established regulations for the certification and recordkeeping requirements for all covered consumer products and commercial equipment, including external power supplies. See 10 CFR part 429, subpart B. The collection-of-information requirement for certification and recordkeeping is subject to review and approval by OMB under the Paperwork Reduction Act (“PRA”). This requirement has been approved by OMB under OMB Control Number 1910-1400. Public reporting burden for the proposed certification requirement is estimated to average 30 hours per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.

In this final rule, DOE is finalizing requirements for external power supply manufacturers to provide the total number of exempt EPS units sold as service and spare parts for which the manufacturer is claiming exemption from the current standards. The following are DOE's estimates, revised from the value originally proposed in the NOPR, of the time for manufacturers to collect, organize and store the data required by this final rule. As part of this final rule, manufacturers will not be required to provide the total number of exempt EPS units sold for each basic model, and instead will only provide the total number of exempt EPSs sold by that manufacturer. Additionally, manufacturers who sell under 1,000 exempt EPSs will be exempt from reporting requirements. Accordingly, DOE anticipates the impact in burden hours will be reduced from the estimates provided in the NOPR. DOE has increased the cost estimate for the NOPR to a fully burdened labor rate of $100 per hour, consistent with other certification requirements, to account for any skilled labor that may be required. DOE has revised its burden estimates to be consistent with the amendments being adopted in this final rule for reporting. DOE is showing the burden estimates for the individual amendments being adopted today and for the information collection as a whole.

Affected Public with respect to this final rule: Manufacturers of external power supplies that are claiming the spare parts exemption.

Estimated Number of Impacted Manufacturers: 228.

Estimated Time per Record: 4 minutes.

Estimated Total Annual Burden Hours: 15.2 hours.

Estimated Total Annual Cost to Manufacturers: $1520.

After adding the values for this final rule to the existing information collection requirements, the following totals reflect the information collection as a whole:

(5) Annual Estimated Number of Respondents: 2000.

(6) Annual Estimated Number of Total Responses: 20,000.

(7) Annual Estimated Number of Burden Hours: 68,015.2 hours.

(8) Annual Estimated Reporting and Recordkeeping Cost Burden: $6,801,520.

Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB Control Number.

D. Review Under the National Environmental Policy Act of 1969

DOE has determined that this final rule, which would incorporate a recently-enacted exemption into the CFR for EPSs sold as spare or service parts, 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 final rule would adopt changes to the manner in which certain covered equipment would be certified and/or reported, which would not affect the amount, quality or distribution of energy usage, and, therefore, would not result in any environmental impacts. Thus, this rulemaking is covered by Categorical Exclusion A6 (Procedural Rulemaking) under 10 CFR part 1021, subpart D. Accordingly, neither an environmental assessment nor an environmental impact statement is required.

E. Review Under Executive Order 13132

Executive Order 13132, “Federalism,” 64 FR 43255 (August 4, 1999) imposes certain requirements on agencies formulating and implementing policies or regulations that preempt State law or that have Federalism implications. 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 has examined this final rule and has determined that it 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. EPCA governs and prescribes Federal preemption of State regulations as to energy conservation for the products 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.

F. Review Under Executive Order 12988

Regarding the review of existing regulations and the promulgation of new regulations, section 3(a) of Executive Order 12988, “Civil Justice Reform,” 61 FR 4729 (February 7, 1996), imposes on Federal agencies the general duty to adhere to the following requirements: (1) Eliminate drafting errors and ambiguity; (2) write regulations to minimize litigation; (3) provide a clear legal standard for affected conduct rather than a general standard; and (4) promote simplification and burden reduction. 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 sections 3(a) and 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, the final rule meets the relevant standards of Executive Order 12988.

G. 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 likely to result 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 “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 them. On March 18, 1997, DOE published a statement of policy on its process for intergovernmental consultation under UMRA. 62 FR 12820. DOE's policy statement is also available at http://energy.gov/sites/prod/files/gcprod/documents/umra_97.pdf.

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.

H. Review Under the Treasury and General Government Appropriations Act, 1999

Section 654 of the Treasury and General Government Appropriations Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family Policymaking Assessment for any rule that may affect family well-being. This rule would 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.

I. Review Under Executive Order 12630

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

J. Review Under 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 agencies to review most disseminations of information to the public under guidelines established by each agency pursuant to general guidelines issued by OMB. OMB's guidelines were published at 67 FR 8452 (February 22, 2002), and DOE's guidelines were published at 67 FR 62446 (October 7, 2002). DOE has reviewed this final rule under the OMB and DOE guidelines and has concluded that it is consistent with applicable policies in those guidelines.

K. 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 promulgates or is expected to lead to promulgation of a final rule, and that: (1) Is a significant regulatory action under Executive Order 12866, or any successor order; 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 should the proposal be implemented, and of reasonable alternatives to the action and their expected benefits on energy supply, distribution, and use.

This regulatory action to amend the existing certification requirements for EPSs sold as spare parts is not a significant regulatory action under Executive Order 12866. 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.

L. Review Under Section 32 of the Federal Energy Administration Act of 1974

Under section 301 of the Department of Energy Organization Act (Public Law 95-91; 42 U.S.C. 7101), DOE must comply with section 32 of the Federal Energy Administration Act of 1974, as amended by the Federal Energy Administration Authorization Act of 1977. (15 U.S.C. 788; FEAA) Section 32 essentially provides in relevant part that, where a proposed rule authorizes or requires use of commercial standards, the notice of proposed rulemaking must inform the public of the use and background of such standards. In addition, section 32(c) requires DOE to consult with the Attorney General and the Chairman of the Federal Trade Commission (“FTC”) concerning the impact of the commercial or industry standards on competition. This proposal to amend the certification requirements for all covered consumer products does not propose the use of any commercial standards.

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 429

Administrative practice and procedure, Confidential business information, Energy conservation, Reporting and recordkeeping requirements.

10 CFR Part 430

Administrative practice and procedure, Confidential business information, Energy conservation, Household appliances, Imports, Intergovernmental relations, Small businesses.

Issued in Washington, DC, on May 6, 2016. Kathleen B. Hogan, Deputy Assistant Secretary for Energy Efficiency, Energy Efficiency and Renewable Energy.

For the reasons stated in the preamble, DOE amends parts 429 and 430 of chapter II of title 10, Code of Federal Regulations as set forth below:

PART 429—CERTIFICATION, COMPLIANCE, AND ENFORCEMENT FOR CONSUMER PRODUCTS AND COMMERCIAL AND INDUSTRIAL EQUIPMENT 1. The authority citation for part 429 continues to read as follows: Authority:

42 U.S.C. 6291-6317.

2. Section 429.37 is amended by adding paragraphs (b)(3) and (c) to read as follows:
§ 429.37 External power supplies.

(b) * * *

(3) Pursuant to § 429.12(b)(13), a certification report for external power supplies that are exempt from the energy conservation standards at § 430.32(w)(1)(ii) pursuant to § 430.32(w)(2) of this chapter must include the following additional information if, in aggregate, the total number of exempt EPSs sold as spare and service parts by the certifier exceeds 1,000 units across all models: The total number of units of exempt external power supplies sold during the most recent 12-calendar-month period ending on July 31, starting with the annual report due on September 1, 2017.

(c) Exempt external power supplies. (1) For external power supplies that are exempt from energy conservation standards pursuant to § 430.32(w)(2) of this chapter and are not required to be certified pursuant to § 429.12(a) as compliant with an applicable standard, the importer or domestic manufacturer must, no later than September 1, 2017, and annually by each September 1st thereafter, submit a report providing the following information if, in aggregate, the total number of exempt EPSs sold as spare and service parts by the importer or manufacturer exceeds 1,000 units across all models:

(i) The importer or domestic manufacturer's name and address;

(ii) The brand name; and

(iii) The number of units sold during the most recent 12-calendar-month period ending on July 31.

(2) The report must be submitted to DOE in accordance with the submission procedures set forth in § 429.12(h).

PART 430—ENERGY CONSERVATION PROGRAM FOR CONSUMER PRODUCTS 3. The authority citation for part 430 continues to read as follows: Authority:

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

4. Section 430.32 is amended by revising paragraph (w)(2) to read as follows:
§ 430.32 Energy and water conservation standards and their compliance dates.

(w) * * *

(2) A basic model of external power supply is not subject to the energy conservation standards of paragraph (w)(1)(ii) of this section if the external power supply—

(i) Is manufactured during the period beginning on February 10, 2016, and ending on February 10, 2020;

(ii) Is marked in accordance with the External Power Supply International Efficiency Marking Protocol, as in effect on February 10, 2016;

(iii) Meets, where applicable, the standards under paragraph (w)(1)(i) of this section, and has been certified to the Secretary as meeting those standards; and

(iv) Is made available by the manufacturer only as a service part or a spare part for an end-use product that—

(A) Constitutes the primary load; and

(B) Was manufactured before February 10, 2016.

[FR Doc. 2016-11469 Filed 5-13-16; 8:45 am] BILLING CODE 6450-01-P
DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 23 [Docket No. FAA-2016-6567; Special Conditions No. 23-274-SC] Special Conditions: Cessna Aircraft Company, Models 208 and 208B, Caravan Airplanes; As Modified by Peregrine; Installation of Rechargeable Lithium Battery AGENCY:

Federal Aviation Administration (FAA), DOT.

ACTION:

Final special conditions; request for comments.

SUMMARY:

These special conditions are issued for the Cessna Aircraft Company, Models 208 and 208B Caravan airplanes. This airplane, as modified by Peregrine, will have a novel or unusual design feature associated with the use of a replacement option of a lithium battery instead of nickel-cadmium (Ni-Cd) and lead-acid rechargeable batteries. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for this design feature. These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.

DATES:

The effective date of these special conditions is May 16, 2016. We must receive your comments by June 15, 2016.

ADDRESSES:

Send comments identified by docket number FAA-2016-6567 using any of the following methods:

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

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

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

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

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

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

FOR FURTHER INFORMATION CONTACT:

Ruth Hirt, Federal Aviation Administration, Small Airplane Directorate, Aircraft Certification Service, ACE-114, 901 Locust, Room 301, Kansas City, MO 64106; telephone (816) 329-4108, facsimile (816) 329-4090.

SUPPLEMENTARY INFORMATION:

The FAA has determined, in accordance with 5 U.S.C. 553(b)(3)(B) and 553(d)(3), that notice and opportunity for prior public comment hereon are unnecessary because the substance of this special condition has been subject to the public comment process in several prior instances with no substantive comments received. The FAA, therefore, finds that good cause exists for making these special conditions effective upon issuance.

Special
  • condition
  • number
  • Company/airplane model
    23-269-SC1 Honda Aircraft Company Model HA-420. 23-236-SC2 Cessna Aircraft Company Model 525C (CJ4). 23-249-SC3 Cessna Aircraft Company Model 525 Citation. 1http://rgl.faa.gov/Regulatory_and_Guidance_Library/rgSC.nsf/0/673E1A183F208FF186257EC90042DD79?OpenDocument&Highlight=lithium%20ion%20battery%20installation. 2http://rgl.faa.gov/Regulatory_and_Guidance_Library/rgSC.nsf/0/83608DAA4B3E5D7A8625761D004EDE7B?OpenDocument&Highlight=lithium%20ion%20battery%20installation. 3http://rgl.faa.gov/Regulatory_and_Guidance_Library/rgSC.nsf/0/BBFDE3920E2AFB1D862577700046E311?OpenDocument&Highlight=lithium%20ion%20battery%20installation.
    Comments Invited

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

    We will consider all comments we receive on or before the closing date for comments. We will consider comments filed late if it is possible to do so without incurring expense or delay. We may change these special conditions based on the comments we receive.

    Background

    On March 25, 2015, Peregrine applied for a supplemental type certificate (STC) to install a rechargeable lithium battery on the Cessna Models 208 and 208B Caravan airplanes. Both the 208 and 208B are normal category airplanes, powered by a single-turbine engine that drives an aircraft propeller, with passenger seating up to eleven (11) and a maximum takeoff weight of 8,000 and 8,750 pounds respectively.

    The current regulatory requirements for part 23 airplanes do not contain adequate requirements for the application of rechargeable lithium batteries in airborne applications. This type of battery possesses certain failure and operational characteristics with maintenance requirements that differ significantly from that of the Ni-Cd and lead-acid rechargeable batteries currently approved in other normal, utility, acrobatic, and commuter category airplanes. Therefore, the FAA is proposing this special condition to address (1) all characteristics of the rechargeable lithium batteries and their installation that could affect safe operation of the modified 208 and 208B airplanes, and (2) appropriate Instructions for Continued Airworthiness (ICAW) that include maintenance requirements to ensure the availability of electrical power from the batteries when needed.

    Type Certification Basis

    Under the provisions of Title 14, Code of Federal Regulations (CFR) 21.101, Peregrine must show that the 208 and 208B airplanes, as changed, continue to meet the applicable provisions of the regulations incorporated by reference in Type Certificate Data Sheet No. A37CE, or the applicable regulations in effect on the date of application for the change.

    If the Administrator finds that the applicable airworthiness regulations (i.e., 14 CFR part 23) do not contain adequate or appropriate safety standards for the 208 and 208B airplanes because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

    In addition to the applicable airworthiness regulations and special conditions, the 208 and 208B airplanes must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34 and the noise certification requirements of 14 CFR part 36.

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

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

    Novel or Unusual Design Features

    The Cessna Models 208 and 208B airplanes will incorporate the following novel or unusual design features:

    The installation of a rechargeable lithium battery as a main or engine start aircraft battery.

    Discussion

    The applicable part 23 airworthiness regulations governing the installation of batteries in general aviation airplanes, including § 23.1353, were derived from Civil Air Regulations (CAR) 3 as part of the recodification that established 14 CFR part 23. The battery requirements, which are identified in § 23.1353, were a rewording of the CAR requirements that did not add any substantive technical requirements. An increase in incidents involving battery fires and failures that accompanied the increased use of Ni-Cd batteries in aircraft resulted in rulemaking activities on the battery requirements for transport category airplanes. These regulations were incorporated into § 23.1353(f) and (g), which apply only to Ni-Cd battery installations.

    The introduction of lithium batteries into aircraft raises some concern about associated battery or cell monitoring systems and the impact to the electrical system when monitoring components fail. Associated battery or cell monitoring systems (e.g., temperature, state of charge, etc.) should be evaluated with respect the expected extremes in the aircraft operating environment.

    Lithium batteries typically have different electrical impedance characteristics than Ni-Cd or lead-acid batteries. Peregrine needs to evaluate other components of the aircraft electrical system with respect to these characteristics.

    Presently, there is limited experience with use of rechargeable lithium batteries and rechargeable lithium battery systems in applications involving commercial aviation. However, other users of this technology, ranging from personal computers, wireless telephone manufacturers to the electric vehicle industry, have noted safety problems with rechargeable lithium batteries. These problems include overcharging, over-discharging, flammability of cell components, cell internal defects, and during exposure to extreme temperatures that are described in the following paragraphs.

    1. Overcharging: In general, rechargeable lithium batteries are significantly more susceptible to internal failures that can result in self-sustaining increases in temperature and pressure (e.g., thermal runaway) than their Ni-Cd or lead-acid counterparts. This is especially true for overcharging which causes heating and destabilization of the components of the cell, leading to the formation (by plating) of highly unstable metallic lithium. The metallic lithium can ignite, resulting in a self-sustaining fire or explosion. Finally, the severity of thermal runaway due to overcharging increases with increasing battery capacity due to the higher amount of electrolyte in large batteries.

    2. Over-discharging: Discharge of some types of rechargeable lithium battery cells beyond the manufacturer's recommended specification can cause corrosion of the electrodes of the cell, resulting in loss of battery capacity that cannot be reversed by recharging. This loss of capacity may not be detected by the simple voltage measurements commonly available to flight crews as a means of checking battery status—a problem shared with Ni-Cd batteries. In addition, over-discharging has the potential to lead to an unsafe condition (creation of dendrites that could result in internal short circuit during the recharging cycle).

    3. Flammability of Cell Components: Unlike Ni-Cd and lead-acid batteries, some types of rechargeable lithium batteries use liquid electrolytes that are flammable. The electrolyte can serve as a source of fuel for an external fire, if there is a breach of the battery container.

    4. Cell Internal Defects: The rechargeable lithium batteries and rechargeable battery systems have a history of undetected cell internal defects. These defects may or may not be detected during normal operational evaluation, test and validation. This may lead to an unsafe condition during in service operation.

    5. Extreme Temperatures: Exposure to an extreme temperature environment has the potential to create major hazards. Care must be taken to ensure that the lithium battery remains within the manufacturer's recommended specification.

    These problems experienced by users of lithium batteries raise concern about the use of lithium batteries in aviation. The intent of the proposed special condition is to establish appropriate airworthiness standards for lithium battery installations in the 208 and 208B airplanes and to ensure, as required by §§ 23.1309 and 23.601, that these battery installations are not hazardous or unreliable.

    Applicability

    The special conditions are applicable to the 208 and 208B airplanes. Should Peregrine apply at a later date for an STC to modify any other model included on Type Certificate No. A37CE to incorporate the same novel or unusual design feature, the special conditions would apply to that model as well.

    Conclusion

    This action affects only certain novel or unusual design features on the 208 and 208B airplanes. It is not a rule of general applicability and affects only the applicant who applied to the FAA for approval of these features on the airplane.

    The substance of these special conditions has been subjected to the notice and comment period in several prior instances and has been derived without substantive change from those previously issued. It is unlikely that prior public comment would result in a significant change from the subject contained herein. Therefore, notice and opportunity for prior public comment hereon are unnecessary and the FAA finds good cause, in accordance with 5 U.S.C. 553(b)(3)(B) and 553(d)(3), making these special conditions effective upon issuance. The FAA is requesting comments to allow interested persons to submit views that may not have been submitted in response to the prior opportunities for comment described above.

    List of Subjects in 14 CFR Part 23

    Aircraft, Aviation safety, Signs and symbols.

    Citation The authority citation for these special conditions is as follows: Authority:

    49 U.S.C. 106(g), 40113 and 44701; 14 CFR 21.16 and 21.101; and 14 CFR 11.38 and 11.19.

    The Special Conditions Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for Cessna Aircraft Company, 208 and 208B Caravan airplanes modified by Peregrine. 1. Installation of Lithium Battery

    The FAA states in this Notice that the following special conditions be applied to lithium battery installations on the 208 and 208B airplanes in lieu of the requirements § 23.1353(a)(b)(c)(d)(e), amendment 49.

    Lithium battery installations on the 208 and 208B airplanes must be designed and installed as follows:

    a. Safe cell temperatures and pressures must be maintained during any probable charging or discharging condition, or during any failure of the charging or battery monitoring system not shown to be extremely remote. The lithium battery installation must be designed to preclude explosion or fire in the event of those failures.

    b. Lithium batteries must be designed to preclude the occurrence of self-sustaining, uncontrolled increases in temperature or pressure.

    c. No explosive or toxic gasses emitted by any lithium battery in normal operation or as the result of any failure of the battery charging or monitoring system, or battery installation not shown to be extremely remote, may accumulate in hazardous quantities within the airplane.

    d. Lithium batteries that contain flammable fluids must comply with the flammable fluid fire protection requirements of 14 CFR 23.863(a) through (d).

    e. No corrosive fluids or gases that may escape from any lithium battery may damage airplane structure or essential equipment.

    f. Each lithium battery installation must have provisions to prevent any hazardous effect on structure or essential systems that may be caused by the maximum amount of heat the battery can generate during a short circuit of the battery or of its individual cells.

    g. Lithium battery installations must have—

    (1) A system to control the charging rate of the battery automatically to prevent battery overheating or overcharging, or

    (2) A battery temperature sensing and over-temperature warning system with a means for automatically disconnecting the battery from its charging source in the event of an over-temperature condition or,

    (3) A battery failure sensing and warning system with a means for automatically disconnecting the battery from its charging source in the event of battery failure.

    h. Any lithium battery installation functionally required for safe operation of the airplane, must incorporate a monitoring and warning feature that will provide an indication to the appropriate flight crewmembers, whenever the capacity and state of charge of the batteries have fallen below levels considered acceptable for dispatch of the airplane.

    i. The ICAW must contain recommended manufacturer's maintenance and inspection requirements to ensure that batteries, including single cells, meet a functionally safe level essential to the aircraft's continued airworthiness.

    (1) The ICAW must contain operating instructions and equipment limitations in an installation maintenance manual.

    (2) The ICAW must contain installation procedures and limitations in a maintenance manual, sufficient to ensure that cells or batteries, when installed according to the installation procedures, still meet safety functional levels essential to the aircraft's continued airworthiness. The limitations must identify any unique aspects of the installation.

    (3) The ICAW must contain corrective maintenance procedures to check battery capacity at manufacturer's recommended inspection intervals.

    (4) The ICAW must contain scheduled servicing information to replace batteries at manufacturer's recommended replacement time.

    (5) The ICAW must contain maintenance and inspection requirements how to check visually for battery and charger degradation.

    j. Batteries in a rotating stock (spares) that have degraded charge retention capability or other damage due to prolonged storage must be checked at manufacturer's recommended inspection intervals.

    k. If the lithium battery application contains software and/or complex hardware, in accordance with AC 20-115 1 and AC 20-152,2 they should be developed to the standards of DO-178 for software and DO-254 for complex hardware.

    1http://rgl.faa.gov/Regulatory_and_Guidance_Library/rgAdvisoryCircular.nsf/0/E35FBC0060E2159186257BBE00719FB3?OpenDocument&Highlight=ac%2020-115b.

    2http://rgl.faa.gov/Regulatory_and_Guidance_Library/rgAdvisoryCircular.nsf/0/6D4AE0BF1BDE3579862570360055D119?OpenDocument&Highlight=ac%2020-152.

    Compliance with the requirements of this Special Condition must be shown by test or analysis, with the concurrence of the Wichita Aircraft Certification Office.

    Issued in Kansas City, Missouri on May 9, 2016. Pat Mullen, Acting Manager, Small Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2016-11502 Filed 5-13-16; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2015-2462; Directorate Identifier 2014-NM-224-AD; Amendment 39-18515; AD 2016-10-04] RIN 2120-AA64 Airworthiness Directives; The Boeing Company Airplanes AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Final rule.

    SUMMARY:

    We are adopting a new airworthiness directive (AD) for certain The Boeing Company Model 737-100, -200, -200C, -300, -400, and -500 series airplanes. This AD was prompted by reports of cracked antenna support channels, skin cracking underneath the number 2 very high frequency (VHF) antenna, and cracking in the frames attached to the internal support structure. This AD requires repetitive inspections to determine the condition of the skin and the internal support structure, and follow-on actions including corrective action as necessary. We are issuing this AD to detect and correct skin cracking of the fuselage. Such cracking could result in separation of the number 2 VHF antenna from the airplane and rapid depressurization of the cabin.

    DATES:

    This AD is effective June 20, 2016.

    The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of June 20, 2016.

    ADDRESSES:

    For service information identified in this final rule, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P.O. Box 3707, MC 2H-65, Seattle, WA 98124-2207; telephone 206-544-5000, extension 1; fax 206-766-5680; Internet https://www.myboeingfleet.com. You may view this referenced service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221. It is also available on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-2462.

    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-2015-2462; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the regulatory evaluation, any comments received, and other information. The address for the Docket Office (phone: 800-647-5527) is Document Management Facility, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.

    FOR FURTHER INFORMATION CONTACT:

    Jennifer Tsakoumakis, Aerospace Engineer, Airframe Branch, ANM-120L, FAA, Los Angeles Aircraft Certification Office (ACO), 3960 Paramount Boulevard, Lakewood, CA 90712-4137; phone: 562-627-5264; fax: 562-627-5210; email: [email protected]

    SUPPLEMENTARY INFORMATION:

    Discussion

    We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain The Boeing Company Model 737-100, -200, -200C, -300, -400, and -500 series airplanes. The NPRM published in the Federal Register on July 20, 2015 (80 FR 42756) (“the NPRM”). The NPRM was prompted by reports of cracked antenna support channels, skin cracking underneath the number 2 VHF antenna, and cracking in the frames attached to the internal support structure. The NPRM proposed to require repetitive inspections to determine the condition of the skin and the internal support structure, and follow-on actions including corrective action as necessary. We are issuing this AD to detect and correct skin cracking of the fuselage. Such cracking could result in separation of the number 2 VHF antenna from the airplane and rapid depressurization of the cabin.

    Comments

    We gave the public the opportunity to participate in developing this AD. The following presents the comments received on the NPRM and the FAA's response to each comment. Boeing concurred with the NPRM.

    Request To Correct a Typographical Error in Paragraph (h)(4) of the Proposed AD

    Southwest Airlines requested that we correct a typographical error in paragraph (h)(4) of the proposed AD, which states that accomplishment of the preventative modification terminates the inspection required by “paragraphs (g), (g)(1), and (h)(2) of the AD.” Southwest Airlines noted that the NPRM does not contain paragraph (g)(1). Southwest Airlines concluded that this appears to be a typographical error and the references to paragraphs (g) and (g)(1) of the proposed AD should be to paragraphs (h) and (h)(1) of the proposed AD, similar to what is stated in paragraph (k)(3) of the proposed AD.

    British Airways stated that it has identified a potential contradiction between paragraphs (h)(4) and (k)(3) of the proposed AD. British Airways stated that paragraph (h)(4) of the proposed AD refers to paragraph (h)(2), whereas paragraph (k)(3) of the proposed AD refers to paragraphs (h), (h)(1), and (h)(2) of the proposed AD.

    We agree to revise paragraph (h)(4) of this AD because there is a typographical error. We have changed the references in paragraph (h)(4) of this AD to specify paragraphs (h), (h)(1), and (h)(2) of this AD. This change resolves the contradiction noted by British Airways.

    Request a Provision To Terminate Inspections Required by Paragraph (h) of the Proposed AD

    Southwest Airlines requested that we provide a provision to terminate the inspections required by paragraph (h) of the proposed AD for previously installed repairs that have received FAA approval. The commenter stated that these repairs would inhibit the inspections required by paragraph (h) of this AD.

    We do not agree with the commenter's request because previously installed FAA-approved repairs may not have been designed to address the specified unsafe condition identified in this AD. We understand that some of these repairs may not allow inspection of the area specified in the AD; in those cases, the operator must request approval for an alternative method of compliance (AMOC) according to paragraph (m) of this AD. We have not revised this AD in this regard.

    Request To Add Terminating Action to Paragraphs (h)(1) and (h)(2) of the Proposed AD

    British Airways asked why the terminating action specified in paragraph (k)(3) of the proposed AD is not included in the text “until the accomplishment of paragraphs” references in paragraphs (h)(1) and (h)(2) of the proposed AD. We infer British Airways is requesting that we revise paragraphs (h)(1) and (h)(2) of the proposed AD.

    We agree with the commenter because installation of the preventive modification in accordance with paragraph (k)(3) of this AD is acceptable for terminating the repetitive inspections. In addition, we note the reference to paragraph (k)(1) of this AD in paragraph (h)(2) of this AD is redundant. We have made the following changes to this AD:

    • In paragraph (h)(1) of this AD, we specify to repeat the inspections “until the accomplishment of paragraph (k)(1), (k)(2), or (k)(3) of this AD, as applicable.”

    • In paragraph (h)(2) of this AD, we specify to repeat the inspections “until the accomplishment of paragraph (k)(2) or (k)(3) of this AD, as applicable.”

    Request To Correct the Language in Paragraph (h)(2) of the Proposed AD

    Southwest Airlines requested a correction to the language in paragraph (h)(2) of the proposed AD to add the term “as applicable” after the listed inspections. Southwest Airlines stated that there are multiple sections of Part 2 of the Accomplishment Instructions of Boeing Special Attention Service Bulletin 737-53-1159, Revision 1, dated October 20, 2014. Southwest Airlines noted that each group/configuration has its own Part 2 instructions and that Groups 3 through 6, Configurations 2 and 3, do not contain instructions for internal detailed inspections or internal high frequency eddy current inspections.

    We agree with the commenter because certain inspections are applicable to only certain configurations. We have added the language “as applicable” to paragraph (h)(2) of this AD.

    Request To Revise Certain Paragraphs To Include a Terminating Action for the Preventive Modification

    Southwest Airlines requested that we revise paragraph (k)(2) of the proposed AD to include a statement that accomplishment of the repair specified in paragraph (h)(3) of the proposed AD also terminates the preventive modification specified in paragraph (h)(4) of the proposed AD. Southwest Airlines stated that there is no language in the NPRM or Boeing Special Attention Service Bulletin 737-53-1159, Revision 1, dated October 20, 2014, that states whether the preventative modification is required after the repair is installed.

    We do not agree with the commenter's request because, for some airplane configurations, the repair only installs an external skin doubler and the preventative modification includes replacement of the internal support structure. For some airplane configurations, the preventive modification specified in Part 4 of the Accomplishment Instructions of Boeing Special Attention Service Bulletin 737-53-1159, Revision 1, dated October 20, 2014, is required after installation of the repair specified in Part 3 of the Accomplishment Instructions of Boeing Special Attention Service Bulletin 737-53-1159, Revision 1, dated October 20, 2014. We have not revised this AD in this regard.

    Request To Provide Statement for Terminating Actions in Paragraph (k)(2) of the Proposed AD

    Southwest Airlines requested that we revise paragraph (k)(2) of the proposed AD to specify the repair also terminates the initial inspections in paragraph (h) of the proposed AD. Southwest Airlines stated that the current statement in paragraph (k)(2) of the proposed AD does not address a terminating action for the initial inspection specified in paragraphs (h)(1) and (h)(2) of the proposed AD for aircraft that have previously installed the repair specified in paragraph (h)(3) of the proposed AD.

    We agree with the commenter's request because repairs installed in accordance with Part 3 of the Accomplishment Instructions of Boeing Special Attention Service Bulletin 737-53-1159, Revision 1, dated October 20, 2014, prior to the effective date of this AD, will not allow accomplishment of the initial inspections as specified in paragraph (h) of this AD. We revised paragraph (k)(2) of this AD to specify that accomplishment of the repair required by paragraph (h)(3) of this AD terminates the initial and repetitive inspections required in paragraphs (h), (h)(1), and (h)(2) of this AD.

    Effect of Winglets on Accomplishment of the Proposed Actions

    Aviation Partners Boeing stated that accomplishing Supplemental Type Certificate (STC) ST01219SE (http://rgl.faa.gov/Regulatory_and_Guidance_Library/rgstc.nsf/0/be866b732f6cf31086257b9700692796/$FILE/ST01219SE.pdf) does not affect the actions specified in the NPRM.

    We concur with the commenter. We have redesignated paragraph (c) of the proposed AD as paragraph (c)(1) of this AD and added new paragraph (c)(2) to this AD to state that installation of STC ST01219SE does not affect the ability to accomplish the actions required by this AD. Therefore, for airplanes on which STC ST01219SE is installed, a “change in product” AMOC approval request is not necessary to comply with the requirements of 14 CFR 39.17.

    Change to Paragraph (j) of This AD

    We have revised paragraph (j) of this AD to clarify that the post-repair and post-modification inspections are airworthiness limitations that are required by maintenance and operational rules; therefore, these inspections are not required by this AD.

    Conclusion

    We reviewed the relevant data, considered the comments received, and determined that air safety and the public interest require adopting this AD with the changes described previously and minor editorial changes. We have determined that these minor changes:

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

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

    We also determined that these changes will not increase the economic burden on any operator or increase the scope of this AD.

    Related Service Information Under 1 CFR Part 51

    We reviewed Boeing Special Attention Service Bulletin 737-53-1159, Revision 1, dated October 20, 2014. The service information describes procedures for repetitive inspections to determine the condition of the skin and the internal support structure, and follow-on actions including corrective action as necessary. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

    Costs of Compliance

    We estimate that this AD affects 609 airplanes of U.S. registry.

    We estimate the following costs to comply with this AD:

    Estimated Costs Action Labor cost Parts cost Cost per product Cost on U.S. operators Inspections 33 work-hours × $85 per hour = $2,805 per inspection cycle $0 $2,805 per inspection cycle $1,708,245 per inspection cycle.

    We estimate the following costs to do any necessary repairs/modifications that would be required based on the results of the inspections. We have no way of determining the number of aircraft that might need these repairs/modifications.

    On-Condition Costs Action Labor cost Parts cost Cost per
  • product
  • Repair and preventive modification 63 work-hours × $85 per hour = $5,355 $10,432 $15,787

    According to the manufacturer, some of the costs of this AD may be covered under warranty, thereby reducing the cost impact on affected individuals. We do not control warranty coverage for affected individuals. As a result, we have included all costs in our cost estimate.

    Authority for This Rulemaking

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

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

    Regulatory Findings

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

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

    (1) Is not a “significant regulatory action” under Executive Order 12866,

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

    (3) Will not affect intrastate aviation in Alaska, and

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

    List of Subjects in 14 CFR Part 39

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

    Adoption of the Amendment

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

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

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): 2016-10-04 The Boeing Company: Amendment 39-18515; Docket No. FAA-2015-2462; Directorate Identifier 2014-NM-224-AD. (a) Effective Date

    This AD is effective June 20, 2016.

    (b) Affected ADs

    None.

    (c) Applicability

    (1) This AD applies to The Boeing Company Model 737-100, -200, -200C, -300, -400, and -500 series airplanes, certificated in any category, as identified in Boeing Special Attention Service Bulletin 737-53-1159, Revision 1, dated October 20, 2014.

    (2) Installation of Supplemental Type Certificate (STC) ST01219SE (http://rgl.faa.gov/Regulatory_and_Guidance_Library/rgstc.nsf/0/be866b732f6cf31086257b9700692796/$FILE/ST01219SE.pdf) does not affect the ability to accomplish the actions required by this AD. Therefore, for airplanes on which STC ST01219SE is installed, a “change in product” alternative method of compliance (AMOC) approval request is not necessary to comply with the requirements of 14 CFR 39.17.

    (d) Subject

    Air Transport Association (ATA) of America Code 53, Fuselage.

    (e) Unsafe Condition

    This AD was prompted by reports of cracked antenna support channels, skin cracking underneath the number 2 VHF antenna, and cracking in the frames attached to the internal support structure. We are issuing this AD to detect and correct skin cracking of the fuselage. Such cracking could result in separation of the number 2 VHF antenna from the airplane and rapid depressurization of the cabin.

    (f) Compliance

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

    (g) Inspection and Follow-On Actions: Group 1

    For airplanes identified as Group 1 in Boeing Special Attention Service Bulletin 737-53-1159, Revision 1, dated October 20, 2014: Within 120 days after the effective date of this AD, inspect for cracking at the number 2 VHF antenna location, and do all applicable follow-on actions, using a method approved in accordance with the procedures specified in paragraph (m) of this AD.

    (h) Inspection and Follow-On Actions: Groups 2 Through 6, Configurations 1 Through 3

    For airplanes identified as Groups 2 through 6, Configurations 1 through 3 in Boeing Special Attention Service Bulletin 737-53-1159, Revision 1, dated October 20, 2014: Within 1,250 flight cycles after the effective date of this AD, do an external detailed inspection for cracking of the fuselage skin, as applicable, and do all applicable corrective actions, in accordance with Part 1 of the Accomplishment Instructions of Boeing Special Attention Service Bulletin 737-53-1159, Revision 1, dated October 20, 2014. Thereafter, at the applicable time specified in paragraph 1.E., “Compliance,” of Boeing Special Attention Service Bulletin 737-53-1159, Revision 1, dated October 20, 2014, except as required by paragraph (l)(1) of this AD: Do all applicable actions specified in paragraphs (h)(1) through (h)(4) of this AD.

    (1) Repeat the Part 1 inspections specified in paragraph (h) of this AD until the accomplishment of paragraph (k)(1), (k)(2), or (k)(3) of this AD, as applicable.

    (2) Inspect for cracking at the number 2 VHF antenna location using internal and external detailed inspections, internal and external high frequency eddy current (HFEC) inspections, and an HFEC open-hole inspection, as applicable, in accordance with Part 2 of the Accomplishment Instructions of Boeing Special Attention Service Bulletin 737-53-1159, Revision 1, dated October 20, 2014. Repeat the inspections until the accomplishment of paragraph (k)(2) or (k)(3) of this AD, as applicable.

    (3) Repair any crack found, in accordance with Part 3 of the Accomplishment Instructions of Boeing Special Attention Service Bulletin 737-53-1159, Revision 1, dated October 20, 2014, except as required by paragraph (l)(2) of this AD.

    (4) Do a preventive modification, in accordance with Part 4 of the Accomplishment Instructions of Boeing Special Attention Service Bulletin 737-53-1159, Revision 1, dated October 20, 2014, except as specified in paragraph (l)(2) of this AD. The accomplishment of this preventive modification terminates the inspections required by paragraphs (h), (h)(1), and (h)(2) of this AD.

    (i) Inspection and Follow-On Actions: Groups 3 Through 6, Configuration 4

    For airplanes identified as Groups 3 through 6, Configuration 4, in Boeing Special Attention Service Bulletin 737-53-1159, Revision 1, dated October 20, 2014: At the applicable time specified in table 10 of paragraph 1.E., “Compliance,” of Boeing Special Attention Service Bulletin 737-53-1159, Revision 1, dated October 20, 2014, except as required by paragraph (l)(1) of this AD, do an external detailed inspection for cracking at the outer row of fasteners common to the internal repair doubler, and do an internal general visual inspection for cracking on the modified internal support structure of the number 2 VHF antenna, skin, and surrounding stringers, channel, and frames, in accordance with the Accomplishment Instructions of Boeing Special Attention Service Bulletin 737-53-1159, Revision 1, dated October 20, 2014.

    (1) If any cracking is found, before further flight, repair using a method approved in accordance with the procedures specified in paragraph (m) of this AD.

    (2) If no cracking is found, repeat the inspections at the time specified in table 10 of paragraph 1.E., “Compliance,” of Boeing Special Attention Service Bulletin 737-53-1159, Revision 1, dated October 20, 2014.

    (j) Post Repair/Post Modification Inspections

    Tables 7 through 9 of paragraph 1.E., “Compliance,” of Boeing Special Attention Service Bulletin 737-53-1159, Revision 1, dated October 20, 2014, specify post-repair and post-modification airworthiness limitation inspections in compliance with 14 CFR 25.571(a)(3) at the repaired and modified locations, which support compliance with 14 CFR 121.1109(c)(2) or 129.109(b)(2). As airworthiness limitations, these inspections are required by maintenance and operational rules. It is therefore unnecessary to mandate them in this AD. Deviations from these inspections require FAA approval, but do not require an alternative method of compliance.

    (k) Terminating Action Provisions

    The following describes terminating action for the airplane groups and configurations, as identified in Boeing Special Attention Service Bulletin 737-53-1159, Revision 1, dated October 20, 2014.

    (1) For airplanes in Group 2, Configuration 2; and Groups 3 through 6, Configuration 2: Accomplishment of the inspections specified in paragraph (h)(2) of this AD terminates the repetitive inspection requirements of paragraph (h)(1) of this AD.

    (2) For airplanes in Group 2, Configuration 1; and Groups 3 through 6, Configurations 1, 2, and 3: Accomplishment of the repair specified in paragraph (h)(3) of this AD terminates the initial and repetitive inspections specified in paragraphs (h), (h)(1), and (h)(2) of this AD.

    (3) For airplanes in Group 2, Configuration 1; and Groups 3 through 6, Configurations 1 and 3: Accomplishment of the preventive modification specified in paragraph (h)(4) of this AD terminates the initial and repetitive inspections specified in paragraphs (h), (h)(1), and (h)(2) of this AD.

    (l) Exception to Service Bulletin Specifications

    (1) Where Boeing Special Attention Service Bulletin 737-53-1159, Revision 1, dated October 20, 2014, specifies a compliance time “after the Revision 1 date of this service bulletin,” this AD requires compliance within the specified compliance time after the effective date of this AD.

    (2) Where Boeing Special Attention Service Bulletin 737-53-1159, Revision 1, dated October 20, 2014, specifies to contact Boeing for appropriate action, and specifies that action as “RC” (Required for Compliance): Before further flight, repair the cracking using a method approved in accordance with the procedures specified in paragraph (m) of this AD.

    (m) Alternative Methods of Compliance (AMOCs)

    (1) The Manager, Los Angeles Aircraft Certification Office (ACO), FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the ACO, send it to the attention of the person identified in paragraph (n) of this AD. Information may be emailed to: [email protected]

    (2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.

    (3) An AMOC that provides an acceptable level of safety may be used for any repair, modification, or alteration required by this AD if it is approved by Boeing Commercial Airplanes Organization Designation Authorization (ODA) that has been authorized by the Manager, Los Angeles ACO, to make those findings. To be approved, the repair method, modification deviation, or alteration deviation must meet the certification basis of the airplane, and the approval must specifically refer to this AD.

    (4) Except as required by paragraph (l)(2) of this AD, for service information that contains steps that are labeled as Required for Compliance (RC), the provisions of paragraphs (m)(4)(i) and (m)(4)(ii) apply.

    (i) The steps labeled as RC, including substeps under an RC step and any figures identified in an RC step, must be done to comply with the AD. An AMOC is required for any deviations to RC steps, including substeps and identified figures.

    (ii) Steps not labeled as RC may be deviated from using accepted methods in accordance with the operator's maintenance or inspection program without obtaining approval of an AMOC, provided the RC steps, including substeps and identified figures, can still be done as specified, and the airplane can be put back in an airworthy condition.

    (n) Related Information

    For more information about this AD, contact Jennifer Tsakoumakis, Aerospace Engineer, Airframe Branch, ANM-120L, FAA, Los Angeles ACO, 3960 Paramount Boulevard, Lakewood, CA 90712-4137; phone: 562-627-5264; fax: 562-627-5210; email: [email protected]

    (o) Material Incorporated by Reference

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

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

    (i) Boeing Special Attention Service Bulletin 737-53-1159, Revision 1, dated October 20, 2014.

    (ii) Reserved.

    (3) For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P.O. Box 3707, MC 2H-65, Seattle, WA 98124-2207; telephone 206-544-5000, extension 1; fax 206-766-5680; Internet https://www.myboeingfleet.com.

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

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

    Issued in Renton, Washington, on May 4, 2016. Michael Kaszycki, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2016-11200 Filed 5-13-16; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2015-3141; Directorate Identifier 2014-NM-242-AD; Amendment 39-18516; AD 2016-10-05] RIN 2120-AA64 Airworthiness Directives; The Boeing Company Airplanes AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Final rule.

    SUMMARY:

    We are adopting a new airworthiness directive (AD) for all The Boeing Company Model 757 airplanes. This AD was prompted by a report of cracking in the fuselage frame. This AD requires inspections for cracking in the fuselage frame, left and right sides, and repair if necessary. We are issuing this AD to detect and correct fuselage frame fatigue cracking. Such cracking could result in loss of structural integrity and the inability to sustain loading conditions.

    DATES:

    This AD is effective June 20, 2016.

    The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of June 20, 2016.

    ADDRESSES:

    For service information identified in this final rule, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P.O. Box 3707, MC 2H-65, Seattle, WA 98124-2207; telephone 206-544-5000, extension 1; fax 206-766-5680; Internet https://www.myboeingfleet.com. You may view this referenced service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221. It is also available on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-3141.

    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-2015-3141; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the regulatory evaluation, any comments received, and other information. The address for the Docket Office (phone: 800-647-5527) is Docket Management Facility, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.

    FOR FURTHER INFORMATION CONTACT:

    Roger Durbin, Aerospace Engineer, Airframe Branch, ANM-120L, FAA, Los Angeles Aircraft Certification Office (ACO), 3960 Paramount Boulevard, Lakewood, CA 90712-4137; phone: 562-627-5233; fax: 562-627-5210; email: [email protected].

    SUPPLEMENTARY INFORMATION: Discussion

    We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all The Boeing Company Model 757 airplanes. The NPRM published in the Federal Register on August 19, 2015 (80 FR 50230) (“the NPRM”). The NPRM was prompted by reports of cracking in the fuselage frame at Station (STA) 1440, stringer 24L. The NPRM proposed to require inspections for cracking in the fuselage frame, left and right sides, and repair if necessary. We are issuing this AD to detect and correct fuselage frame fatigue cracking. Such cracking could result in loss of structural integrity and the inability to sustain loading conditions.

    Comments

    We gave the public the opportunity to participate in developing this AD. The following presents the comments received on the NPRM and the FAA's response to each comment.

    Request To Revise Paragraph (g) for Clarity and Consistency

    Boeing requested that we revise paragraph (g) of the proposed AD to change it from “frames at stringer 24 and stringer 25, left and right sides,” to state, “frames in Section 43 at stringer 25, left and right sides, and frames in Section 46 at stringer 24, left and right sides.”

    We agree with the comment as it adds clarity and makes the AD consistent with the required Accomplishment Instructions of Boeing Alert Service Bulletin 757-53A0099, dated September 18, 2014. We have revised the introductory text to paragraph (g) of this AD accordingly.

    Request To Revise Paragraph (g)(1) To Make Exceptions for Repaired Areas

    Boeing requested that we revise paragraph (g)(1) of the proposed AD from “repeat the inspections at intervals not to exceed 12,000 flight cycles,” to state, “repeat the inspections of frame areas at intervals not to exceed 12,000 flight cycles in areas that have not been repaired as a result of this service bulletin.”

    We disagree with the commenter's proposal to make exceptions for areas repaired using the procedures described in the service bulletin, where we assume that the commenter is referring to Boeing Alert Service Bulletin 757-53A0099, dated September 18, 2014. We have not received repair data for cracks detected as a result of the inspections required by this AD, and therefore cannot make a determination that any such repair is terminating action for the required inspections. We will consider requests for alternative methods of compliance (AMOCs) with supporting repair data, which may include termination of the required inspections, or alternate inspection intervals and methods, as required, to address the unsafe condition.

    Request To Delay AD for Service Bulletin Revision

    United Airlines and United Parcel Service requested to delay the AD until approved repair information could be included in a revision of Boeing Alert Service Bulletin 757-53A0099, dated September 18, 2014. One commenter noted that its cargo operations often required frame repairs and the lack of approved repair configurations would require unnecessary AMOC requests.

    We do not agree to delay issuance of this final rule for a revision to Boeing Alert Service Bulletin 757-53A0099, dated September 18, 2014, to include repair data. Including the repair data will only delay necessary inspections required to address the unsafe condition. The number of positive findings requiring repairs is unknown at this time, and therefore the value of delaying the AD for approved repair data is unknown. It is not possible to address existing repairs which may require an AMOC. The various repair configurations and locations are unknown and therefore cannot be addressed at this time. If the required inspections result in a significant number of repairs, operators and/or the original equipment manufacturer can request a global AMOC for repair data using the procedures in paragraph (i) of this AD.

    Conclusion

    We reviewed the relevant data, considered the comments received, and determined that air safety and the public interest require adopting this AD with the changes described previously and minor editorial changes. We have determined that these minor changes:

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

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

    We also determined that these changes will not increase the economic burden on any operator or increase the scope of this AD.

    Related Service Information Under 1 CFR Part 51

    We reviewed Boeing Alert Service Bulletin 757-53A0099, dated September 18, 2014. The service information describes procedures for detailed and high frequency eddy current (HFEC) inspections for cracking in the fuselage frame at stringer 24 and stringer 25, left and right sides. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

    Costs of Compliance

    We estimate that this AD affects 652 airplanes of U.S. registry. We estimate the following costs to comply with this AD:

    Estimated osts Action Labor cost Parts cost Cost per product Cost on U.S. operators Inspection 68 to 83 work-hours × $85 per hour = Up to $7,055 per inspection cycle $0 Up to $7,055 per inspection cycle Up to $4,599,860 per inspection cycle.

    We have received no definitive data that would enable us to provide cost estimates for the on-condition actions specified in this AD.

    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

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

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

    (1) Is not a “significant regulatory action” under Executive Order 12866,

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

    (3) Will not affect intrastate aviation in Alaska, and

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

    List of Subjects in 14 CFR Part 39

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

    Adoption of the Amendment

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

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

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): 2016-10-05 The Boeing Company: Amendment 39-18516 ; Docket No. FAA-2015-3151; Directorate Identifier 2014-NM-242-AD. (a) Effective Date

    This AD is effective June 20, 2016.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to all The Boeing Company Model 757-200, -200CB, -200PF, and -300 airplanes, certificated in any category.

    (d) Subject

    Air Transport Association (ATA) of America Code 53, Fuselage.

    (e) Unsafe Condition

    This AD was prompted by a report of cracking in the fuselage frame at Station (STA) 1440, stringer 24L. We are issuing this AD to detect and correct fuselage frame fatigue cracking. Such cracking could result in loss of structural integrity and the inability to sustain loading conditions.

    (f) Compliance

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

    (g) Inspection

    At the applicable time specified in paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 757-53A0099, dated September 18, 2014, except as required by paragraph (h) of this AD, do detailed and high frequency eddy current inspections for cracking in the fuselage frames in Section 43 at stringer 25, left and right sides, and frames in Section 46 at stringer 24, left and right sides, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 757-53A0099, dated September 18, 2014.

    (1) If cracking is not found, repeat the inspections at intervals not to exceed 12,000 flight cycles.

    (2) If any cracking is found, before further flight, repair using a method approved in accordance with the procedures specified in paragraph (i) of this AD. Repeat the inspections at intervals not to exceed 12,000 flight cycles in unrepaired areas.

    (h) Exception to Service Information Specifications

    Where Boeing Alert Service Bulletin 757-53A0099, dated September 18, 2014, specifies a compliance time “after the Original Issue date of this Service Bulletin,” this AD requires compliance within the specified compliance time after the effective date of this AD.

    (i) Alternative Methods of Compliance (AMOCs)

    (1) The Manager, Los Angeles Aircraft Certification Office (ACO), FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the ACO, send it to the attention of the person identified in paragraph (j) of this AD. Information may be emailed to: [email protected]

    (2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.

    (3) An AMOC that provides an acceptable level of safety may be used for any repair required by this AD if it is approved by Boeing Commercial Airplanes Organization Designation Authorization (ODA) that has been authorized by the Manager, Los Angeles ACO, to make those findings. For a repair method to be approved, the repair must meet the certification basis of the airplane, and the approval must specifically refer to this AD.

    (4) Except as required by paragraph (h) of this AD: For service information that contains steps that are labeled as Required for Compliance (RC), the provisions of paragraphs (i)(4)(i) and (i)(4)(ii) apply.

    (i) The steps labeled as RC, including substeps under an RC step and any figures identified in an RC step, must be done to comply with the AD. An AMOC is required for any deviations to RC steps, including substeps and identified figures.

    (ii) Steps not labeled as RC may be deviated from using accepted methods in accordance with the operator's maintenance or inspection program without obtaining approval of an AMOC, provided the RC steps, including substeps and identified figures, can still be done as specified, and the airplane can be put back in an airworthy condition.

    (j) Related Information

    For more information about this AD, contact Roger Durbin, Aerospace Engineer, Airframe Branch, ANM-120L, FAA, Los Angeles ACO, 3960 Paramount Boulevard, Lakewood, CA 90712-4137; phone: 562-627-5233; fax: 562-627-5210; email: [email protected]

    (k) Material Incorporated by Reference

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

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

    (i) Boeing Alert Service Bulletin 757-53A0099, dated September 18, 2014.

    (ii) Reserved.

    (3) For Boeing service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P.O. Box 3707, MC 2H-65, Seattle, WA 98124-2207; telephone 206-544-5000, extension 1; fax 206-766-5680; Internet https://www.myboeingfleet.com.

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

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

    Issued in Renton, Washington, on May 4, 2016. Michael Kaszycki, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2016-11197 Filed 5-13-16; 8:45 am] BILLING CODE 4910-13-P
    RAILROAD RETIREMENT BOARD 20 CFR Part 367 RIN 3220-AB66 Recovery of Debts Owed to the United States Government by Administrative Offset AGENCY:

    Railroad Retirement Board.

    ACTION:

    Final rule.

    SUMMARY:

    The Railroad Retirement Board (Board) amends its regulations by changing from 180 days delinquent to 120 days delinquent debts that are referred to Treasury in compliance with the DATA Act.

    DATES:

    This rule will be effective May 16, 2016.

    ADDRESSES:

    Martha P. Rico, Secretary to the Board, Railroad Retirement Board, 844 N. Rush Street, Chicago, Illinois 60611-2092.

    FOR FURTHER INFORMATION CONTACT:

    Marguerite P. Dadabo, Assistant General Counsel, (312) 751-4945, TTD (312) 751-4701.

    SUPPLEMENTARY INFORMATION:

    The Railroad Retirement Board (Board) amends part 367 of the Board's regulations, Recovery of Debts Owed to the United States Government by Administrative Offset. Specifically, the Board amends section 367.3(a), Board Responsibilities. Section 367.3(a) states that all nontax debts over 180 days delinquent shall be referred to the Department of the Treasury for administrative offset through the Treasury Offset Program as required by 31 U.S.C. 3716. 31 U.S.C. 3716 was amended by the Digital Accountability and Transparency Act (DATA Act), Public Law 113-101. The DATA Act now requires agencies to refer to the Department of the Treasury valid, delinquent nontax debts for the purpose of administrative offset at 120 days. The amendment to section 367.3(a) of the Board's regulation changes from 180 days to 120 days the debts referred to the Department of the Treasury in compliance with the DATA Act.

    A proposed rule was published in the Federal Register on January 21, 2015, and comments were invited (80 FR 2839). No comments were received. The final rule makes no changes from the proposed rule.

    The Board, with the concurrence of the Office of Management and Budget, has determined that this is not a significant regulatory action under Executive Order 12866, as amended. Therefore, no regulatory impact analysis is required. There are no changes to the information collections associated with Part 367.

    List of Subjects in 20 CFR Part 367

    Debts, Railroad employees, Railroad retirement.

    For the reasons set out in the preamble, the Railroad Retirement Board amends title 20, chapter II, subchapter F, part 367 of the Code of Federal Regulations as follows:

    PART 367—RECOVERY OF DEBTS OWED TO THE UNITED STATES GOVERNMENT BY ADMINISTRATIVE OFFSET 1. The authority citation for part 367 continues to read as follows: Authority:

    45 U.S.C. 231f(b)(5); 31 U.S.C. 3716

    § 367.3 [Amended]
    2. Amend § 367.3 by removing “180” and adding in its place “120” where it appears in paragraph (a).
    Dated: May 11, 2016.

    By Authority of the Board.

    Martha P. Rico, Secretary to the Board.
    [FR Doc. 2016-11445 Filed 5-13-16; 8:45 am] BILLING CODE 7905-01-P
    DEPARTMENT OF THE INTERIOR Bureau of Indian Affairs 25 CFR Part 151 [167A2100DD/AAKC001030/A0A501010.999900 253G] RIN 1076-AF28 Title Evidence for Trust Land Acquisitions AGENCY:

    Bureau of Indian Affairs, Interior.

    ACTION:

    Final rule.

    SUMMARY:

    This rule deletes the requirement for fee-to-trust applicants to furnish title evidence that meets the “Standards for the Preparation of Title Evidence in Land Acquisitions by the United States” issued by the U.S. Department of Justice (DOJ), and replaces the requirement with a more targeted requirement for title evidence, because adherence to the DOJ standards is not required for acquisitions of land in trust for individual Indians or Indian tribes.

    DATES:

    This rule becomes effective on May 16, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Elizabeth Appel, Director, Office of Regulatory Affairs and Collaborative Action, Office of the Assistant Secretary—Indian Affairs; telephone (202) 273-4680, [email protected]

    SUPPLEMENTARY INFORMATION:

    I. Overview of Rule II. Background III. Comments on the Interim Final Rule A. “Written Evidence” B. Alternatives to a Title Insurance Policy C. Previously Issued Title Insurance Policy D. Abstract of Title E. Marketability and Exceptions to the Title Insurance Policy F. Standards to be Used in Place of DOJ Standards G. Timing and Timelines H. Other Comments IV. Changes from Interim Final Rule to Final Rule V. Applicability of New Rule VI. Procedural Requirements A. Regulatory Planning and Review (E.O. 12866 and 13563) B. Regulatory Flexibility Act C. Small Business Regulatory Enforcement Fairness Act D. Unfunded Mandates Reform Act E. Takings (E.O. 12630) F. Federalism (E.O. 13132) G. Civil Justice Reform (E.O. 12988) H. Consultation with Indian Tribes (E.O. 13175) I. Paperwork Reduction Act J. National Environmental Policy Act K. Information Quality Act L. Effects on the Energy Supply (E.O. 13211) M. Administrative Procedure Act I. Overview of Rule

    This rule replaces the “Standards for the Preparation of Title Evidence in Land Acquisitions by the United States” issued by DOJ (DOJ standards) with a more targeted title evidence standard. Under the new standard, applicants must furnish a deed evidencing that the applicant has ownership, or a written sales contract or written statement from the transferor that the applicant will have ownership. Applicants must also submit either (1) a current title insurance commitment; or (2) the policy of title insurance issued at the time of the applicant's or current owner's acquisition of the interest and an abstract dating from the time the interest was acquired. This rule does not preclude applicants from having title confirmed pursuant to all requirements of DOJ standards (as those standards apply in the land-into-trust context) if the applicant so chooses.

    The rule continues the current requirement that title evidence must be submitted and reviewed by the Department of the Interior (Department) before title is transferred. The rule continues to provide that the Secretary has discretion to require the elimination of any liens, encumbrances, or infirmities prior to acceptance in trust. The rule also continues the practice of requiring the elimination of any legal claims, including but not limited to liens, mortgages, and taxes, determined by the Secretary to make title unmarketable, prior to acceptance in trust.

    II. Background

    Section 5 of the Indian Reorganization Act (IRA) is the primary authority providing the Secretary of the Interior (Secretary) with discretion to acquire land in trust for individual Indians or Indian tribes. See 25 U.S.C. 465. Congress has also enacted other statutes that authorize the discretionary acquisition of lands for specific tribes. The Department's regulations at 25 CFR part 151 establish the process for discretionary trust acquisitions pursuant to section 465 and other statutory authority. Section 151.13 of the regulations published in 1980 required the applicant to furnish title evidence meeting the DOJ standards if the Secretary determines to approve a fee-to-trust application.

    On March 1, 2016, BIA published an interim final rule deleting the requirement for the applicant to furnish title evidence meeting DOJ standards because those standards are not required for acquisitions of land in trust for individual Indians or Indian tribes. See 81 FR 10477. On April 15, 2016, BIA delayed the effective date of the rule to May 16, 2016 to allow BIA time to publish technical revisions. See 81 FR 22183. This rule provides those technical revisions.

    III. Comments on the Interim Final Rule

    The BIA received 13 comments in response to the interim final rule, most asking questions seeking clarification of the regulatory text. Several commenters supported the rule, but requested clarification. Commenters who opposed the rule stated that the current DOJ standards are necessary to protect the public, including adjoining landowners and other third parties, and protect against conflicts of interest, and that DOJ standards are more reliable and less costly.

    After careful consideration of the comments and applying its own experience in reviewing fee-to-trust applications and title evidence, BIA has determined that the final rule provides sufficient standards to protect the United States. The purpose of title evidence requirements is to ensure that the Tribe has marketable title to convey to the United States, thereby protecting the United States. See Crest-Dehesa-Granite Hills-Harbison Canyon Subregional Planning Group v. Acting Pacific Regional Director, 61 IBIA 208, 216 (2015). The rule revisions allow for a less costly alternative to providing a title insurance policy under DOJ standards, while still ensuring sufficient evidence of good title. The following are summaries of the substantive points made in these comments, and the Department's responses.

    A. “Written Evidence”

    Several commenters requested clarification of what “written evidence” is required by paragraphs (a)(1) and (a)(2) of the interim final rule. In paragraph (a)(1), the interim final rule required “written evidence of the applicant's title or that title will be transferred to the United States on behalf of the applicant to complete the acquisition in trust.” In paragraph (a)(2), the interim final rule required “written evidence of how title was acquired by the applicant or current owner.” Commenters stated that it appeared the same evidence may satisfy both (a)(1) and (a)(2), in the form of the applicant's deed. To clarify, the final rule specifies that the written evidence must be a deed or other conveyance instrument providing evidence of the applicant's title. The final rule also specifies that if the applicant does not yet have title, the written evidence must be: (1) A deed or other conveyance instrument providing evidence of the transferor's title; and (2) a written agreement or affidavit from the transferor demonstrating that title will be transferred to the United States on behalf of the applicant to complete the acquisition in trust.

    A few commenters also noted that (a)(1) and (a)(2) appeared to impose redundant requirements. The final rule addresses this comment by deleting (a)(2), because the specified written evidence required by (a)(1) will necessarily also serve as evidence of how the applicant or current owner acquired title.

    B. Alternatives to a Title Insurance Policy

    A commenter requested clarification of paragraph (b)'s requirement for a “current title insurance commitment” to confirm that no title insurance policy needs to be purchased in the name of the U.S. in trust for the applicant. The commenter is correct that no title insurance policy needs to be purchased if the applicant provides a current title insurance commitment. Also, if the applicant or current owner already obtained a title insurance policy when they acquired the land, the applicant need not purchase a new title insurance policy if they provide the previously issued policy and an abstract of title dating from the time the land was acquired by the applicant or current owner to the present. No clarification to the rule was made in response to this comment because the rule already states the alternatives to purchasing a title insurance policy.

    Another commenter noted that, because the rule requires only the commitment to issue title insurance rather than an actual title insurance policy, that title companies may stop issuing commitments without a final title policy. For BIA's purposes, the title commitment is sufficient evidence and, in recognition that there is an extra cost imposed for obtaining the actual title insurance policy, the rule requires only the title commitment. Currently, title companies generally will issue a commitment without requiring the purchase of an actual policy; the possibility that title companies may require the purchase of an actual policy in the future does not provide a basis for BIA to require the policy. An insurance policy is not required if the applicant is proceeding with a title commitment, but applicants may choose to purchase a policy if they so desire; the rule does not prevent them from doing so.

    C. Previously Issued Title Insurance Policy

    A commenter requested clarification of the requirement for “the policy of title insurance issued at the time of the applicant's or current owner's acquisition of the land and an abstract of title dating from the time the land was acquired by the applicant or current owner.” This commenter stated that an existing title insurance policy may not have been issued at the time of the acquisition, and suggested revising the provision to simply state “the policy of title insurance issued to the applicant or current owner.” The final rule incorporates this suggestion and clarifies that the abstract must address the time period beginning when the insurance policy was issued to the applicant or current owner.

    One commenter asked whether BIA, and the Office of the Solicitor, will still require a current title commitment, even when the applicant provides the previously issued policy and abstract. Upon the effective date of the rule, the BIA and Office of the Solicitor will require only the title evidence listed in the rule.

    D. Abstract of Title

    A commenter requested clarification as to whether the requirement for an abstract of title is intended to address title going forward rather than backward, and if so, that it would not be a title abstract in the traditional sense because the abstract would reflect only the current owner. The final rule clarifies that the requirement is intended to address title going forward, by adding “to the present.” The commenter is correct that the abstract of title will be straightforward, and may only reflect the current owner, but the abstract will serve the purpose of confirming the current owner's ownership and showing whether any liens, encumbrances, or infirmities have been placed on title prior to acceptance in trust, in lieu of requiring the applicant to purchase a new title commitment.

    E. Marketability and Exceptions to the Title Insurance Policy

    A commenter requested clarification on what “marketability” means. The commenter also asked how BIA will address reversionary clauses and defeasible title issues and their effect on marketability. The final rule makes no substantive change to the provision allowing BIA to require the elimination of any such liens, encumbrances, or infirmities if BIA determines they make title to the land unmarketable. Likewise, the final rule makes no substantive change to the meaning of “unmarketable.”

    A commenter suggested the rule explain that the deed will not be recorded until exceptions to the title insurance policy are satisfied. The final rule does not include this explanation because it is inaccurate. There is no requirement that all exceptions be eliminated. The Department reviews and makes a determination on each exception as to whether it must be eliminated, and does not require the elimination of exceptions that do not affect the title to the land.

    F. Standards To Be Used in Place of DOJ Standards

    A few commenters requested more specifics as to what title standards the Department will apply in lieu of the DOJ standards. For example, one commenter asked whether the Department will still require applicants to use the American Land Title Association (ALTA) U.S. policy form in those cases in which the applicant chooses to obtain title insurance. The BIA has updated the fee-to-trust handbook to ensure it is consistent with this final rule. The revised version of the fee-to-trust handbook specifies that, if the applicant chooses to submit title insurance, it should use the most current version of the ALTA U.S. policy form. A commenter also asked how the Department will determine who is qualified to provide title evidence, in lieu of the DOJ standards. The revised fee-to-trust handbook specifies that the Department will look to the appropriate licensing authority for qualifications. A commenter also asked what type of deed will be required to convey title to the U.S. on behalf of the applicant. The Department will continue the approach it has taken in the past (requiring a warranty deed in nearly all instances), specified in the revised fee-to-trust handbook.

    A commenter asked whether the Department will look to State laws for guidance. The Department relies on national standards, as set out in the rule and revised fee-to-trust handbook, rather than State laws, with regard to the Department's decision whether to approve title.

    G. Timing and Timelines

    One commenter requested stating that the applicant need not provide title evidence until after the Secretary makes the decision to take the land into trust. The final rule only addresses what title evidence is required, it is not intended to change the Department's process or timing.

    One commenter suggested imposing timelines on the Department's issuance of preliminary and final title opinions. The final rule does not incorporate this suggestion because there are too many variables to establish a definitive timeframe for preparation of these documents.

    H. Other Comments

    A few commenters suggested edits that were beyond the scope of the interim final rule. One Tribal commenter noted the difficulty in obtaining title insurance policies in California and suggested actions the Department could take to educate title insurance companies. Another commenter suggested adding a requirement to obtain State approval to transfer jurisdiction of land being taken into trust. These comments are outside the scope of this rulemaking.

    A commenter also stated that the revision is not appropriate for an interim final rule. The Department disagrees because the rule is a targeted, procedural improvement.

    IV. Changes From Interim Final Rule to Final Rule

    As described above, the final rule includes edits to the interim final rule for clarification. The edits are summarized in the table below:

    Former rule Interim final rule New rule
  • (effective May 16, 2016)
  • The Secretary will require title evidence meeting the DOJ standards Requires the following in lieu of the DOJ standards: Clarifies “written evidence” to be: (1) Written evidence of the applicant's title or that title will be transferred to the United States on behalf of the applicant to complete the trust acquisition; and (1) Applicant's deed; or (2) written evidence of how the applicant or current owner acquired title; and (2) If the applicant does not yet have title, the transferor's deed and a written statement from the transferee that it will transfer title to the United States on behalf of the applicant. (3) either: Deletes the requirement for written evidence of how the applicant or current owner acquired title. (i) A current title insurance commitment; or Clarifies that the abstract must cover the time period beginning when the land was acquired by the applicant or current owner up to the present. (ii) a previously issued title insurance policy and abstract dating from the time the land was acquired to the present Allows applicant to choose to provide evidence meeting the DOJ standards in lieu of the current title commitment or policy and abstract. The Secretary will notify the applicant of any liens, encumbrances, or infirmities which may exist Adds that the Secretary may seek additional information from the applicant if needed to address the issues No change from interim final rule. The Secretary may require elimination of liens, encumbrances, infirmities prior to taking final approval action on the acquisition No procedural change No change from interim final rule. The Secretary shall require elimination prior to such approval if the liens, encumbrances, or infirmities make title to the land unmarketable No procedural change No change from interim final rule.
    V. Applicability of New Rule

    As the preamble to the interim final rule stated, this rule will apply to all trust applications submitted after the effective date. This rule will also apply to trust applications that are pending and for which the Preliminary Title Opinion has not yet been prepared by the Office of the Solicitor as of the effective date. However, if applicants have already submitted evidence meeting the DOJ standards, they need not re-submit evidence pursuant to this rule. This rule will not apply to trust applications that are pending and for which the Preliminary Title Opinion has already been prepared by the Office of the Solicitor as of the effective date.

    BIA has updated its fee-to-trust handbook to incorporate changes required by the new rule. The handbook is available at: http://www.bia.gov/cs/groups/xraca/documents/text/idc1-024504.pdf.

    VI. Procedural Requirements A. Regulatory Planning and Review (E.O. 12866 and 13563)

    Executive Order 12866 provides that the Office of Information and Regulatory Affairs in the Office of Management and Budget will review all significant rules. The Office of Information and Regulatory Affairs 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.

    B. Regulatory Flexibility Act

    The Department of the Interior certifies that this document will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). It does not change current funding requirements or regulate small entities.

    C. Small Business Regulatory Enforcement Fairness Act

    This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. It will not result in the expenditure by State, local, or Tribal governments, in the aggregate, or by the private sector of $100 million or more in any one year. The rule will not result in a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions. Nor will this rule have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of the U.S.-based enterprises to compete with foreign-based enterprises. This rule removes the requirement for title evidence to comply with DOJ standards and replaces this requirement with a more targeted requirement for title evidence; it will not result in additional expenditures by any entity.

    D. Unfunded Mandates Reform Act

    This rule does not impose an unfunded mandate on State, local, or tribal governments or the private sector of more than $100 million per year. The rule does 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.

    E. Takings (E.O. 12630)

    Under the criteria in Executive Order 12630, this rule does not affect individual property rights protected by the Fifth Amendment nor does it involve a compensable “taking.” A takings implication assessment is not required.

    F. Federalism (E.O. 13132)

    Under the criteria in Executive Order 13132, this rule has no 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. This rule removes the requirement for title evidence to comply with DOJ standards and replaces this requirement with a more targeted requirement for title evidence; it does not affect States or the relationship with States in any way.

    G. Civil Justice Reform (E.O. 12988)

    This rule complies with the requirements of Executive Order 12988. Specifically, this rule has been reviewed to eliminate errors and ambiguity and written to minimize litigation; and is written in clear language and contains clear legal standards.

    H. Consultation With Indian Tribes (E.O. 13175)

    In accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments,” Executive Order 13175 (59 FR 22951, November 6, 2000), and 512 DM 2, we have evaluated the potential effects on federally recognized Indian Tribes and Indian trust assets and have determined there is no “substantial direct effect” on Tribes, on the relationship between the Federal Government and Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. The rule will affect Tribes who apply to take land into trust, in that the rule removes unnecessary submissions of documentation. However, the rule does not have a substantial direct effect on Tribes because Tribes can still submit evidence meeting the DOJ title standards should they so choose and allowing the option of submitting a past title insurance policy and an abstract of title is intended to be less burdensome than the existing rule. The Department is committed to meaningful consultation with Tribes on substantive matters that have a substantial direct effect on Tribes, in accordance with E.O. 13175 and the Department of the Interior Policy on Consultation with Indian Tribes.

    I. Paperwork Reduction Act

    This information collection for trust land applications is authorized by OMB Control Number 1076-0100, with an expiration of 08/31/16. The elimination of the requirement to comply with DOJ standards is not expected to have a quantifiable effect on the hour burden estimate for the information collection, but BIA will review whether its current estimates are affected by this change at the next renewal.

    J. National Environmental Policy Act

    This rule does not constitute a major Federal action significantly affecting the quality of the human environment. A detailed statement under the National Environmental Policy Act of 1969 (NEPA) is not required because the rule is covered by a categorical exclusion. This rule is excluded from the requirement to prepare a detailed statement because it is a regulation of an administrative nature. (For further information, see 43 CFR 46.210(i).) We have also determined that the rule does not involve any of the extraordinary circumstances listed in 43 CFR 46.215 that would require further analysis under NEPA.

    K. Information Quality Act

    In developing this rule we did not conduct or use a study, experiment, or survey requiring peer review under the Information Quality Act (Pub. L. 106-554).

    L. Effects on the Energy Supply (E.O. 13211)

    This rule is not a significant energy action under the definition in Executive Order 13211. A Statement of Energy Effects is not required.

    M. Administrative Procedure Act

    We published an interim final rule with a request for comment without prior notice and comment, as allowed under 5 U.S.C. 553(b)(B). Under section 553(b)(B), we find that prior notice and comment are unnecessary because this is a minor, technical action that eliminates an unnecessary requirement. This rule removes the unnecessary requirement that the title evidence the applicant submits must comply with DOJ standards for title evidence. Delay in publishing this rule would unnecessarily continue imposing the unnecessary requirement on applicants and would therefore be contrary to the public interest. We stated that we would review comments and initiate a proposed rulemaking, revise, or withdraw the rule. Because the comments we received were primarily seeking clarifications, we have chosen to revise the rule with requested clarifications.

    List of Subjects in 25 CFR Part 151

    Indians—lands, Reporting and recordkeeping requirements.

    For the reasons given in the preamble, the interim rule amending 25 CFR part 151 which was published at 81 FR 10477 on March 1, 2016, is adopted as a final rule with the following change:

    PART 151—LAND ACQUISITIONS 1. The authority citation for part 151 continues to read as follows: Authority:

    R.S. 161: 5 U.S.C. 301. Interpret or apply 46 Stat. 1106, as amended; 46 Stat.1471, as amended; 48 Stat. 985, as amended; 49 Stat. 1967, as amended, 53 Stat. 1129; 63 Stat. 605; 69 Stat. 392, as amended; 70 Stat. 290, as amended; 70 Stat. 626; 75 Stat. 505; 77 Stat. 349; 78 Stat. 389; 78 Stat. 747; 82 Stat. 174, as amended, 82 Stat. 884; 84 Stat. 120; 84 Stat. 1874; 86 Stat. 216; 86 Stat. 530; 86 Stat. 744; 88 Stat. 78; 88 Stat. 81; 88 Stat. 1716; 88 Stat. 2203; 88 Stat. 2207; 25 U.S.C. 2, 9, 409a, 450h, 451, 464, 465, 487, 488, 489, 501, 502, 573, 574, 576, 608, 608a, 610, 610a, 622, 624, 640d-10, 1466, 1495, and other authorizing acts.

    2. Revise § 151.13 to read as follows:
    § 151.13 Title review.

    (a) If the Secretary determines that she will approve a request for the acquisition of land from unrestricted fee status to trust status, she shall require the applicant to furnish title evidence as follows:

    (1) The deed or other conveyance instrument providing evidence of the applicant's title or, if the applicant does not yet have title, the deed providing evidence of the transferor's title and a written agreement or affidavit from the transferor, that title will be transferred to the United States on behalf of the applicant to complete the acquisition in trust; and

    (2) Either:

    (i) A current title insurance commitment; or

    (ii) The policy of title insurance issued to the applicant or current owner and an abstract of title dating from the time the policy of title insurance was issued to the applicant or current owner to the present.

    (3) The applicant may choose to provide title evidence meeting the title standards issued by the U.S. Department of Justice, in lieu of the evidence required by paragraph (a)(2) of this section.

    (b) After reviewing submitted title evidence, the Secretary shall notify the applicant of any liens, encumbrances, or infirmities that the Secretary identified and may seek additional information from the applicant needed to address such issues. The Secretary may require the elimination of any such liens, encumbrances, or infirmities prior to taking final approval action on the acquisition, and she shall require elimination prior to such approval if she determines that the liens, encumbrances or infirmities make title to the land unmarketable.

    Dated: May 11, 2016. Lawrence S. Roberts, Acting Assistant Secretary—Indian Affairs.
    [FR Doc. 2016-11489 Filed 5-13-16; 8:45 am] BILLING CODE 4337-15-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 117 [Docket No. USCG-2016-0392] Drawbridge Operation Regulation; Lake Washington Ship Canal, Seattle, WA AGENCY:

    Coast Guard, DHS.

    ACTION:

    Notice of deviation from drawbridge regulation.

    SUMMARY:

    The Coast Guard has issued a temporary deviation from the operating schedule that governs the Montlake Bridge across the Lake Washington Ship Canal, mile 5.2, at Seattle, WA. The deviation is necessary to accommodate the University of Washington, and University of Washington Bothell commencement ceremony traffic. This deviation allows the bridge to remain in the closed-to-navigation position to accommodate the timely movement of vehicular traffic.

    DATES:

    This deviation is effective from 9:30 a.m. on June 11, 2016 to 6:15 p.m. on June 12, 2016.

    ADDRESSES:

    The docket for this deviation, [USCG-2016-0392] is available at http://www.regulations.gov. Type the docket number in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this deviation.

    FOR FURTHER INFORMATION CONTACT:

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

    SUPPLEMENTARY INFORMATION:

    The University of Washington, through the Washington Department of Transportation, has requested that the Montlake Bridge bascule span remain in the closed-to-navigation position, and need not open to marine traffic to facilitate timely movement of commencement vehicular traffic.

    The Montlake Bridge across the Lake Washington Ship Canal, at mile 5.2, in the closed position provides 30 feet of vertical clearance throughout the navigation channel, and 46 feet of vertical clearance throughout the center 60-feet of the bridge; vertical clearance references to the Mean Water Level of Lake Washington. The normal operating schedule for Montlake Bridge operates in accordance with 33 CFR 117.1051(e).

    The deviation period is from 9:30 a.m. to 12:30 p.m. and from 4:30 p.m. to 6:30 p.m. on June 11, 2016; and from 11:45 a.m. to 1:45 p.m. and from 4:15 p.m. to 6:15 p.m. on June 12, 2016. The deviation allows the bascule span of the Montlake Bridge to remain in the closed-to-navigation position for the times and dates herein. Waterway usage on the Lake Washington Ship Canal ranges from commercial tug and barge to small pleasure craft.

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

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

    Dated: May 10, 2016. Steven M. Fischer, Bridge Administrator, Thirteenth Coast Guard District.
    [FR Doc. 2016-11495 Filed 5-13-16; 8:45 am] BILLING CODE 9110-04-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 117 [Docket No. USCG-2016-0380] Drawbridge Operation Regulation; Willamette River, Portland, OR AGENCY:

    Coast Guard, DHS.

    ACTION:

    Notice of deviation from drawbridge regulation.

    SUMMARY:

    The Coast Guard has issued a temporary deviation from the operating schedule that governs the upper deck of the Steel Bridge, mile 12.1, and the Burnside Bridge, mile 12.4, both crossing the Willamette River, at Portland, OR. The deviation is necessary to accommodate the annual Rose Festival Parade event, which crosses the Steel Bridge and Burnside Bridge. This deviation allows the upper deck of the Steel Bridge and Burnside Bridge to remain in the closed-to-navigation position and need not open for marine traffic to allow for the safe movement of event participants.

    DATES:

    This deviation is effective from 7 a.m. to 2 p.m. on June 11, 2016.

    ADDRESSES:

    The docket for this deviation, [USCG-2016-0380] is available at http://www.regulations.gov. Type the docket number in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this deviation.

    FOR FURTHER INFORMATION CONTACT:

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

    SUPPLEMENTARY INFORMATION:

    TriMet Public Transit and Multnomah County have requested that the upper deck of the Steel Bridge and the Burnside Bridge remain in the closed-to-navigation position to accommodate the annual Rose Festival Parade event. The Steel Bridge, mile 12.1, and the Burnside Bridge, mile 12.4, both cross the Willamette River.

    The Steel Bridge is a double-deck lift bridge with a lower lift deck and an upper lift deck which operate independent of each other. When both decks are in the down position the bridge provides 26 feet of vertical clearance. When the lower deck is in the up position, the bridge provides 71 feet of vertical clearance. This deviation does not affect the operating schedule of the lower deck which opens on signal. The normal operating schedule for the upper deck of the Steel Bridge operates in accordance with 33 CFR 117.897(c)(3)(ii).

    The Burnside Bridge provides a vertical clearance of 64 feet in the closed-to-navigation position. The normal operating schedule for the Burnside Bridge operates in accordance with 33 CFR 117.897(c)(3)(iii). The Steel Bridge and Burnside Bridge clearances are above Columbia River Datum 0.0.

    The deviation period is from 7 a.m. to 2 p.m. on June 11, 2016 to accommodate the route of the annual Rose Festival Parade event. The deviation allows the upper deck of the Steel Bridge, mile 12.1, and the Burnside Bridge, mile 12.4, both crossing the Willamette River, to remain in the closed-to-navigation position and need not open for maritime traffic from 7 a.m. to 2 p.m. on June 11, 2016. Waterway usage on this part of the Willamette River includes vessels ranging from commercial tug and barge to small pleasure craft.

    Vessels able to pass through the Steel Bridge and Burnside Bridge in the closed positions may do so at any time. The bridges will be able to open for emergencies, and there is no immediate alternate route for vessels to pass. The Coast Guard will also inform the users of the waterways through our Local and Broadcast Notices to Mariners of the change in operating schedule for the bridges so that vessel operators can arrange their transits to minimize any impact caused by the temporary deviation.

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

    Dated: May 9, 2016. Steven M. Fischer, Bridge Administrator, Thirteenth Coast Guard.
    [FR Doc. 2016-11381 Filed 5-13-16; 8:45 am] BILLING CODE 9110-04-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket Number USCG-2016-0337] RIN 1625-AA00 Safety Zone; Upper Mississippi River, Minneapolis, MN AGENCY:

    Coast Guard, DHS.

    ACTION:

    Temporary final rule.

    SUMMARY:

    The Coast Guard is establishing a temporary safety zone for all waters of the Upper Mississippi River (UMR) from mile 853.2 to mile 854.2. The safety zone is needed to protect persons, property, and infrastructure from potential damage and safety hazards associated with a fireworks display. Entry of vessels or persons into this zone is prohibited unless specifically authorized by the Captain of the Port (COTP). Deviation from the safety zone may be requested and will be considered on a case-by-case basis as specifically authorized by the COTP or a designated representative.

    DATES:

    This rule is effective from 10 p.m. until 11 p.m. on June 17, 2016.

    ADDRESSES:

    To view documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov, type USCG-2016-0337 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 on this rule, call or email LCDR Sean Peterson, Chief of Prevention, U.S. Coast Guard; telephone 314-269-2332, email [email protected]

    SUPPLEMENTARY INFORMATION:

    I. Table of Abbreviations BNM Broadcast Notice to Mariners CFR Code of Federal Regulations COTP Captain of the Port DHS Department of Homeland Security FR Federal Register NPRM Notice of proposed rulemaking § Section U.S.C. United States Code UMR Upper Mississippi River II. Background Information and Regulatory History

    The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency finds good cause those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because the Coast Guard was not notified of the event until April 19, 2016. After full review of the event details, the Coast Guard determined that action is needed to protect people and property from the safety hazards associated with a fireworks display on the Upper Mississippi River. It would be impracticable to publish a NPRM because the safety zone must be established on June 17, 2016.

    III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 33 U.S.C. 1231. On June 17, 2016, a fireworks display will take place on the Upper Mississippi River between mile 853.2 and mile 854.2 for the 150th Celebration of General Mills. The COTP has determined that potential hazards associated with the fireworks display will be a safety concern for anyone within the area that is designated as the safety zone. This rule is needed to protect personnel, vessels, and the marine environment in the navigable waters within the safety zone during the fireworks display.

    IV. Discussion of the Rule

    This rule establishes a safety zone from 10 p.m. until 11 p.m. on June 17, 2016. The safety zone will cover all navigable waters on the Upper Mississippi River between mile 853.2 and mile 854.2. The safety zone is intended to protect personnel, vessels, and the marine environment in these navigable waters during the fireworks display. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative.

    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, and we discuss First Amendment rights of protestors.

    A. Regulatory Planning and Review

    Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This 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 temporary final rule establishes a safety zone that will be enforced for a limited time period. During the enforcement period, vessels are prohibited from entering into or remaining within the safety zone unless specifically authorized by the COTP or other designated representative. Based on the location and short duration of the enforcement period, this rule does not pose a significant regulatory impact. Additionally, notice of this safety zone or any changes in the planned schedule will be made via Broadcast Notice to Mariners and Local Notice to Mariners. Deviation from this rule may be requested from the COTP and will be considered on a case-by-case basis.

    B. Impact on Small Entities

    The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this 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 the safety zone 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 would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section.

    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 Order 13132.

    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 above.

    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 determined 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 a safety zone lasting approximately one hour that will prohibit entry between miles 853.2 and 854.2 on the Upper Mississippi River. It is categorically excluded from further review under paragraph 34(g) of Figure 2-1 of the Commandant Instruction. 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.

    G. Protest Activities

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

    List of Subjects in 33 CFR Part 165

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

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

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

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

    2. Add § 165.T08-0337 to read as follows:
    § 165.T08-0337 Safety Zone; Upper Mississippi River 853.2 to 854.2; Minneapolis, MN.

    (a) Location. The following area is a safety zone: All waters of the Upper Mississippi River between miles 853.2 and 854.2, extending the entire width of the river.

    (b) Definitions. As used in this section, designated representative means a Coast Guard Patrol Commander, including a Coast Guard coxswain, petty officer, or other officer operating a Coast Guard vessel and a Federal, State, and local officer designated by or assisting the Captain of the Port (COTP) Upper Mississippi River in the enforcement of the safety zone.

    (c) Regulations. (1) Under the general safety zone regulations in subpart C of this part, you may not enter the safety zone described in paragraph (a) of this section unless authorized by the COTP or the COTP's designated representative.

    (2) To seek permission to enter, contact the COTP or the COTP's representative via VHF-FM channel 16 or through Coast Guard Sector Upper Mississippi River at 314-269-2332. Those in the safety zone must comply with all lawful orders or directions given to them by the COTP or the COTP's designated representative.

    (d) Enforcement period. This rule is effective and will be enforced from 10 p.m. until 11 p.m. on June 17, 2016.

    (e) Information broadcasts. The COTP or the COTP's representative will inform the public through broadcast notices to mariners of the enforcement period for the safety zone as well as any changes in the planned schedule.

    Dated: May 9, 2016. M. L. Malloy, Captain, U.S. Coast Guard, Captain of the Port Upper Mississippi River.
    [FR Doc. 2016-11569 Filed 5-13-16; 8:45 am] BILLING CODE 9110-04-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket No. USCG-2016-0136] Safety Zone; Fourth of July Fireworks, Crescent City, Crescent City Harbor, Crescent City, CA AGENCY:

    Coast Guard, DHS.

    ACTION:

    Notice of enforcement.

    SUMMARY:

    The Coast Guard will enforce the safety zone for the Crescent City Fourth of July Fireworks display in the Captain of the Port, San Francisco area of responsibility during the dates and times noted below. This action is necessary to protect life and property of the maritime public from the hazards associated with the fireworks display. During the enforcement period, unauthorized persons or vessels are prohibited from entering into, transiting through, or anchoring in the safety zone, unless authorized by the Patrol Commander (PATCOM).

    DATES:

    The regulations in 33 CFR 165.1191, Table 1, Item number 4 will be enforced from 9:30 p.m. to 10 p.m. on July 4, 2016.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions on this notice of enforcement, call or email Lieutenant Junior Grade Christina Ramirez, U.S. Coast Guard Sector San Francisco; telephone (415) 399-3585 or email at [email protected]

    SUPPLEMENTARY INFORMATION:

    The Coast Guard will enforce the safety zone established in 33 CFR 165.1191, Table 1, Item number 4 on July 4, 2016. Upon commencement of the 30 minute fireworks display, scheduled to begin at 9:30 p.m. on July 4, 2016, the safety zone will encompass the navigable waters surrounding the land-based launch site on the West Jetty of Crescent City Harbor within a radius of 700 feet in approximate position 41°44′41″ N, 124°11′59″ W (NAD 83) for the Fourth of July Fireworks, Crescent City in 33 CFR 165.1191, Table 1, Item number 4. Upon the conclusion of the fireworks display the safety zone shall terminate. This safety zone will be in effect from 9:30 p.m. to 10 p.m. on July 4, 2016.

    Under the provisions of 33 CFR 165.1191, unauthorized persons or vessels are prohibited from entering into, transiting through, or anchoring in the safety zone during all applicable effective dates and times, unless authorized to do so by the PATCOM. Additionally, each person who receives notice of a lawful order or direction issued by an official patrol vessel shall obey the order or direction. The PATCOM is empowered to forbid entry into and control the regulated area. The PATCOM shall be designated by the Commander, Coast Guard Sector San Francisco. The PATCOM may, upon request, allow the transit of commercial vessels through regulated areas when it is safe to do so.

    This notice of enforcement is issued under authority of 33 CFR 165.1191 and 5 U.S.C. 552 (a). In addition to this notice of enforcement in the Federal Register, the Coast Guard plans to provide the maritime community with notification of the safety zone and its enforcement period via the Local Notice to Mariners.

    If the Captain of the Port determines that the regulated area need not be enforced for the full duration stated in this notice, a Broadcast Notice to Mariners may be used to grant general permission to enter the regulated area.

    Dated: April 20, 2016. Gregory G. Stump, Captain, U.S. Coast Guard, Captain of the Port San Francisco.
    [FR Doc. 2016-11490 Filed 5-13-16; 8:45 am] BILLING CODE 9110-04-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R10-OAR-2016-0050; FRL-9946-39-Region 10] Approval and Promulgation of Implementation Plans; Oregon: Interstate Transport of Lead and Nitrogen Dioxide AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    The Clean Air Act (CAA) requires each State Implementation Plan (SIP) to contain adequate provisions prohibiting air emissions that will have certain adverse air quality effects in other states. On October 20, 2015, the State of Oregon made a submittal to the Environmental Protection Agency (EPA) to address these requirements. The EPA is approving the submittal as meeting the requirements that each SIP contain adequate provisions to prohibit emissions that will contribute significantly to nonattainment or interfere with maintenance of the 2008 lead (Pb) and 2010 nitrogen dioxide (NO2) National Ambient Air Quality Standards (NAAQS) in any other state.

    DATES:

    This final rule is effective June 15, 2016.

    ADDRESSES:

    The EPA has established a docket for this action under Docket ID No. EPA-R10-OAR-2016-0050. All documents in the docket are listed on the http://www.regulations.gov Web site. Although listed in the index, some information is not publicly available, e.g., Confidential Business Information (CBI) 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 will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through http://www.regulations.gov or in hard copy at the Air Programs Unit, Office of Air, Waste and Toxics, EPA Region 10, 1200 Sixth Avenue, Seattle, WA 98101. The EPA requests that if at all possible, you contact the individual listed in the FOR FURTHER INFORMATION CONTACT section to view the hard copy of the docket. You may view the hard copy of the docket Monday through Friday, 8:00 a.m. to 4:00 p.m., excluding Federal holidays.

    FOR FURTHER INFORMATION CONTACT:

    Kristin Hall at (206) 553-6357, [email protected], or the above EPA, Region 10 address.

    SUPPLEMENTARY INFORMATION:

    Table of Contents I. Background Information II. Final Action III. Statutory and Executive Orders Review I. Background Information

    On October 20, 2015, Oregon made a submittal to address the interstate transport requirements of CAA section 110(a)(2)(D)(i)(I) for multiple NAAQS, including the 2008 Pb and 2010 NO2 NAAQS. On March 11, 2016, the EPA proposed to approve the submittal as meeting the interstate transport requirements of CAA section 110(a)(2)(D)(i)(I) for the 2008 Pb and 2010 NO2 NAAQS (81 FR 12849). An explanation of the CAA requirements, a detailed analysis of the submittal, and the EPA's reasons for approval were provided in the proposal and will not restated here. The public comment period for the proposal ended on April 11, 2016. The EPA received no comments.

    II. Final Action

    The EPA is approving Oregon's October 20, 2015 submittal as meeting the CAA section 110(a)(2)(D)(i)(I) interstate transport requirements for the 2008 Pb and 2010 NO2 NAAQS. The remainder of the submittal, with respect to the 2010 sulfur dioxide and 2012 fine particulate matter NAAQS, will be addressed in separate, future actions.

    III. Statutory and Executive Orders Review

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

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

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

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

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

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

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

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

    • is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because this action does not involve technical standards; 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).

    In addition, 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 as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. 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 CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by July 15, 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, Lead, Nitrogen dioxide, Reporting and recordkeeping requirements.

    Authority:

    42 U.S.C. 7401 et seq.

    Dated: May 4, 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 MM—Oregon 2. Section 52.1991 is amended by adding paragraph (e) to read as follows:
    § 52.1991 Section 110(a)(2) infrastructure requirements.

    (e) The EPA approves Oregon's October 20, 2015 submittal as meeting the requirements of CAA section 110(a)(2)(D)(i)(I) for the 2008 lead and 2010 nitrogen dioxide NAAQS.

    [FR Doc. 2016-11380 Filed 5-13-16; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 63 [EPA-HQ-OAR-2012-0360; FRL-9946-32-OAR] RIN 2060-AR47 National Emission Standards for Hazardous Air Pollutants: Off-Site Waste and Recovery Operations: Action Denying a Petition for Reconsideration AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Notice of action denying a petition for reconsideration.

    SUMMARY:

    The Environmental Protection Agency (EPA) is providing notice that it has responded to a petition for reconsideration of a final rule published in the Federal Register on March 18, 2015. The rule promulgated amendments to the National Emission Standards for Hazardous Air Pollutants (NESHAP): Off-Site Waste and Recovery Operations (OSWRO) based on our residual risk and technology review (RTR) conducted for the OSWRO source category. The agency previously granted reconsideration of one issue raised in the petition. The Administrator denied the second issue raised in the petition in letters to the petitioners dated May 5, 2016.

    DATES:

    May 16, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Emily Seidman, U.S. EPA, Office of General Counsel, Mail Code 2344A, 1200 Pennsylvania Avenue NW., Washington, DC 20460; telephone (202) 564-0906; email at [email protected]

    SUPPLEMENTARY INFORMATION: I. How can I get copies of this document and other related information?

    This Federal Register document, the petition for reconsideration, and the letters granting and denying the petition for reconsideration are available in the docket the EPA established for the OSWRO NESHAP under Docket ID No. EPA-HQ-OAR-2012-0360. The document identification number for the petition for reconsideration is EPA-HQ-OAR-2012-0360-0128. The document identification numbers for the EPA's response letters are EPA-HQ-OAR-2012-0360-0122 and EPA-HQ-OAR-2012-0360-0123.

    All documents in the docket are listed on the http://www.regulations.gov Web site. Although listed in the index, some information is not publicly available, e.g., confidential business information or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through http://www.regulations.gov or in hard copy at the EPA Docket Center (EPA/DC), Room 3334, EPA WJC West Building, 1301 Constitution Ave. NW., Washington, DC. 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 Air Docket is (202) 566-1742.

    This Federal Register document, the petition for reconsideration, and the letters granting and denying the petition can also be found on EPA's Web site at http://www.epa.gov/ttn/atw/offwaste/oswropg.html. The amended OSWRO NESHAP was published in the Federal Register on March 15, 2015, at 80 FR 14248.

    II. Judicial Review

    Section 307(b)(1) of the Clean Air Act (CAA) indicates which Federal Courts of Appeals have venue for petitions for review of final EPA actions. This section provides, in part, that the petitions for review must be filed in the Court of Appeals for the District of Columbia Circuit if: (i) The agency action consists of “nationally applicable regulations promulgated, or final action taken, by the Administrator,” or (ii) such actions are locally or regionally applicable, if “such action is based on a determination of nationwide scope or effect and if in taking such action the Administrator finds and publishes that such action is based on such a determination.”

    The EPA has determined that its denial of the petition for reconsideration is nationally applicable for purposes of CAA section 307(b)(1) because the actions directly affect the OSWRO NESHAP, which is a nationally applicable regulation. Thus, any petitions for review of the EPA's decision denying the petitioners' request for reconsideration must be filed in the United States Court of Appeals for the District of Columbia Circuit by July 15, 2016.

    III. Description of Action

    On March 18, 2015, the EPA promulgated a final rule amending the OSWRO NESHAP based on the RTR conducted for the OSWRO source category. 80 FR 14248, March 18, 2015. The EPA amended the OSWRO NESHAP to revise provisions related to emissions during periods of startup, shutdown, and malfunction; to add requirements for electronic reporting of performance testing; to add monitoring requirements for pressure relief devices (PRDs); to revise routine maintenance provisions; to clarify provisions for open-ended valves and lines and for some performance test methods and procedures; and to make several minor clarifications and corrections. Subsequent to publishing the final rule, the EPA received a petition for reconsideration submitted jointly by Eastman Chemical Company and the American Chemical Council (dated May 18, 2015). This petition sought reconsideration of two of the amended provisions of the OSWRO NESHAP: (1) The equipment leak provisions for connectors, and (2) the requirement to monitor PRDs on portable containers. The EPA considered the petition and supporting information along with information contained in the OSWRO NESHAP amendment rulemaking docket (Docket ID No. EPA-HQ-OAR-2012-0360) in reaching a decision on the petition. The Agency granted reconsideration of the PRD monitoring requirement in a letter to the petitioners dated February 8, 2016. In separate letters to the petitioners dated May 5, 2016, the Administrator denied reconsideration of the equipment leak provisions for connectors and explained the reasons for the denial in these letters. These letters are available in the OSWRO NESHAP amendment rulemaking docket.

    Dated: May 5, 2016. Gina McCarthy, Administrator.
    [FR Doc. 2016-11252 Filed 5-13-16; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 123, 131, 233 and 501 [EPA-HQ-OW-2014-0461; FRL-9946-33-OW] Revised Interpretation of Clean Water Act Tribal Provision AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final interpretive rule.

    SUMMARY:

    Section 518 of the Clean Water Act (CWA), enacted as part of the 1987 amendments to the statute, authorizes EPA to treat eligible Indian tribes with reservations in a manner similar to states (TAS) for a variety of purposes, including administering each of the principal CWA regulatory programs and receiving grants under several CWA authorities. Since 1991, EPA has followed a cautious interpretation that has required tribes, as a condition of receiving TAS regulatory authority under section 518, to demonstrate inherent authority to regulate waters and activities on their reservations under principles of federal Indian common law. The Agency has consistently stated, however, that its approach was subject to change in the event of further congressional or judicial guidance addressing tribal authority under CWA section 518. Based on such guidance, EPA in the interpretive rule we are finalizing today concludes definitively that section 518 includes an express delegation of authority by Congress to Indian tribes to administer regulatory programs over their entire reservations, subject to the eligibility requirements in section 518. This reinterpretation streamlines the process for applying for TAS, eliminating the need for applicant tribes to demonstrate inherent authority to regulate under the Act and allowing eligible tribes to implement the congressional delegation of authority. The reinterpretation also brings EPA's treatment of tribes under the CWA in line with EPA's treatment of tribes under the Clean Air Act, which has similar statutory language addressing tribal regulation of Indian reservation areas. This interpretive rule does not revise any regulatory text. Regulatory provisions remain in effect requiring tribes to identify the boundaries of the reservation areas over which they seek to exercise authority and allowing the adjacent state(s) to comment to EPA on an applicant tribe's assertion of authority. This rule will reduce burdens on applicants associated with the existing TAS process and has no significant cost.

    DATES:

    This final interpretive rule is effective on May 16, 2016.

    ADDRESSES:

    EPA has established a docket for this rule under Docket ID No. EPA-HQ-OW-2014-0461. All documents in the docket are listed on the http://www.regulations.gov Web site.

    FOR FURTHER INFORMATION CONTACT:

    Thomas Gardner, Standards and Health Protection Division, Office of Science and Technology (4305T), Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460; telephone number: (202) 566-0386; email address: [email protected]

    SUPPLEMENTARY INFORMATION:

    This supplementary information section is organized as follows:

    I. General Information A. Does this interpretive rule apply to me? B. What interpretation is the Agency making? C. How was this rule developed? D. What is the Agency's authority for issuing this reinterpretation? E. What are the incremental costs and benefits of this interpretive rule? F. Judicial Review II. Background A. Statutory History B. Regulatory History III. How did EPA interpret the CWA TAS provision in 1991 when establishing TAS regulations for CWA regulatory programs? IV. What developments support EPA's revised statutory interpretation? A. Relevant Congressional, Judicial and Administrative Developments B. EPA and Tribal Experience in Processing TAS Applications for CWA Regulatory Programs V. EPA's Revised Statutory Interpretation A. What does today's reinterpretation provide and why? B. What other approaches did EPA consider? C. What is EPA's position on certain public comments and tribal and state stakeholder input? 1. Geographic Scope of TAS for Regulatory Programs 2. Treatment of Tribal Trust Lands 3. Tribal Criminal Enforcement Authority 4. Special Circumstances 5. Tribal Inherent Regulatory Authority 6. Existing Regulatory Requirements a. TAS Requirements b. Relationship to Program Approvals 7. Effects on New Tribal TAS Applications 8. Effects on EPA-Approved State Programs VI. How does the rule affect existing EPA guidance to tribes seeking to administer CWA regulatory programs? VII. Economic Analysis VIII. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review B. Paperwork Reduction Act (PRA) C. Regulatory Flexibility Act (RFA) D. Unfunded Mandates Reform Act (UMRA) E. Executive Order 13132: Federalism F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments G. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use I. National Technology Transfer and Advancement Act (NTTAA) J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations K. Congressional Review Act (CRA) I. General Information A. Does this interpretive rule apply to me?

    This rule applies to tribal governments that seek eligibility to administer regulatory programs under the Clean Water Act (CWA, or the Act). The table below provides examples of entities that could be affected by this rule or have an interest in it.

    Category Examples of potentially affected or interested entities Tribes Federally recognized tribes with reservations that could potentially seek eligibility to administer CWA regulatory programs, and other interested tribes. States States adjacent to potential applicant tribes. Industry Industries discharging pollutants to waters within or adjacent to reservations of potential applicant tribes. Municipalities Publicly owned treatment works or other facilities discharging pollutants to waters within or adjacent to reservations of potential applicant tribes.

    If you have questions regarding the effect of this interpretive rule on a particular entity, please consult the person listed in the preceding FOR FURTHER INFORMATION CONTACT section.

    B. What interpretation is the Agency making?

    Today's interpretive rule streamlines how tribes apply for TAS under CWA section 518 for CWA regulatory programs including the water quality standards program. It eliminates the need for applicant tribes to demonstrate inherent authority to regulate under the Act, thus allowing tribes to implement a delegation of authority by Congress. Specifically, EPA revises its existing interpretation of CWA section 518 to conclude definitively that this provision includes an express delegation of authority by Congress to Indian tribes to administer regulatory programs over their entire reservations, subject to the eligibility requirements in section 518.

    C. How was this rule developed?

    EPA conducted consultation and coordination with tribes and states before proposing the reinterpretation in the Federal Register on August 7, 2015. See 80 FR 47430 (August 7, 2015) (“proposed rule,” “EPA's proposal,” “proposed reinterpretation”), available in the docket for this rule. During the 60-day public comment period, EPA provided informational webinars for the public and conducted further consultation and coordination with tribes and states.

    EPA received a total of 44 comments from the public on the proposed interpretive rule. A majority (27) of the comments expressed support for the rule, including unanimous support from tribes and tribal organizations that responded. Sections IV and V address issues and questions about the proposal that commenters raised.

    Today's rule finalizes the proposal, reflecting EPA's consideration of the comments and other input received. The comments, EPA's responses to the comments, and meeting notes are available in the public docket at http://www.regulations.gov.

    D. What is the Agency's authority for issuing this reinterpretation?

    The CWA, 33 U.S.C. 1251, et seq., including section 518 (33 U.S.C. 1377).

    E. What are the incremental costs and benefits of this interpretive rule?

    This rule entails no significant cost. Its only effect will be to reduce the administrative burden for a tribe applying in the future to administer a CWA regulatory program, and to potentially increase the pace at which tribes seek such programs. See the discussion of administrative burden and cost in sections VII and VIII.B.

    F. Judicial Review

    This interpretive rule, which sets forth EPA's revised interpretation of CWA section 518, is not a final agency action subject to immediate judicial review. This interpretive rule is not determinative of any tribe's eligibility for TAS status. Rather, it notifies prospective applicant Indian tribes and others of EPA's revised interpretation. Today's interpretive rule would be subject to judicial review only in the context of a final action by EPA on a TAS application from an Indian tribe for the purpose of administering a CWA regulatory program based on the revised interpretation.

    II. Background A. Statutory History

    Congress added CWA section 518 as part of amendments made to the statute in 1987. Section 518(e) authorizes EPA to treat eligible Indian tribes in a similar manner as states for a variety of purposes, including administering each of the principal CWA regulatory programs and receiving grants under several CWA funding authorities. Section 518(e) is commonly known as the “TAS” provision, for treatment in a manner similar to a state.

    Section 518(e) establishes eligibility criteria for TAS, including requirements that the tribe have a governing body carrying out substantial governmental duties and powers; that the functions to be exercised by the tribe pertain to the management and protection of water resources within the borders of an Indian reservation; and that the tribe be reasonably expected to be capable of carrying out the functions to be exercised in a manner consistent with the terms and purposes of the Act and applicable regulations. Section 518(e) also requires EPA to promulgate regulations specifying the TAS process for applicant tribes. See section II.B.

    Section 518(h) defines “Indian tribe” to mean any Indian tribe, band, group, or community recognized by the Secretary of the Interior and exercising governmental authority over a federal Indian reservation. It also defines “federal Indian reservation” to mean all land within the limits of any reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and including rights-of-way running through the reservation.

    B. Regulatory History

    Pursuant to section 518(e), EPA promulgated several final regulations establishing TAS criteria and procedures for Indian tribes interested in administering programs under the Act. The relevant regulations addressing TAS requirements for the principal CWA regulatory programs are: 1

    1 In early 2016 EPA proposed to add criteria and procedures for tribes to obtain TAS to administer the CWA Section 303(d) Impaired Water Listing and Total Maximum Daily Load (TMDL) Program. 80 FR 2791, Jan. 19, 2016. The proposal has not yet been finalized and thus is not in effect at this time.

    • 40 CFR 131.8 for section 303(c) water quality standards (WQS). Final rule published December 12, 1991 (56 FR 64876); proposed rule published September 22, 1989 (54 FR 39098). Referred to hereafter as the “1991 WQS TAS rule” or “1991 TAS rule”;

    • 40 CFR 131.4(c) for section 401 water quality certification, published in the 1991 WQS TAS rule;

    • 40 CFR 123.31-123.34 for section 402 National Pollutant Discharge Elimination System (NPDES) permitting and other provisions, and 40 CFR 501.22-501.25 for the state section 405 sewage sludge management program. Final rule published December 22, 1993 (58 FR 67966); proposed rule published March 10, 1992 (57 FR 8522); and

    • 40 CFR 233.60-233.62 for section 404 dredge or fill permitting. Final rule published February 11, 1993 (58 FR 8172); proposed rule published November 29, 1989 (54 FR 49180).

    In 1994, EPA amended the above regulations to simplify the TAS process and eliminate unnecessary and duplicative procedural requirements. See 59 FR 64339 (December 14, 1994) (the “Simplification Rule”). For example, the Simplification Rule eliminated the need for a tribe to prequalify for TAS before applying for sections 402, 404 and 405 permitting programs. Instead, the rule provided that a tribe would establish its TAS eligibility at the program approval stage, subject to EPA's notice and comment procedures already established for state program approvals in 40 CFR parts 123 and 233. The rule retained the prequalification requirements (including local notice and comment procedures) for section 303(c) WQS and section 401 water quality certifications. Id.; see also, 40 CFR 131.8(c)(2), (3).2 The TAS regulations for CWA regulatory programs have remained intact since promulgation of the Simplification Rule.

    2 Under the CWA and EPA's regulations, tribes can apply for TAS under CWA section 518 for the purpose of administering WQS and simultaneously submit actual standards for EPA review under section 303(c). Although they can proceed together, a determination of TAS eligibility and an approval of actual water quality standards are two distinct actions.

    Today's interpretive rule does not address or affect the TAS requirements or review process for tribes to receive grants.3 The receipt of grant funding does not involve any exercise of regulatory authority. Therefore, a determination of TAS eligibility solely for funding purposes does not, under existing regulations, require an analysis or determination regarding an applicant tribe's regulatory authority.

    3 EPA has promulgated regulations governing the TAS application and review requirements for CWA grant funding programs. See, e.g., 40 CFR 35.580-588 (CWA section 106 water pollution control funding); 40 CFR 35.600-615 (CWA section 104 water quality cooperative agreements and wetlands development funding); 40 CFR 35.630-638 (CWA section 319 nonpoint source management grants).

    III. How did EPA interpret the CWA TAS provision in 1991 when establishing TAS regulations for CWA regulatory programs?

    The TAS eligibility criteria in section 518(e) make no reference to any demonstration of an applicant tribe's regulatory authority to obtain TAS. Rather, the relevant part of section 518(e)—which is section 518(e)(2)—requires only that the functions to be exercised by the tribe pertain to the management and protection of reservation water resources. As noted above, section 518(h)(1) also defines Indian reservations to include all reservation land irrespective of who owns the land. EPA nonetheless took a cautious approach when it issued the 1991 WQS TAS rule and subsequent regulations described in section II.B above. The 1991 approach required each tribe seeking TAS for the purpose of administering a CWA regulatory program to demonstrate its inherent authority under principles of federal Indian law, including gathering and analyzing factual information to demonstrate the tribe's inherent authority over the activities of nonmembers of the tribe on nonmember-owned fee lands within a reservation.4

    4 Under principles of federal Indian law, demonstrations of inherent tribal authority over such non-member activities are guided by the principles expressed in Montana v. United States, 450 U.S. 544 (1981), and its progeny.

    EPA recognized at the time that there was significant support for the proposition that Congress had intended to delegate authority to otherwise eligible tribes to regulate their entire reservations under the Act. Notably, in a plurality opinion in Brendale v. Confederated Tribes and Bands of the Yakima Nation, 492 U.S. 408 (1989), Justice White had even cited section 518 as an example of a congressional delegation of authority to Indian tribes.5 EPA also stated the Agency's interpretation that in section 518, Congress had expressed a preference for tribal regulation of surface water quality on reservations to assure compliance with the goals of the CWA. 56 FR at 64878-79. Nonetheless, in an abundance of caution, EPA opted at the time to require tribes to demonstrate, on a case-by-case basis, their inherent jurisdiction to regulate under the CWA. EPA was clear, however, that this approach was subject to change in light of further judicial or congressional guidance. Id.

    5Brendale v. Confederated Tribes and Bands of the Yakima Nation, 492 U.S. 408, 428 (1989). Although highly instructive, EPA recognized that the statement regarding section 518 was not necessary to the plurality's decision. See 56 FR at 64880. The five Justices not joining Justice White's opinion did not discuss the CWA provision.

    For further details about EPA's 1991 interpretation of the CWA TAS provision, see section III of EPA's proposal. 80 FR at 47433-34.

    IV. What developments support EPA's revised statutory interpretation? A. Relevant Congressional, Judicial and Administrative Developments

    Since 1991, EPA has taken final action approving TAS for CWA regulatory programs for 53 tribes.6 Three of those decisions were challenged in judicial actions. The last challenge concluded in 2002. In each of the cases, the reviewing court upheld EPA's determination with respect to the applicant tribe's inherent authority to regulate under the CWA. Wisconsin v. EPA, Case No. 96-C-90 (E.D. Wis. 1999), aff'd, 266 F.3d 741 (7th Cir. 2001), cert. denied, 535 U.S. 1121 (2002) (Sokaogon Chippewa Community); Montana v. EPA, 941 F. Supp. 945 (D. Mont. 1996), aff'd, 137 F.3d 1135 (9th Cir.), cert. denied, 525 U.S. 921 (1998) (Confederated Salish and Kootenai Tribes of the Flathead Reservation); Montana v. EPA, 141 F.Supp.2d 1259 (D. Mont. 1998) (Assiniboine and Sioux Tribes of the Fort Peck Reservation).7

    6 The site http://www.epa.gov/wqs-tech/epa-approvals-tribal-water-quality-standards provides a list of tribes with TAS eligibility for the section 303(c) water quality standards and section 401 water quality certification programs. To date, EPA has not approved TAS for any tribe for CWA section 402 or section 404 permitting.

    7 EPA was also upheld in the only case challenging the Agency's approval of actual tribal water quality standards under CWA section 303(c) (which is a distinct action from EPA's approval of tribal TAS eligibility under section 518). City of Albuquerque v. Browner, 97 F.3d 415 (10th Cir. 1996), cert. denied, 522 U.S. 965 (1997) (water quality standards of Isleta Pueblo).

    Notably, the first court to review a challenge to an EPA CWA TAS approval expressed the view that the statutory language of section 518 indicated plainly that Congress intended to delegate authority to Indian tribes to regulate water resources on their entire reservations, including regulation of non-Indians on fee lands within a reservation. Montana v. EPA, 941 F. Supp. at 951-52. In that case, the applicant tribe, participating as amicus, argued that the definition of “Federal Indian reservation” in CWA section 518(h)(1)—which expressly includes all land within the limits of a reservation notwithstanding the issuance of any patent—combined with the bare requirement of section 518(e) that the functions to be exercised by the applicant tribe pertain to reservation water resources, demonstrates that section 518 provides tribes with delegated regulatory authority over their entire reservations, including over non-Indian reservation lands. Id. Because EPA had premised its approval of the TAS application at issue upon a showing of tribal inherent authority, it was unnecessary for the district court to reach the delegation issue as part of its holding in the case. Nonetheless, the court readily acknowledged that section 518 is properly interpreted as an express congressional delegation of authority to Indian tribes over their entire reservations. The court noted that the legislative history might be ambiguous, although only tangentially so, since the bulk of the legislative history relates to the entirely separate issue of whether section 518(e) pertains to non-Indian water quantity rights, which it does not. Id. The court observed the established principle that Congress may delegate authority to Indian tribes—per United States v. Mazurie, 419 U.S. 544 (1975)—and commented favorably on Justice White's statement regarding section 518 in Brendale. Id. The court also noted that a congressional delegation of authority to tribes over their entire reservations “comports with common sense” to avoid a result where an interspersed mixing of tribal and state WQS could apply on a reservation depending on whether the waters traverse or bound tribal or non-Indian reservation land. Id. Having thus analyzed CWA section 518, the court concluded—albeit in dicta—that Congress had intended to delegate such authority to Indian tribes over their entire reservations.

    The TAS provision of a separate statute—the Clean Air Act (CAA)—and the review of that provision in court provide additional relevant guidance (both congressional and judicial) regarding legislative intent to treat Indian reservations holistically for purposes of environmental regulation by delegating authority over such areas to eligible Indian tribes. Congress added the CAA TAS provision—section 301(d)—to the statute in 1990, only three years after it enacted CWA section 518. Although CAA section 301(d) pre-dates EPA's 1991 CWA TAS rule, it was not until 1998 that EPA promulgated its regulations interpreting the CAA TAS provision as an express congressional delegation of authority to eligible Indian tribes. 40 CFR part 49; 63 FR 7254 (February 12, 1998) (the “CAA Tribal Authority Rule”). The U.S. Court of Appeals for the D.C. Circuit upheld that interpretation two years later. Arizona Public Service Co. v. EPA, 211 F.3d 1280 (D.C. Circuit 2000) (“APS”), cert. denied, 532 U.S. 970 (2001). As described below, in the preamble to the CAA Tribal Authority Rule and in APS, EPA and the D.C. Circuit considered significant similarities between the CWA and CAA tribal provisions. With the benefit of the court's careful review in APS, EPA believes that enactment of the CAA TAS provision in 1990 provides useful guidance from Congress regarding its similar intent in 1987 to provide for uniform tribal regulation of mobile environmental pollutants within reservations. Relevant aspects and treatment of the CAA TAS provision are described below.

    EPA finalized its regulations implementing CAA section 301(d) in 1998. The CAA TAS provision, combined with the definition of Indian tribe in CAA section 302(r), established the same basic TAS eligibility criteria for CAA purposes that apply under the CWA: i.e., federal recognition, tribal government carrying out substantial duties and powers, jurisdiction, and capability. With regard to jurisdiction, EPA carefully analyzed the language and legislative history of the relevant portion of the CAA TAS provision, CAA section 301(d)(2)(B), and concluded that Congress had intended to delegate authority to eligible Indian tribes to administer CAA regulatory programs over their entire reservations irrespective of land ownership—e.g., including over nonmember fee lands within the reservation. 63 FR at 7254-57. EPA determined that the language of the provision distinguished between reservation and non-reservation areas over which tribes could seek TAS eligibility and plainly indicated Congress' intent that reservations will be under tribal jurisdiction. Id. By contrast, for non-reservation areas, tribes would need to demonstrate their inherent authority to regulate under principles of federal Indian law. Id.

    EPA noted at that time important similarities between the CAA and CWA TAS provisions. Most notably, the tribal provisions of both statutes expressly provide eligibility for tribal programs that pertain to the management and protection of environmental resources (i.e., air and water, respectively) located on Indian reservations. Id. at 7256. For instance, CAA section 301(d) provides for tribal regulation of air resources “within the exterior boundaries of the reservation” without any requirement for a demonstration by applicant tribes of separate authority over such reservation areas. CAA section 301(d)(2)(B). Similarly, CWA section 518 provides eligibility for tribal programs covering water resources “within the borders of an Indian reservation” and expressly defines Indian reservations to include all land within the reservation notwithstanding the issuance of any patent and including rights-of-way. CWA sections 518(e)(2), (h)(1). By their plain terms, both statutes thus treat reservation lands and resources the same way and set such areas aside for tribal programs. At the time EPA promulgated the CAA Tribal Authority Rule, however, EPA viewed the CAA—which also contained other provisions addressing tribal roles—and its legislative history as more conclusively demonstrating congressional intent to delegate authority to eligible tribes over their reservations. Id. EPA recognized that this resulted in different approaches to two similar TAS provisions and reiterated that the question remained open as to whether the CWA provision is also an express delegation of authority to eligible tribes. Id. EPA also cited to the district court decision in Montana v. EPA, which, as noted above, concluded that CWA section 518 plainly appears to delegate such authority to Indian tribes. Id.

    Several parties petitioned for judicial review of the CAA Tribal Authority Rule and challenged whether CAA section 301(d) could be properly interpreted as a delegation of authority by Congress to eligible Indian tribes. APS, 211 F.3d at 1287-92. The D.C. Circuit carefully analyzed CAA section 301(d), the relevant legislative history, and the judicial precedent on delegations of authority to Indian tribes and concluded that EPA's interpretation comported with congressional intent. Id. The court acknowledged the similarities between the CAA and CWA TAS provisions, as well as EPA's different approach under the CWA. Id. at 1291-92. However, the court also noted with significance that EPA's approach under the CWA had not been subjected to judicial review and observed favorably the district court's statements in Montana v. EPA that section 518 plainly indicates congressional intent to delegate authority to Indian tribes. Id. Ultimately, the D.C. Circuit recognized that EPA had taken a cautious approach under the CWA but that there was no reason EPA must do so again under the CAA. Id.

    A dissenting judge in the APS case disagreed that CAA section 301(d)(2)(B) expressed congressional intent to delegate authority to tribes over their reservations. Id. at 1301-05. Notably, the dissent's view was predicated largely on the absence in section 301(d)(2)(B) of language explicitly describing the reservation areas over which tribes would exercise CAA jurisdiction as including all reservation lands notwithstanding the issuance of any patent and including rights-of-way running through the reservation (emphasis added). Id. The dissent viewed this language as critical to an expression of congressional intent that tribes are to exercise delegated authority over all reservation lands, including lands owned by nonmembers of the tribes. Id. And in the absence of such language—which the dissent referred to as “the gold standard for such delegations”—the dissent did not view CAA section 301(d)(2)(B) as expressing Congress' intent to relieve tribes of the need to demonstrate their inherent authority to regulate under the CAA, including a demonstration of inherent authority over nonmember activities on fee lands under the Supreme Court's Montana test. Id. at 1303-04.8 Notably, the dissent observed that the key “notwithstanding” language is, in fact, included in the relevant tribal provisions of the CWA—i.e., in the definition of “federal Indian reservation” in CWA section 518(h)(1). Id. at 1302 (referencing Brendale, 492 U.S. at 428). The dissent noted that in spite of the statement in Brendale, EPA had determined not to treat CWA section 518 as a congressional delegation; however, the dissent also observed that no court had yet resolved the issue. Id.

    8 The dissent in APS also concluded that a separate provision of the CAA—section 110(o)—expressly delegates authority to eligible Indian tribes over their entire reservations for the specific CAA program addressed in that provision. Id. at 1301-02. Section 110(o) includes the key language cited by the dissent as indicative of express congressional delegations of authority to tribes over their reservations. Id.

    As the D.C. Circuit stated in APS, no court has yet reviewed EPA's interpretation of tribal regulation under the CWA on the question of whether CWA section 518 constitutes an express delegation of authority from Congress to eligible Indian tribes to regulate water resources throughout their reservations. Importantly, members of the three courts that have considered the issue have favorably viewed such an interpretation: The U.S. Supreme Court in Brendale, the federal district court in Montana v. EPA, and the D.C. Circuit in APS.

    In light of these developments, as well as EPA's experience administratively interpreting and implementing the CAA TAS provision, it is appropriate to revisit and revise EPA's approach to TAS under the CWA. In the preambles to the CWA TAS regulations from the 1990s, EPA discussed the possibility of reinterpreting CWA section 518 as an express congressional delegation of authority to tribes based on subsequent congressional or judicial guidance. Additionally, in 2011 EPA discussed the possible reinterpretation of section 518 in a review of EPA's legal authorities that could help advance environmental justice.9 Today's rule accomplishes such a reinterpretation.

    9Plan EJ 2014: Legal Tools, Office of General Counsel, EPA, December 2011. See http://www3.epa.gov/environmentaljustice/plan-ej/index.html.

    Consideration of Comments

    EPA received numerous comments on the proposed rule addressing the Agency's rationale for revising its interpretation of section 518. All eighteen Indian tribes and the three tribal organizations that commented expressed strong support for the rule. Two states also expressed support for tribal opportunities to obtain TAS. Several members of the public also supported the rule, including a member of the Indian law academic community. Supportive commenters agreed that the plain language of section 518 indicates Congress' intent to delegate authority to tribes to regulate their entire reservations under the CWA and that the cited case law developments provide additional support for the revised interpretation and a solid basis for EPA to finalize the rule. Commenters noted the similarities between the CWA and CAA tribal provisions and supported EPA's effort to harmonize the treatment of Indian reservations under both statutes. Some comments asserted that EPA should have treated section 518 as a congressional delegation all along and argued that requiring tribes to demonstrate inherent authority to regulate under the CWA had imposed requirements not included in the statute and may have exceeded EPA's authority. EPA appreciates the commenters' support for the rule.

    EPA also received comments from several other states, a local government, a local government association, two operating agents of industrial facilities, and one member of the public disagreeing with, or questioning, in whole or in part EPA's rationale for the revised interpretation of section 518. These comments assert that EPA's legal analysis does not support the change in statutory interpretation; that there has been no definitive court ruling on the proper interpretation of section 518; and that the judicial statements regarding section 518 that EPA cited in the proposal represent dicta and not actual court holdings on the CWA question. The comments also argue that the relevant CWA legislative history does not support the revised interpretation and note that Congress has been aware of EPA's prior interpretation since 1991 but has taken no action to correct it, notwithstanding that Congress amended section 518 in 2000. Commenters also point to a backdrop of U.S. Supreme Court case law addressing limitations on inherent tribal authority with regard to the activities of non-tribal members and assert that the revised interpretation would run counter to that line of jurisprudence. The comments also assert that differences between the CWA and CAA and between water and air quality issues support treating reservations differently under the two statutes.

    EPA appreciates but disagrees with these comments. EPA recognizes that the various judicial statements supporting the Agency's interpretation of section 518 as a congressional delegation were not central to the holdings of the relevant cases. This is not surprising in light of the fact that EPA has not previously approved a TAS application based on this interpretation of section 518. Because EPA has premised its prior TAS approvals on demonstrations of inherent tribal regulatory authority, there would be no opportunity in the ordinary course of judicial review to join the open question regarding the proper interpretation of the statute. Nonetheless, the commenters undervalue the significance of the cited judicial statements. For instance, although the district court in Montana v. EPA did not need to decide the issue to uphold EPA's approval of the Salish and Kootenai Tribes' TAS application, the question of whether section 518 delegates authority to tribes was squarely presented and subjected to the court's careful analysis. The court reviewed the statutory language and legislative history and clearly articulated its view (albeit not its holding) that section 518 is properly interpreted as a delegation of authority to tribes. The D.C. Circuit also expressly considered section 518 during its review of the CAA tribal provision in APS, with the dissenting judge going so far as to cite the CWA as including the gold standard of statutory language to delegate authority to tribes over their reservations. EPA continues to view these statements as significant judicial guidance. EPA also continues to view the reference to section 518 in Justice White's opinion in Brendale as an important observation from the highest federal court that the CWA reflects congressional intent to delegate authority to tribes. EPA recognizes that the reference was not necessary to the plurality's opinion and that the opinion does not include an analysis of section 518. For these and other reasons, EPA opted to proceed cautiously in 1991 and await further guidance. But EPA's deliberate approach in no way discounts or diminishes the value of Justice White's statement toward a proper interpretation of section 518. Viewed as a whole, the various judicial statements regarding section 518 provide ample support for EPA's revised interpretation.

    EPA is also aware of the separate Supreme Court jurisprudence addressing inherent tribal authority over nonmembers on Indian reservations. This is, of course, the same line of authority that EPA has previously applied when tribes sought to regulate the activities of nonmembers under the CWA. Retained inherent authority is, however, only one of the means by which tribes may exercise authority over their reservations and, in particular, over the activities of nonmembers. The Supreme Court has long recognized Congress' broad power to delegate authority to Indian tribes, including the authority to regulate the conduct of nonmembers of the tribes. See, e.g., United States v. Mazurie, 419 U.S. 544 (1975). Such delegations are neither inconsistent with, nor in opposition to, any limitations on retained tribal inherent authority. Instead, they are a proper exercise of Congress' plenary power under the U.S. Constitution with respect to Indian tribes. As with the CAA tribal provision, such delegations may be appropriately designed to address situations where Congress views coherent management of reservation resources by tribal governments as an appropriate means to carry out the purposes of a federal statute on Indian reservations. As noted above, EPA has long viewed the CWA tribal provision as expressing a congressional preference for tribal regulation of reservation water resources. EPA has now taken the related step of reconsidering and revising its interpretation of section 518 to reflect Congress' intent to delegate the requisite authority to tribes to effectuate such regulation.

    EPA also acknowledges that the legislative history of section 518 is inconclusive regarding congressional intent to delegate authority to tribes. The commenters, however, overstate the degree to which the legislative record indicates an absence of such intent. EPA carefully analyzed this legislative history in the preamble to the 1991 WQS TAS rule and found that the record includes statements that can be interpreted to support either view. The absence of clarity in the record was among the reasons EPA opted to proceed initially with a high degree of caution and impose a requirement not otherwise reflected in the CWA that tribes demonstrate inherent authority to regulate under the statute. Notably, in 1996 the district court in Montana v. EPA also reviewed this legislative history and, while observing that the record may be ambiguous, reasoned that it was only arguably so because the bulk of the congressional statements were actually collateral to the issue and addressed the separate question of whether section 518 affected tribal water quantity rights (which it does not). More importantly, the key to a congressional delegation of authority is found in the express language of the statute, and not between the lines of recorded statements of particular congressional members. In relevant part, section 518(e) requires only that the CWA functions to be exercised by an applicant tribe pertain to reservation water resources, and section 518(h)(1) then uses the “gold standard” language to define such reservations to include all reservation lands irrespective of ownership. This language expresses clear congressional intent to delegate authority without any separate requirement that applicant tribes meet an additional jurisdictional test.

    EPA also finds the absence of any action by Congress to correct EPA's prior cautious approach to be unpersuasive on the issue of congressional intent. No amendment to the statute was needed to reflect Congress' intent, since the language of section 518 already expressly delegates authority to tribes. EPA is also unaware of any request considered by Congress to revise section 518 with regard to this question or otherwise apprise EPA of its intent to delegate authority. Further, although EPA's prior interpretation has resulted in some additional burdens and delays in processing TAS applications, EPA has never disapproved a CWA TAS application based on an absence of tribal regulatory authority (or for any other reason), and thus has never taken an action directly inconsistent with Congress' intent to delegate authority to tribes. In these circumstances, it would be inappropriate to interpret congressional inaction as a ratification of EPA's prior approach to section 518.

    Further, the fact that Congress in 2000 enacted a separate targeted amendment to section 518 to make a newly created program available to tribes without also addressing tribal regulatory authority sheds no light on the question. In 2000, Congress enacted the coastal recreation water quality monitoring and notification provision at section 406 of the CWA and also provided that tribes should be able to obtain TAS for that program. The fact that Congress did not further amend the statute at that time to address tribal regulatory authority is unrevealing regarding its prior intent in 1987 to delegate authority to tribes. For the reasons described above, there was no substantial cause for Congress to address tribal jurisdiction at that time. In addition, the legislative history of the 2000 amendment is consistent with Congress' narrow purpose to insert section 406 into the list of programs identified in section 518 for potential TAS. It does not indicate any consideration of the issue of tribal regulatory authority. Further, CWA section 406 establishes a funding and monitoring program. It does not entail the exercise of any regulatory authority by states or tribes. It would have been highly anomalous for Congress to address tribal regulatory authority as an adjunct to establishing a TAS opportunity for a non-regulatory program. In these circumstances, EPA declines to interpret congressional inaction as a tacit approval or adoption of EPA's prior approach to tribal authority.

    Finally, EPA continues to view the analogy between CWA and CAA regulation, and between the tribal provisions of the two statutes, as supportive of today's rule. Although there are differences between the two statutes and their relevant histories, both evince a clear congressional intent (only three years apart) to treat Indian reservations holistically and to provide for tribal regulation of mobile pollutants on reservations irrespective of land ownership. The CAA, which authorizes TAS over both reservation and non-reservation lands, expresses the delegation of authority by distinguishing between those two categories and clearly placing reservations within tribal jurisdiction. The CWA authorizes TAS solely for reservations. The statute is thus somewhat more limited in the geographic scope of potential TAS, but, as a result, it more directly expresses the delegation of authority over the covered reservation areas. Section 518(e)(2) requires only that the tribal program pertain to reservation water resources, and section 518(h)(1) unambiguously defines reservations to include all reservation land notwithstanding ownership. EPA also disagrees with a comment suggesting that differences between airsheds and watersheds within Indian reservations support treating the two statutes' tribal provisions differently. In particular, the comment notes that watersheds can have defined beds and banks that cross lands with disparate ownership patterns. EPA notes that the same is essentially true of airsheds, which cover reservation lands without regard to ownership. As noted by the district court in Montana v. EPA, the congressional delegation of authority to tribes thus comports with common sense by avoiding checkerboarded regulation within a reservation based on land ownership. Montana v. EPA, 941 F. Supp. At 951-52.

    B. EPA and Tribal Experience in Processing TAS Applications for CWA Regulatory Programs

    Based on EPA's experience to date, the TAS application process has become significantly more burdensome than EPA anticipated in 1991. Many authorized tribes have informed EPA that the demonstration of inherent tribal authority, including application of the test established in Montana v. U.S. regarding tribal inherent authority over the activities of non-tribal members on nonmember fee lands, constituted the single greatest administrative burden in their application processes.

    In the 1991 TAS rule, EPA expressed its expert view that given the importance of surface water to tribes and their members, the serious nature of water pollution impacts, and the mobility of pollutants in water, applicant Indian tribes would generally be able to demonstrate inherent regulatory authority to set WQS for reservation waters, including as applied to nonmembers on fee lands under federal Indian law principles. Id. at 64877-79. In light of the Agency's generalized findings regarding the relationship of water quality to tribal health and welfare, EPA noted that a tribe could likely meet the Montana test by making a relatively simple factual showing that (1) there are waters within the subject reservation used by the tribe or its members, (2) the waters are subject to protection under the CWA, and (3) impairment of the waters by nonmember activities on fee lands would have serious and substantial effects on tribal health and welfare. Id. at 64879. EPA thus anticipated in the early 1990s that applicant tribes would face a relatively simple initial burden of supplying basic facts to demonstrate that they retain requisite inherent authority to regulate under the CWA—including regulation of nonmember activities on fee lands—under established federal Indian law principles. Id.

    Unfortunately, EPA's expectations have not, as a general matter, been realized. Although each TAS application has varied according to the particular facts and circumstances of the applicant tribe and its reservation, the general experience confirms that demonstrations of inherent regulatory authority continue to impose unintended administrative burden on applicant tribes and to require substantial commitments of limited tribal and federal resources. In particular, the demonstration of inherent authority over nonmember activities on the reservation under the so-called Montana test has created the most significant and widespread burden and at the same time provides no information necessary for EPA's oversight of the regulatory program. Tribes have repeatedly expressed their concern that the demonstration of inherent authority on a case-by-case basis is challenging, time consuming and costly. EPA's information about the tribes that it has found eligible to administer WQS and section 401 certifications indicates that tribal applications for reservations with nonmember fee lands, which require an analysis of tribal inherent authority under Montana, took 1.6 years longer to be approved, on average, than applications for reservations without such lands.

    The elimination of such unintended administrative burdens does not, in itself, provide a legal rationale to alter EPA's interpretation of section 518. However, streamlining a TAS process that has become unnecessarily restrictive and burdensome does offer a strong policy basis for the Agency to take a careful second look at that provision and to consider—as it contemplated as early as 1991—whether intervening events have shed additional light on the appropriate statutory interpretation. Eliminating such unnecessary burdens is consistent with longstanding EPA and Executive policy to support tribal self-determination and promote and streamline tribal involvement in managing and regulating their lands and environments. See, e.g., Executive Order 13175 (65 FR 67249, November 9, 2000); Presidential Memorandum: Government-to-Government Relations with Native American Tribal Governments (59 FR 22951, April 29, 1994); EPA Policy for the Administration of Environmental Programs on Indian Reservations (November 8, 1984).

    As explained in section III, EPA has long interpreted the CWA as expressing Congress' preference for tribal regulation of reservation surface water quality. See, e.g., 56 FR at 64878. As explained in section IV.A, relevant developments definitively confirm that section 518 includes an express delegation of authority by Congress to eligible tribes to regulate water resources under the CWA throughout their entire reservations.

    V. EPA's Revised Statutory Interpretation A. What does today's revised interpretation provide and why?

    EPA today revises its interpretation of CWA section 518 and concludes definitively that Congress expressly delegated authority to Indian tribes to administer CWA regulatory programs over their entire reservations, including over nonmember activities on fee lands within the reservation of the applicant tribe, subject to the eligibility requirements in section 518. In doing so, EPA thus exercises the authority entrusted to it by Congress to implement the CWA TAS provision.

    The effect of this interpretive rule is to relieve a tribe of the need to demonstrate its inherent authority when it applies for TAS to administer a CWA regulatory program. An applicant tribe still needs to meet all other eligibility requirements specified in CWA section 518 and EPA's implementing regulations. Nonetheless, this rule eliminates any need to demonstrate that the applicant tribe retains inherent authority to regulate the conduct of nonmembers of the tribe on fee lands under the test established by the Supreme Court in Montana v. U.S. Instead, an applicant tribe can generally rely on the congressional delegation of authority in section 518 as the source of its authority to regulate its entire reservation under the CWA without distinguishing among various categories of on-reservation land. The tribe may, however, need to supply additional information to address any potential impediments to the tribe's ability to effectuate the delegation of authority.

    EPA bases its revised interpretation of CWA section 518 on its analysis in section IV above and a careful consideration of comments received. Most importantly, EPA's revised interpretation is based on the plain text of section 518 itself. Section 518(e)(2) requires only that the functions to be exercised by the applicant Indian tribe pertain to the management and protection of water resources “within the borders of an Indian reservation.” Section 518(h)(1) then defines the term “federal Indian reservation to include all lands within the limits of any Indian reservation notwithstanding the issuance of any patent, and including rights-of-way running through the reservation. That definition is precisely the same language that the dissent in APS stated is the “gold standard” for an express congressional delegation of regulatory authority to tribes over their entire reservations. APS, 211 F.3d at 1302-03. It is also the language that the U.S. Supreme Court reviewed in finding congressional delegations to tribes in other cases. United States v. Mazurie, 419 U.S. 544 (1975) (delegation of authority to tribes regarding regulation of liquor); Rice v. Rehner, 463 U.S. 713 (1983) (same). Although the legislative history of section 518 has, of course, remained unaltered since 1987, the plain language of the statute and the above-described developments provide ample support for the revised interpretation.

    As EPA explained in section IV.A in connection with the CAA, such a territorial approach that treats Indian reservations uniformly promotes rational, sound management of environmental resources that might be subjected to mobile pollutants that disperse over wide areas without regard to land ownership. See 59 FR at 43959. As specifically recognized by the district court in Montana v. EPA, the same holds true for regulation under the CWA. Montana, 941 F. Supp. at 952.

    B. What other approaches did EPA consider?

    EPA considered not revising its 1991 interpretation of section 518. EPA did not choose this option because it would continue to impose an unnecessary requirement on applicant tribes not specified in the CWA to demonstrate inherent authority, including meeting the Montana test regarding activities of nonmembers on their reservation fee lands, when they apply to regulate under the statute.

    EPA also considered revising the text of existing TAS regulations for CWA regulatory programs to alter tribal application requirements in light of the revised interpretation. In particular, EPA considered revising the requirements relating to tribal submissions of statements addressing jurisdiction as well as the procedures for states and other appropriate entities to comment on tribal assertions of authority. Had EPA decided to revise its regulations, EPA would have issued a legislative rule revising the TAS application provisions in the Code of Federal Regulations. However, EPA rejected this approach as both unnecessary and counterproductive. As described in section V.C.6, EPA concludes that the existing regulations are appropriately structured to accommodate the revised interpretation and that the procedures requiring tribal legal statements and providing opportunities for notice and comment continue to serve important purposes. Among other things, such procedures ensure that applicant tribes will continue to adequately address the reservation boundaries within which they seek to regulate under the CWA as well as any potential impediments that may in some cases exist to their ability to accept or effectuate the congressional delegation of authority. Retaining the notice and comment requirements will also ensure that states and other appropriate entities continue to have an opportunity to interact with EPA on these issues and that EPA's decision making on individual TAS applications is well informed.

    Because today's interpretive rule merely explains EPA's revised interpretation of existing statutory requirements established in the CWA tribal provision—and does not make any changes to the existing regulations—an interpretive rule is the appropriate vehicle to announce EPA's revised approach.

    Consideration of Comments

    One state commented that EPA must use a legislative rulemaking process because the revised interpretation will eliminate the existing regulatory requirement that applicant tribes submit a statement addressing their jurisdiction and will affect states' opportunity under the regulations to comment on tribal jurisdiction. A local government also expressed concern with EPA's statement in the proposal that the interpretive rule is not subject to notice and comment requirements of the Administrative Procedure Act.

    EPA disagrees that a legislative rulemaking is required to issue the revised interpretation. As noted above, EPA has decided not to revise any existing TAS application regulations published in the Code of Federal Regulations. Contrary to the state commenter's assertion, EPA specifically decided to retain the regulatory requirements relating to tribal jurisdictional statements and states' opportunity to comment on such assertions. Although EPA could reasonably have chosen to revise or eliminate aspects of these regulations, EPA has concluded that requiring applicant tribes to submit relevant jurisdictional information and allowing states and other appropriate entities to comment on such submissions will continue to ensure that any reservation boundary or other relevant jurisdictional issues are raised during a well-informed decision making process.

    Importantly, although this interpretive rule is not subject to notice and comment requirements of the Administrative Procedure Act, EPA decided to provide notice and an opportunity for comment—in addition to other pre- and post-proposal outreach to tribes, states, and the public—to increase transparency and to allow interested parties to provide their views. EPA received comments on the proposal and has considered them in developing today's rule. A member of the academic community expressly supported EPA's use of an interpretive rule as the appropriate administrative mechanism to publish the revised interpretation. EPA appreciates that support.

    C. What is EPA's position on certain public comments and tribal and state input?

    In this section, EPA responds to several specific topics that were raised in public comments on EPA's proposal and in earlier input received from tribes and states during pre-proposal and post-proposal outreach.

    1. Geographic Scope of TAS for Regulatory Programs

    EPA's final rule does not affect—either by expanding or contracting—the geographic scope of potential tribal TAS eligibility under the CWA. Under section 518, tribes can only obtain TAS status over waters within the borders of their reservations. See, e.g., 56 FR at 64881-82. Thus, under any approach to tribal regulatory authority under the CWA, tribal TAS eligibility under the CWA is limited to managing and protecting water resources within Indian reservations. Tribes can seek TAS with respect to water resources pertaining to any type of on-reservation land, including, for example, reservation land held in trust by the United States for a tribe, reservation land owned by or held in trust for a member of the tribe, and reservation land owned by non-tribal members. Conversely, tribes cannot obtain TAS under the CWA for water resources pertaining to any non-reservation Indian country 10 or any other type of non-reservation land.11 Today's rule does not alter that basic limitation of TAS under the CWA.

    10 Indian country is defined at 18 U.S.C. 1151 as: (a) All land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation; (b) all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state; and (c) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same. Indian reservations are thus a subset of the broader geographic area that comprises Indian country as a whole.

    11 Many tribes have rights to hunt, fish, gather resources, or perform other activities in areas outside of their reservations. To the extent the lands on which these rights are exercised are not Indian reservation lands as defined at 18 U.S.C. 1151(a), tribes cannot obtain TAS under the CWA for water resources pertaining to such lands.

    Consideration of Comments

    EPA received comments from several local governments seeking clarification of the geographic scope of TAS for CWA regulatory purposes and in particular noting that some reservations have complex histories of congressional treatment, including the opening of reservations to non-Indian settlement through surplus land acts. The commenters assert that each surplus land statute must be analyzed individually to determine whether it has altered the land status of the subject reservation and note that in some cases such statutes may result in situations where certain lands are taken out of reservation status, even though they remain surrounded by the original exterior boundaries of a reservation. The commenters request that EPA define the fee-owned lands that may be covered by a TAS application to exclude lands settled by non-tribal members pursuant to a federal surplus land act. One tribal commenter noted that there may be non-reservation inholdings that are surrounded by reservation lands and disagreed with EPA's approach of requiring that all lands subject to TAS for CWA regulatory purposes qualify as Indian reservation land. A state commenter agreed with EPA that reservation boundaries remain a relevant issue for tribal TAS applications and noted that EPA's revised interpretation would not reduce any burdens associated with resolving such issues.

    EPA notes that any issues regarding the geographic scope of TAS under the CWA are outside the scope of this interpretive rule. As noted above and in the proposal, the revised interpretation does not alter in any way EPA's longstanding approach to the limitation of TAS in CWA section 518 to lands that qualify as reservation lands. This basic geographic land status limitation exists irrespective of whether tribes must demonstrate inherent authority to regulate under the CWA or whether they may rely on the congressional delegation of authority in section 518.

    EPA appreciates the local governmental commenters' questions and understands that some Indian reservations may have complicated histories and that reservation boundaries may be altered by congressional act. EPA agrees that any such issue would need to be addressed on a reservation-specific basis and that each relevant surplus lands statute would need to be evaluated individually. Such issues would thus be raised and addressed only in the context of a particular TAS application from a specific tribe. To provide additional clarity, however, EPA reiterates as a general matter that any land subject to TAS approval for CWA regulatory purposes must qualify as Indian reservation land as defined in CWA section 518(h)(1). Thus, consistent with EPA's longstanding approach, any non-reservation land could not be included in a CWA TAS approval even if it is surrounded by other land that does qualify as reservation. Any land located within the original exterior boundaries of a reservation that has lost its reservation status by virtue of an act of Congress could thus not be included in a CWA TAS approval. EPA has never approved CWA TAS over such non-reservation land, and would have no authority to do so. EPA thus disagrees with the tribal commenter that non-reservation inholdings may be included in a TAS approval under the CWA. This limitation is imposed in the statute, and nothing in today's final rule alters or affects EPA's approach on this issue. EPA does not believe, however, that the Agency should establish a separate definition for “fee lands” that may be included in a CWA TAS application. Section 518(h)(1) of the CWA already provides the applicable definition of federal Indian reservations for purposes of the statute, and there is no need for an additional definition. Further, as noted by the commenters, each surplus land act must be viewed on its own terms and in light of its own history and treatment. It would thus be inappropriate to establish a single one-size-fits-all approach to lands that have passed to non-tribal members pursuant to such a statute. Only where such lands are determined to have lost their reservation status would they be outside the scope of TAS under the CWA. EPA also agrees with the state commenter that any issues relating to reservation boundaries will remain relevant to the TAS application process. Although today's rule does not reduce any burdens associated with resolving such issues, it also does not increase any such burdens. The need for tribes to demonstrate their reservation boundaries as part of a TAS application is beyond the scope of—and is not affected by—today's rule.

    2. Treatment of Tribal Trust Lands

    Today's revised interpretation does not alter EPA's longstanding approach to tribal trust lands. Indian reservations include trust lands validly set aside for Indian tribes even if such lands have not formally been designated as an Indian reservation. Many named Indian reservations were established through federal treaties with tribes, federal statutes, or Executive Orders of the President. Such reservations are often referred to as formal Indian reservations. Many tribes have lands that the United States holds in trust for the tribes, but that have not been formally designated as reservations. Under EPA's longstanding approach, and consistent with relevant judicial precedent, such tribal trust lands are informal reservations and thus have the same status as formal reservations for purposes of the Agency's programs. See, e.g., 56 FR at 64881; 63 FR at 7257-58; APS, 211 F.3d at 1292-94. Tribes have always been able to seek TAS over such tribal trust lands for CWA purposes (several tribes have done so previously), and nothing in today's revised interpretation alters or affects their ability to do so.

    Consideration of Comments

    One state commenter requested additional clarification regarding the treatment of tribal trust lands for CWA TAS purposes, and in particular inquired whether tribal trust lands outside the borders of a tribe's formal reservation would be included in the statute's definition of reservation. Although this issue is outside the scope of—and is not affected by—today's interpretive rule, EPA welcomes the opportunity to provide further clarity. EPA notes that some tribes may have tribal trust lands in addition to, and separate from, a formal reservation. For other tribes, such tribal trust lands may constitute the tribe's entire reservation land base. In either case, the tribal trust lands qualify as reservation lands for CWA TAS purposes. All such lands are thus within the borders of an Indian reservation for purposes of the statute.

    3. Tribal Criminal Enforcement Authority

    EPA's revised statutory interpretation does not affect any existing limitations on tribal criminal enforcement authority. This interpretive rule relates solely to applicant Indian tribes' civil regulatory authority to administer CWA regulatory programs on their reservations; it does not address or in any way alter the scope of tribal criminal enforcement jurisdiction. EPA is aware that federal law imposes certain significant limitations on Indian tribes' ability to exercise criminal enforcement authority, particularly with regard to non-Indians. EPA has previously established regulations addressing implementation of criminal enforcement authority on Indian reservations for those CWA programs that include potential exercises of such authority. See, e.g., 40 CFR 123.34, 233.41(f). These regulations provide that the federal government will retain primary criminal enforcement responsibility in those situations where eligible tribes do not assert or are precluded from exercising such authority.

    Consideration of Comments

    Two industry commenters asserted that the limitations on a tribe's authority to impose the criminal sanctions that are specified as potential penalties in the CWA render the tribe unable to demonstrate that it is capable of carrying out required program functions for purposes of TAS eligibility. This issue is outside the scope of—and is not affected by—today's interpretive rule. As noted above, this rule addresses only the civil regulatory authority of applicant tribes. The rule also does not address the capability element of TAS eligibility under the CWA. Nonetheless, EPA notes that it disagrees with the commenters' assertion—which, if correct, would presumably preclude any tribe from demonstrating TAS eligibility for a CWA regulatory program that includes a criminal enforcement component. As described above, EPA's existing TAS regulations provide that the federal government will exercise primary criminal enforcement authority where tribal authority is limited or precluded. These regulations were promulgated to avoid precisely the outcome asserted by the commenters. The regulations have been in place for decades, and they are unaffected by today's interpretive rule.

    EPA also disagrees with the commenters' assertion that the absence of any statutory language in section 518 addressing the limitations on tribal criminal authority is an indication that Congress did not intend to delegate authority to Indian tribes. EPA notes that the limitations on tribal criminal enforcement originate in legal principles established separate and apart from the CWA. Therefore, if the commenters were correct, Indian tribes could never demonstrate authority—whether inherent or congressionally delegated—to administer a CWA program that includes a criminal enforcement component without some statement in the statute affirming or otherwise addressing the exercise of criminal authority. Because the statute contains no such statement, this would render TAS impossible even under EPA's prior interpretation, and would thus make the CWA TAS provision internally inconsistent and in significant part a nullity. Under the commenters' approach, section 518 would, on the one hand, authorize TAS for programs that include criminal enforcement, while simultaneously precluding such TAS by virtue of an absence of congressional explanation of how criminal enforcement will be exercised. EPA disagrees that this could reflect Congress' intent. EPA also notes that the Agency has already interpreted the CAA tribal provision as including a congressional delegation of civil regulatory authority to tribes over their entire reservations, and that interpretation has been upheld in court. Like the CWA, the CAA authorizes TAS for programs that include a criminal enforcement component without separately addressing the exercise of such authority during program implementation. Under both statutes, EPA has exercised its authority to address this programmatic issue through long-established regulations that retain primary criminal enforcement with the federal government.

    4. Special Circumstances

    There could be rare instances where special circumstances limit or preclude a particular tribe's ability to accept or effectuate the congressional delegation of authority over its reservation. For example, there could be a separate federal statute establishing unique jurisdictional arrangements for a specific state or a specific reservation that could affect a tribe's ability to exercise authority under the CWA. It is also possible that provisions in particular treaties or tribal constitutions could limit a tribe's ability to exercise relevant authority.12

    12 EPA takes no position in this interpretive rule regarding whether any particular tribe or Indian reservation is subject to any potential impediment relating to effectuation of the congressional delegation of regulatory authority or how the CWA can be interpreted vis-à-vis the alleged source of any such impediment. Any such issue would need to be addressed on a case-by-case basis and with the benefit of a full record of relevant information that would be developed during the processing of a particular TAS application. To the extent EPA is ever called upon to make a decision regarding this type of issue, such a decision would be rendered in the context of EPA's final action on a specific TAS application, and any judicial review of that decision would occur in that context.

    The application requirements of existing CWA TAS regulations already provide for tribes to submit a statement of their legal counsel (or equivalent official) describing the basis for their assertion of authority. The statement can include copies of documents such as tribal constitutions, by-laws, charters, executive orders, codes, ordinances, resolutions, etc. See 40 CFR 131.8(b)(3)(ii); 123.32(c); 233.61(c)(2). Under today's rule, the requirement for a legal counsel's statement continues to apply and ensures that applicant tribes appropriately rely on the congressional delegation of authority and provide any additional information that could be relevant to their ability to accept or effectuate the delegated authority. As described below in section V.C.6, existing CWA TAS and program regulations also continue to provide appropriate opportunities for other potentially interested entities—such as states or other Indian tribes adjacent to an applicant tribe—to comment on an applicant tribe's assertion of authority and, among other things, inform EPA of any special circumstances that they believe could affect a tribe's ability to regulate under the CWA.

    Consideration of Comments

    EPA received several comments asserting that special circumstances limit particular tribes' ability to obtain TAS to regulate under the CWA. For instance, one state asserted that the tribes located within the state are precluded under federal laws specific to those tribes from obtaining TAS for CWA regulatory programs. Another state asserted that a tribe located within the state is precluded by a federal statute specific to that tribe from regulating reservation land that is owned in fee by nonmembers of the tribe. The state noted that if that tribe applied to regulate such fee lands, the state would avail itself of the opportunity under EPA's regulations to submit comments and would assert that the cited federal law affects the tribe's ability to exercise such authority. One local government commented that the geographic extent of a tribe's governing authority does not include the local government and provided historical information intended to support its position. And two industry commenters asserted that the tribe upon whose reservation they are located has entered into binding agreements waiving the tribe's right to regulate the commenters' facilities, thus rendering the tribe unable to obtain TAS for CWA regulatory programs over those facilities.

    EPA appreciates the information about special circumstances provided in these comments. Importantly, the precise outcome of any such circumstance could only be determined in the context of a particular tribe's TAS application and upon a full record of information addressing the issue. The substance of these specific situations is thus outside the scope of—and is not affected by—today's rule. However, the comments are both illustrative and instructive regarding the types of special circumstances and jurisdictional issues that may affect a tribe's ability to carry out the congressional delegation of authority in the CWA tribal provision. Other federal statutes may, for instance, limit a particular tribe's or group of tribes' ability to participate, in whole or in part, in CWA regulation through the TAS process. In addition, before approving a tribe's TAS eligibility, EPA would carefully consider whether any binding contractual arrangements or other legal documents such as tribal charters or constitutions might affect the tribe's regulatory authority generally, or with regard to any specific members of the regulated community. Finally, the geographic scope of the reservation boundaries over which a tribe asserts authority would continue to be a relevant and appropriate issue for consideration in the TAS process. As explained elsewhere, EPA's existing TAS regulations require applicant tribes to address these types of issues in their jurisdictional statements and provide states and other appropriate entities the opportunity to comment and inform EPA of any potential impediments to tribal regulatory authority. These comment opportunities help ensure that EPA's decision making is well informed. Additional available information regarding certain of these special circumstances is provided in EPA's Response to Comments document included in the docket for this rule.

    During pre-proposal outreach and again following proposal of the rule, EPA received comments from the State of Oklahoma regarding section 10211(b) of the Safe, Accountable, Flexible, Efficient Transportation Equity Act of 2005 (“SAFETEA”), Public Law 109-59, 119 Stat. 1144 (August 10, 2005). Because this provision of federal law expressly addresses TAS under EPA's statutes, including the CWA, EPA explained in the proposal that section 10211(b) established a unique TAS requirement with respect to Indian tribes located in the State of Oklahoma. Under section 10211(b), tribes in Oklahoma seeking TAS under a statute administered by EPA for the purpose of administering an environmental regulatory program must, in addition to meeting applicable TAS requirements under the EPA statute, enter into a cooperative agreement with the state that is subject to EPA approval and that provides for the tribe and state to jointly plan and administer program requirements. This requirement of SAFETEA exists apart from, and in addition to, existing TAS criteria, including the TAS criteria set forth in section 518 of the CWA. Today's rule relates solely to the interpretation of an existing CWA TAS requirement; it thus has no effect on the separate TAS requirement of section 10211(b) of SAFETEA. In its comments on the proposal, the State of Oklahoma requested additional information regarding the process or sequence of events that will be used to ensure that this provision of SAFETEA is satisfied in the context of particular tribal TAS applications that may be submitted following finalization of today's interpretive rule. EPA notes that section 10211(b) expressly contains certain procedural requirements—i.e., the state/tribal cooperative agreement must be subject to EPA review and approval after notice and an opportunity for public hearing. Nothing in today's rule alters or affects those requirements. Further, because the SAFETEA requirement must be satisfied for a tribe in Oklahoma to obtain TAS to regulate under an EPA statute, the final cooperative agreement must be fully executed and approved by EPA before EPA can approve a regulatory TAS application. Because the State of Oklahoma is a required signatory to the agreement, this sequence of events ensures that the State will have a full opportunity to participate in the TAS process—separate and apart from opportunities that states have through EPA's existing TAS notice and comment procedures. Nothing in today's interpretive rule alters or affects Oklahoma's participation in the SAFETEA cooperative agreement or the requirement that the agreement be in place as a prerequisite to TAS for a regulatory program. EPA notes that there are no regulations establishing procedures for the State and applicant tribes to negotiate SAFETEA cooperative agreements or for tribes to submit, and EPA to review, such agreements. There is thus flexibility for the State and applicant tribes in Oklahoma to work together to develop these agreements as they deem appropriate.

    5. Tribal Inherent Regulatory Authority

    With today's rule, EPA is not intending to assess the extent of tribal inherent regulatory authority. As the Agency clearly articulated in the TAS rules identified in section II.B, the importance of water resources to tribes, the serious potential impacts of water pollution on tribes' uses of their waters, and the mobility of pollutants in water all strongly support tribes' ability to demonstrate their inherent authority to regulate surface water quality on their reservations, including the authority to regulate nonmember conduct on fee lands under the Supreme Court's test established in Montana. Consistent with its 1991 interpretation of section 518, EPA concluded that each of the tribes it has approved for TAS for CWA regulatory programs has demonstrated its inherent regulatory authority and has demonstrated that the functions it sought to exercise pertain to the management and protection of reservation water resources. All Agency CWA TAS determinations challenged in court have been upheld.

    Today's rule does not affect these prior TAS approvals. The rule does, however, modify EPA's approach going forward to be consistent with Congress' intent to delegate civil regulatory authority to eligible tribes. It relieves tribes of the administrative burden associated with demonstrating their inherent regulatory authority in the TAS application process. It does not, however, alter EPA's prior views regarding the extent of tribal inherent regulatory authority.13

    13 In promulgating the CAA Tribal Authority Rule, EPA similarly noted its view that even absent a direct delegation of authority from Congress, tribes would very likely have inherent authority over all activities within Indian reservation boundaries that are subject to CAA regulation. 59 FR at 43958 n.5.

    Consideration of Comments

    All of the tribal commenters fully support EPA's interpretive rule. Several tribes also noted their view that tribes possess inherent authority to regulate the quality of their reservation waters. EPA appreciates these comments and reiterates that today's revised interpretation of the CWA tribal provision is intended solely to effectuate the plain intent of Congress to delegate civil authority to tribes to regulate water resources on their entire reservations under the CWA. Today's rule is not intended as an assessment of the scope of retained tribal inherent authority.

    Several state, local government, and industry commenters asserted that under federal law, tribal inherent regulatory authority over nonmembers of the tribe is limited and that the U.S. Supreme Court has consistently recognized and affirmed such limitations. The commenters appear to assert that such limitations argue against EPA's revised interpretation of the CWA tribal provision. EPA disagrees. EPA is aware of Supreme Court jurisprudence addressing retained tribal inherent regulatory authority, particularly with regard to such authority as applied to non-tribal members. However, as described above in sections IV and V.A, federal law also recognizes Congress' authority to delegate jurisdiction to tribes to regulate throughout their reservations, including regulation of the activities of non-tribal members. A relevant reviewing federal court has already upheld EPA's interpretation that the Clean Air Act includes such a delegation, and the plain language of CWA section 518 supports the same approach. Issues regarding tribal inherent authority are distinct from EPA's interpretation of the express statutory language in section 518.

    6. Existing Regulatory Requirements

    Because today's revised statutory interpretation is consistent with existing CWA TAS regulatory requirements, EPA has not revised any regulatory text in the Code of Federal Regulations.

    a. TAS Requirements

    Consistent with today's rule, tribes will rely on the congressional delegation of authority in section 518 as the source of their authority to regulate water quality on their reservations. Under the TAS regulations identified in section II.B, tribes would still need to address and overcome any special circumstances that might affect their ability to obtain TAS for a CWA regulatory program (see section V.C.4), and the existing TAS application regulations require submission of a legal statement that would cover such issues. Apart from such special circumstances, the main focus in determining the extent of an applicant tribe's jurisdiction for CWA regulatory purposes will likely be identifying the geographic boundaries of the Indian reservation area (whether a formal or informal reservation) over which the congressionally delegated authority would apply.14 EPA's existing CWA TAS regulations already provide for applicant tribes to submit a map or legal description of the reservation area that is the subject of the TAS application. See 40 CFR 131.8(b)(3)(i); 123.32(c); 233.61(c)(1); 501.23(c). These provisions continue to apply and ensure that each tribe applying for a CWA regulatory program submits information adequate to demonstrate the location and boundaries of the subject reservation.

    14 The jurisdictional inquiry into the geographic scope of a tribe's TAS application—i.e., the boundary of the reservation area that a tribe seeks to regulate—imposes no additional burden on entities that wish to comment on an applicant tribe's assertion of authority. Under any approach to tribal regulatory authority, the geographic scope of the TAS application is a relevant jurisdictional consideration and thus an appropriate issue for potential comment during the TAS process. Commenters have, at times, raised such geographic issues in the context of previous TAS applications; EPA's rule does not alter the opportunity to do so for future applications, or any burden attendant to preparing and submitting such comments.

    The existing regulations also provide appropriate opportunities for potentially interested entities to comment to EPA regarding any jurisdictional issues associated with a tribe's TAS application. As mentioned in section II.B above, EPA's TAS regulations for the CWA section 303(c) WQS program include a process for notice to appropriate governmental entities—states, tribes and other federal entities located contiguous to the reservation of the applicant tribe—and provide an opportunity for such entities to provide comment on the applicant tribe's assertion of authority. EPA makes such notice broad enough that other potentially interested entities can participate in the process. 56 FR at 64884. For example, EPA routinely publishes notice of tribal TAS applications for the WQS program in relevant local newspapers covering the area of the subject reservation and in electronic media.

    Consideration of Comments

    EPA received comments from local governments requesting that EPA ensure direct notice to such governments of tribal TAS applications for the CWA WQS program. EPA appreciates that certain local governments may wish to comment on tribal assertions of authority to administer CWA WQS. However, any issues regarding the notice and comment process in EPA's TAS regulations for that program are beyond the scope of this interpretive rule, which addresses solely EPA's interpretation of section 518 as a congressional delegation of authority. EPA has retained the regulations governing the notice and comment process in their entirety and believes that the process provides appropriate notice to potentially interested entities in the area of an applicant Indian tribe's reservation. The process has proven to be effective in ensuring that relevant issues regarding tribal jurisdiction are raised to EPA during the TAS decision making process.

    b. Relationship to Program Approvals

    The existing TAS regulations and this rule relate solely to the applications of Indian tribes for TAS eligibility for the purpose of administering CWA regulatory programs. They do not provide substantive approval of an authorized tribe's actual CWA regulatory program. Each program has its own regulations specifying how states and authorized tribes are to apply for and administer the program.

    EPA's TAS regulations for the CWA section 402, 404 and 405 permitting programs require an analysis of tribal jurisdiction as part of the program approval process under 40 CFR parts 123, 233 and 501 that are described in section II.B. As described in the Simplification Rule, EPA makes its decisions to approve or disapprove those programs as part of a public notice and comment process conducted in the Federal Register. 59 FR at 64340.

    7. Effects on Tribal TAS Applications

    Today's interpretive rule streamlines the TAS application and review process for tribes seeking eligibility to administer CWA regulatory programs. The rule significantly reduces the expected time and effort for tribes to develop and EPA to review TAS applications and could encourage more tribes to apply for TAS for CWA regulatory programs. As stated above (sections V.C.4 and V.C.6), applicant tribes would still need to identify their reservation boundaries and address any special circumstances potentially affecting their ability to effectuate the congressional delegation of authority and obtain TAS to regulate under the CWA.

    Any EPA approval of a TAS application for a CWA regulatory program after May 16, 2016 will be based on the delegation of authority from Congress as the relevant source of authority supporting the tribe's eligibility. Any new tribal TAS application for a CWA regulatory program submitted after May 16, 2016 will need to be consistent with the interpretation of section 518 expressed in this rule. For any pending TAS application for CWA regulatory programs as of May 16, 2016, EPA will consult with the applicant tribe to assist it in amending its application if necessary to be consistent with this rule and to address any process issues.

    8. Effects on EPA-Approved State Programs

    EPA's rule has no effect on the scope of existing state regulatory programs approved by EPA under the CWA. Generally speaking, civil regulatory jurisdiction in Indian country lies with the federal government and the relevant Indian tribe, not with the states. See, e.g., Alaska v. Native Village of Venetie Tribal Gov't, 522 U.S. 520, 527 n.1 (1998). Therefore, in the absence of an express demonstration of authority by a state for such areas, and an EPA finding of that state authority for those Indian country waters, EPA has generally excluded Indian country from its approvals of state regulatory programs under the CWA.

    The revised reinterpretation of section 518 relates solely to the exercise of jurisdiction by Indian tribes on their reservations; it has no effect on the scope of existing CWA regulatory programs administered by states outside of Indian country. It neither diminishes nor enlarges the scope of such approved state programs.

    There are uncommon situations where a federal statute other than the CWA grants a state jurisdiction to regulate in areas of Indian country. For example, in a few cases EPA has approved states to operate CWA regulatory programs in areas of Indian country where the states demonstrated jurisdiction based on such a separate federal statute. This rule does not address or affect such jurisdiction that other federal statutes provide to states.

    Regulations already exist to address circumstances where a state or tribe believes that unreasonable consequences could arise or have arisen as a result of differing WQS set by states and eligible Indian tribes on common bodies of water. Section 518(e) of the CWA required EPA to provide a mechanism to address such situations. The Agency did so at 40 CFR 131.7, which establishes a detailed dispute resolution mechanism. Today's rule does not affect that process; the process remains available as needed to address potential state/tribal issues.

    Consideration of Comments

    EPA received comments from several states, a local government, and a local government association regarding potential effects of the rule on state water quality programs. Some comments asserted that the rule would improperly displace existing state authority to protect water quality in certain Indian reservation areas—e.g., lands owned in fee by nonmembers of a tribe, or submerged lands owned by the states. Related comments argued that the rule is unnecessary because the states are already implementing clean water programs over such areas. One state commenter also questioned whether the rule would preempt states' ability to apply state water quality laws, particularly with respect to non-tribal members on non-tribal land. Another state commenter cited separate federal statutes that grant the state environmental regulatory authority, including authority to administer CWA programs, in Indian territories, and asserted that the rule would therefore be unlawful in that state to the extent it could alter the jurisdictional arrangement of those other federal laws.

    EPA appreciates these comments and wishes to further clarify the Agency's view that the revised interpretation announced today would not affect existing EPA-approved state programs or other state authorities. Importantly, it is EPA's position that the congressional delegation of jurisdiction in CWA section 518 relates solely to the authority of tribes to administer regulatory programs under the CWA. It does not address or affect (by enlarging or diminishing) the authority of any entity—tribe or state—to apply any water quality or other program established under its laws outside the scope of the federal CWA. Any question regarding whether a state has sufficient authority to apply such state laws to non-tribal members on their reservation fee lands (or to otherwise apply such laws on an Indian reservation), is outside the scope of today's rule and would be unaffected by the rule. EPA does not, for instance, view Congress' decision to delegate to tribes the authority to regulate their reservations under the CWA as increasing or altering tribal authority to implement any other tribal law or program—including non-CWA tribal water quality laws. Nor does EPA take the position that the congressional delegation of CWA jurisdiction to tribes serves to preempt application of any state law on an Indian reservation to the extent such state law is premised on authority found outside the CWA. EPA notes that the Agency has similarly taken no position that the congressional delegation of authority in the CAA tribal provision acts as a preemption of state authority to apply state air quality laws on Indian reservations to the extent such laws are outside the purview of the federal CAA. Issues regarding a state's authority to implement environmental quality programs on reservation fee (or other) lands where such programs are outside the scope of the federal statutes EPA administers are beyond the scope of EPA's oversight and are unaffected by today's rule.

    With regard to state water quality programs approved by EPA under the CWA, EPA disagrees with the commenters' assertion that today's rule could affect or displace existing state authorities. As noted above, under principles of federal law, states generally lack authority to regulate on Indian reservations. EPA has thus generally excluded such lands from the Agency's approval of state programs submitted to EPA under the CWA (and other environmental laws administered by EPA). It is thus generally the case that states are not approved by EPA in the first instance to administer CWA regulatory programs on reservations. In most cases, therefore, there are no existing EPA-approved state CWA programs on reservations that could be affected or displaced by a congressional delegation of authority to Indian tribes.

    States may apply to EPA for CWA program approval over reservation areas. In such cases, the state would need to demonstrate a source of regulatory authority premised in federal law. Such a demonstration would be needed irrespective of whether the reservation land at issue is owned by non-tribal members or by the state itself. In rare circumstances, EPA has in the past approved certain state CWA regulatory programs on Indian reservations. In each case, the relevant state's authority has been based on a separate federal statute expressly granting the state jurisdiction to regulate on the reservation. Today's rule does not affect such EPA-approved state programs or otherwise alter the apportionment of jurisdiction established in those other federal laws. Although each case must be assessed in light of its own statutory arrangement, EPA generally believes that CWA section 518 would not affect a separate statutory scheme that is specifically applicable to a particular state or tribe and that expressly provides for state environmental regulatory jurisdiction on Indian reservation lands and/or expressly precludes tribes from asserting such authority. This does not mean, as asserted by one state commenter, that today's rule would be unlawful in such a state. It simply means that the congressional delegation of authority in section 518 may be precluded by a separate federal law, with jurisdiction to administer CWA regulatory programs being granted to the state under that law. As described above in section V.C.4, EPA recognizes that such unusual circumstances may affect certain tribes' ability to effectuate the congressional delegation of authority or otherwise obtain TAS to regulate under the CWA. A situation where a separate federal law specifically apportions jurisdiction among a particular state and the tribe(s) located in such state could be one example of such a circumstance.

    VI. How does the rule affect existing EPA guidance to tribes seeking to administer CWA regulatory programs?

    As noted in section V.C.6, today's rule does not revise any regulatory text. However, it does render some of EPA's existing guidance obsolete. For example, parts of a 1998 memorandum to EPA staff (the “Cannon-Perciasepe Memorandum”) 15 provided guidance for EPA's reviews of tribal assertions of inherent authority to administer CWA regulatory programs. Among other things, the memorandum established a case-by-case process for EPA to seek comments from appropriate governmental entities and the public on EPA's proposed factual findings relating to an applicant tribe's assertion of inherent authority over nonmember activities on reservation fee lands. Cannon-Perciasepe Memorandum, p. 6. The memorandum also provided detailed guidance for implementing the Montana test, which, as described above, relates to inherent tribal jurisdiction over nonmember activity. Cannon-Perciasepe Memorandum, Attachment C.16 Because applicant tribes will no longer need to demonstrate inherent jurisdiction, these parts of the guidance are no longer relevant for TAS applications for CWA regulatory programs, and there is no further utility for EPA to develop or seek comment on factual findings relating to tribal inherent authority.

    15 “Adoption of the Recommendations from the EPA Workgroup on Tribal Eligibility Determinations,” memorandum from Assistant Administrator for Water Robert Perciasepe and General Counsel Jonathan Z. Cannon to EPA Assistant Administrators and Regional Administrators, March 19, 1998.

    16 The “Cannon-Perciasepe” approach and related guidance to tribes are also reflected in subsequent EPA materials, including portions of the “Strategy for Reviewing tribal Eligibility Applications to Administer EPA Regulatory Programs,” memorandum from Deputy Administrator Marcus Peacock, January 23, 2008.

    EPA intends to update its internal procedures and its training and guidance for applicant tribes to reflect these changes consistent with the express congressional delegation of authority to eligible tribes.

    VII. Economic Analysis

    This rule entails no significant cost. Its only effect will be to reduce the administrative burden for a tribe applying in the future to administer a CWA regulatory program, and to potentially increase the pace at which tribes seek such programs. See the discussion of administrative burden and cost in section VIII.B (Paperwork Reduction Act).

    VIII. Statutory and Executive Order Reviews

    Additional information about these statutes and Executive Orders can be found at http://www.epa.gov/laws-regulations/laws-and-executive-orders.

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

    This interpretive rule is not a significant regulatory action and was therefore not submitted to the Office of Management and Budget (OMB) for review.

    B. Paperwork Reduction Act (PRA)

    The information collection activities in this interpretive rule have been submitted for approval to OMB under the PRA. The Information Collection Request (ICR) document that EPA prepared has been assigned EPA ICR number 2515.02. You can find a copy of the ICR in the docket for this rule, and it is briefly summarized here. The information collection requirements are not enforceable until OMB approves them.

    As discussed in section II.B, EPA's regulations require that a tribe seeking to administer a CWA regulatory program must submit information to EPA demonstrating that the tribe meets the statutory criteria described in section II.A. EPA requires this information in order to determine that the tribe is eligible to administer the program.

    This rule streamlines the application by revising EPA's interpretation of section 518 to eliminate the need for an applicant tribe to demonstrate its inherent regulatory authority—including demonstrating that it meets the Montana test where relevant—which had been an element of TAS applications not included in the statute. As described in the ICR, this rule reduces the burden by an estimated 583 staff hours for a typical tribe, or 27 percent, and reduces the cost of an application to a typical tribe for salaries and contractor support by an estimated $70,554 per tribe, or 39 percent.

    Respondents/affected entities: Any federally recognized tribe with a reservation can potentially apply to administer a regulatory program under the CWA.

    Respondent's obligation to respond: The information discussed in this rule is required from a tribe only if the tribe seeks to administer a CWA regulatory program. See EPA's regulations cited in section II.B of this rule.

    Estimated number of respondents: The total potential pool of respondents is over 300 tribes with reservations. Although there are 567 federally recognized Indian tribes in the United States, the CWA allows only those tribes with reservations to apply for authority to administer programs. EPA estimates that about six tribes per year will apply for TAS for a CWA regulatory program following this rule, an increase from the existing rate of about four tribes per year. The pace of applications could increase after the first few years as tribes become more familiar with the post-rule process.

    Frequency of response: Application by a tribe to be eligible to administer a CWA regulatory program is a one-time collection of information.

    Total estimated burden: 9,642 tribal staff hours per year. Burden is defined at 5 CFR 1320.3(b). EPA's ICR analysis included all administrative costs associated with TAS applications even if some of the costs are not strictly information collection costs. EPA was unable to differentiate the information collection costs consistently and reliably from other administrative costs such as program development costs.

    This estimate could overstate actual burden because (a) EPA assumed that all applications are first-time applications for CWA regulatory programs, and thus the tribes submitting them would be unable to rely on materials from previous applications for different regulatory programs; (b) EPA used a liberal estimate of the annual rate of tribal applications to ensure that the ICR does not underestimate tribal burden; and (c) EPA used a simplifying steady-state assumption in estimating annualized costs.

    Total estimated cost: $674,946, including tribal staff salaries and the cost of contractors supporting tribal applicants. This rule does not entail capital or operation and maintenance costs.

    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. The OMB control numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9. When OMB approves this ICR, the Agency will announce that approval in the Federal Register and publish a technical amendment to 40 CFR part 9 to display the OMB control number for the approved information collection activities contained in this final rule.

    C. Regulatory Flexibility Act (RFA)

    I certify that this interpretive rule will not have a significant economic impact on a substantial number of small entities under the RFA. This rule will not impose any requirements on small entities. This rule affects only Indian tribes that seek to administer CWA regulatory programs.

    D. Unfunded Mandates Reform Act (UMRA)

    This interpretive rule does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. The rule imposes no enforceable duty on any state, local or tribal governments or the private sector.

    E. Executive Order 13132: Federalism

    This interpretive rule does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.

    This rule applies only to tribal governments that seek eligibility to administer CWA regulatory programs. Although it could be of interest to some state governments, it does not apply directly to any state government or to any other entity. As discussed in section V.C.8, the rule has no effect on the scope of existing state regulatory programs approved by EPA under the CWA.

    In the spirit of Executive Order 13132, and consistent with EPA policy to promote communications between EPA and state and local governments, EPA consulted with representatives of state governments to obtain meaningful and timely input before and after proposal for consideration in this rulemaking. By letter dated June 18, 2014, EPA invited ten national and regional state associations 17 to a July 8, 2014, informational meeting at EPA in Washington, DC. As a result of this meeting and other outreach, EPA participated in several follow-up meetings with interested associations and their members as well as certain individual states during the months of June-September, 2014. By letter dated August 7, 2015, to the same groups, EPA resumed consultation after the proposal, including conducting a webinar on September 3, 2015. Records of these meetings and copies of written comments and questions submitted by states and state associations are included in the docket for this rule.

    17 The National Governors Association, the National Conference of State Legislatures, the Council of State Governments, the Western Governors Association, the Southern Governors Association, the Midwestern Governors Association, the Coalition of Northeastern Governors, the Environmental Council of the States, the Association of Clean Water Administrators, and the Western States Water Council. In May and June 2015, EPA held additional informational meetings with the state environmental chiefs of the National Association of Attorneys General, members of the legal network of the Environmental Council of the States, and member states of the Western Governors' Association.

    In the public comments, two states expressed support for tribal opportunities to obtain TAS. Some participants disagreed with or questioned in whole or in part the Agency's rationale for the reinterpretation. Others questioned whether the proposal would affect the geographic scope of tribal authority under the CWA and how the proposal would affect a state's ability to challenge a tribe's application. Some states also had questions about issues unique to their situations.

    EPA considered all of the state comments in developing this final interpretive rule. EPA's responses are included in sections IV and V of this rule and in the Response to Comments document in the docket for this rulemaking.

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

    This interpretive rule has tribal implications because it will directly affect tribes applying in the future to administer CWA regulatory programs. However, because it neither imposes substantial direct compliance costs on federally recognized tribal governments, nor preempts tribal law, tribal consultation was not required by Executive Order 13175. In any event, EPA consulted and coordinated with tribal officials under the EPA Policy on Consultation and Coordination with Indian Tribes early in the process of developing this rule, and again after its proposal, to permit them to have meaningful and timely input into its development. A summary of that consultation and coordination follows.

    EPA initiated a tribal consultation and coordination process before proposing this rule by sending a “Notification of Consultation and Coordination” letter on April 18, 2014, to all of the 566 then federally recognized tribes. EPA contacted all federally recognized tribes, even though only tribes with reservations can apply for TAS under the CWA, because it is possible that additional tribes could acquire reservation lands in the future. The letter invited tribal leaders and designated consultation representatives to participate in the tribal consultation and coordination process. EPA held two identical webinars concerning this matter for tribal representatives on May 22 and May 28, 2014. A total of 70 tribal representatives participated in the two webinars, and tribes and tribal organizations sent 20 pre-proposal comment letters to EPA. On August 7, 2015, EPA resumed the consultation and coordination process with tribes. A total of 44 tribal representatives participated in webinars in September 2015.

    EPA received 21 comment letters from tribes and tribal associations during the public comment period. All tribal comments supported the proposal. Some tribes had questions about how EPA would handle reservation land status and boundary matters. Some comments urged EPA to help find solutions to tribal funding limitations. EPA will continue to consider tribal resource issues in its budgeting and planning process. However, EPA cannot assure tribes that additional funding will be available for a tribe to develop or implement a CWA regulatory program.

    EPA considered all of the tribal comments in developing this interpretive rule. EPA's responses are included in sections IV and V of this rule and in the Response to Comments document in the docket for this rulemaking,

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

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

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

    This interpretive rule is not subject to Executive Order 13211 because it is not a significant regulatory action under Executive Order 12866.

    I. National Technology Transfer and Advancement Act (NTTAA)

    This rulemaking does not involve technical standards.

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

    The human health or environmental risks addressed by this action will not have potential disproportionately high and adverse human health or environmental effects on minority, low-income, or indigenous populations. This rule affects the procedures tribes must follow to seek TAS for CWA regulatory purposes and does not directly affect the level of environmental protection.

    K. Congressional Review Act (CRA)

    This interpretive rule is exempt from the CRA because it is a rule of agency organization, procedure or practice that does not substantially affect the rights or obligations of non-agency parties.

    Dated: May 5, 2016. Gina McCarthy, Administrator.
    [FR Doc. 2016-11511 Filed 5-13-16; 8:45 am] BILLING CODE 6560-50-P
    FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 90 [PS Docket No. 13-209, RM-11663; FCC 16-48] Emission Mask Requirements for Digital Technologies on 800 MHz NPSPAC Channels; Analog FM Capability on Mutual Aid and Interoperability Channels AGENCY:

    Federal Communications Commission.

    ACTION:

    Final rule.

    SUMMARY:

    This document amends the Commission's rules to guard against interference to critical public safety communications in the 800 MHz National Public Safety Planning Advisory Committee (NPSPAC) band (806-809/851-854 MHz) and to enhance public safety system interoperability in the VHF, UHF and 800 MHz bands by specifying analog FM as the standard emission for use on all interoperability channels in these bands.

    DATES:

    Effective June 15, 2016.

    FOR FURTHER INFORMATION CONTACT:

    John A. Evanoff, Attorney-Advisor, Policy and Licensing Division, Public Safety and Homeland Security Bureau, (202) 418-0848 or [email protected] and Brian Marenco, Electronics Engineer, Policy and Licensing Division, Public Safety and Homeland Security Bureau, (202) 418-0838 or [email protected]

    SUPPLEMENTARY INFORMATION:

    This is a summary of the Commission's Report and Order in PS Docket No. 13-209, FCC 16-48, released on April 25, 2016. The document is available for download at http://fjallfoss.fcc.gov/edocs_public/. The complete text of this document is also available for inspection and copying during normal business hours in the FCC Reference Information Center, Portals II, 445 12th Street SW., Room CY-A257, Washington, DC 20554. To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an email to [email protected] or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (TTY).

    The Report and Order amends the rules to require digital technologies to comply with Emission Mask H when operated in the 800 MHz National Public Safety Planning Advisory Committee (NPSPAC) band (806-809/851-854 MHz). The Report and Order also amends the rules to require equipment to have analog FM capability when operating on 800 MHz NPSPAC, VHF (150-170 MHz), and UHF (450-470 MHz) public safety mutual aid and interoperability channels. These rule changes will help safeguard public safety licensees in the NPSPAC band from adjacent-channel interference and preserve interoperability in the NPSPAC, VHF and UHF bands. Finally, the Report and Order terminates the existing freeze on equipment authorization announced in the Public Notice, 28 FCC Rcd 12661.

    Procedural Matters A. Final Regulatory Flexibility Analysis

    The Final Regulatory Flexibility Analysis required by section 604 of the Regulatory Flexibility Act, 5 U.S.C. 604, is included in Appendix B of the Report and Order.

    B. Paperwork Reduction Act of 1995 Analysis

    The actions taken in the Report and Order in PS Docket No. 13-209 have been analyzed with respect to the Paperwork Reduction Act of 1995, Public Law 104-13, and found to impose no new or modified recordkeeping requirements or burdens on the public.

    C. Congressional Review Act

    The Commission will send a copy of this Report and Order to Congress and the Government Accountability Office pursuant to the Congressional Review Act (“CRA”), see 5 U.S.C. 801(a)(1)(A).

    Final Regulatory Flexibility Analysis

    1. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was incorporated in the Notice of Proposed Rulemaking (NPRM). The Commission sought written public comment on the proposals in the NPRM, including comment on the IRFA. The comments received are discussed below. This present Final Regulatory Flexibility Analysis (FRFA) conforms to the RFA.

    A. Need for, and Objectives of, the Proposed Rules

    2. The basic purpose of the Report and Order is to amend the Part 90 technical rules in order to prevent adjacent channel interference and promote interoperable public safety communications. In the Notice of Proposed Rulemaking (NPRM) we proposed to adopt rules that guard against interference to critical public safety communications in the 800 MHz NPSPAC band and enhance public safety system interoperability in the VHF, UHF and 800 MHz bands. Most commenters submit that digital equipment should not be authorized in the NPSPAC band unless it complies with Emission Mask H because digital transmitters increase the potential for adjacent channel interference and reduce frequency reuse in the limited NPSPAC spectrum. Most commenters also believe that public safety radios should have analog FM capability when operating on the mutual aid and interoperability channels.

    3. Based on the record, we conclude that the public interest will best be served by adopting the rules proposed in the NPRM, with certain changes that will reduce regulatory burdens on public safety entities and manufacturers. The rule changes adopted in this Report and Order provide certainty to public safety entities, regional planning committees (RPC), equipment manufacturers, and equipment certification laboratories, and will ensure that licensed facilities operate under uniform technical parameters to maintain the extant interference environment in the NPSPAC band and promote interoperability.

    B. Summary of Significant Issues Raised by Public Comments in Response to the IRFA

    4. There were no comments raised that specifically addressed the proposed rules and policies presented in the IRFA. Nonetheless, we considered the potential impact of the rules proposed in the IRFA on small entities and reduced the compliance burden for all small entities in order to reduce the economic impact of the rules enacted herein on such entities.

    5. First, our decision to apply the H Mask to digital technology is limited to equipment that operates in the sensitive interference environment of the NPSPAC band where 25 kilohertz channels are spaced only 12.5 kilohertz apart. We recognize that the NPSPAC channels are more susceptible to adjacent channel interference due to the 12.5 kilohertz channel spacing relative to the rest of the 800 MHz band where channels are spaced 25 kilohertz apart. Equipment not conforming to the H Mask would increase the potential for adjacent channel interference, require greater geographic separation to mitigate interference and thus reduce spectrum reuse of limited public safety spectrum. Thus, by amending the emission mask rules applicable to the NPSPAC band, we reduce the economic burden on public safety licensees in having to contend with increased adjacent channel interference and decreased spectrum availability.

    6. Second, our decision to require analog FM common modulation capability promotes interoperability on the mutual aid channels and the VHF/UHF interoperability channels. In light of the embedded base of analog FM equipment on the mutual aid and VHF/UHF interoperability channels, we believe that requiring a common modulation scheme is a low-cost measure to ensure that these channels remain available during times of crisis.

    7. Third, the record shows that the benefits to public safety users of requiring (1) digital technologies to comply with Emission Mask H when operating in the NPSPAC band and (2) equipment to have analog FM capability when operating on 800 MHz, VHF, and UHF public safety mutual aid and interoperability channels exceed the asserted costs of (1) compliance with Emission Mask H, and (2) providing analog FM capability. Additionally, public safety agencies that wish to use non-H Mask compliant digital emissions for non-interoperable communications may apply for authorizations in the 4.5 MHz of 800 MHz interleaved spectrum.

    C. Estimate of the Number of Small Entities to Which the Proposed Rules Will Apply

    8. The RFA directs agencies to provide a description of, and, where feasible, an estimate of, the number of small entities that may be affected by the rules adopted herein. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act (SBA). A “small business concern” is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the Small Business Administration (SBA).

    9. Private Land Mobile Radio Licensees. PLMR systems serve an essential role in a range of industrial, business, land transportation, and public safety activities. These radios are used by companies of all sizes operating in all U.S. business categories, and are often used in support of the licensee's primary (non-telecommunications) business operations. For the purpose of determining whether a licensee of a PLMR system is a small business as defined by the SBA, we use the broad census category, Wireless Telecommunications Carriers (except Satellite).

    10. The Wireless Telecommunications Carriers (except satellite) industry comprises establishments engaged in operating and maintaining switching and transmission facilities to provide communications via the airwaves. Establishments in this industry have spectrum licenses and provide services using that spectrum, such as cellular phone services, paging services, wireless Internet access, and wireless video services. The appropriate size standard under SBA rules for the category Wireless Telecommunications Carriers (except satellite) is that a business is small if it has 1,500 or fewer employees. Census data for 2007 show that there were 1,383 such firms that operated for the entire year. Of this total, 1,368 firms had fewer than 1000 employees. Thus, under this category and the associated small business size standard, the Commission estimates that the majority of wireless telecommunications carriers (except satellite) are small.

    11. The definition of the Wireless Telecommunications Carriers (except satellite) industry provides that a small entity is any such entity employing no more than 1,500 persons. The Commission does not require PLMR licensees to disclose information about number of employees, so the Commission does not have information that could be used to determine how many PLMR licensees constitute small entities under this definition. We note that PLMR licensees generally use the licensed facilities in support of other business activities, and therefore, it would also be helpful to assess PLMR licensees under the standards applied to the particular industry subsector to which the licensee belongs.

    12. As of November 1, 2012, there were 1,185 PLMR licensees operating in the PLMR band between 806-809/851-854 MHz (NPSPAC band) and 686 PLMR licensees operating on the VHF and UHF public safety interoperability channels. We note that any entity engaged in a commercial activity is eligible to hold a PLMR license, and that any revised rules in this context could therefore potentially impact small entities covering a great variety of industries.

    13. Small Businesses, Small Organizations, and Small Governmental Jurisdictions. Our action may, over time, affect small entities that are not easily categorized at present. We therefore describe here, at the outset, three comprehensive, statutory small entity size standards that encompass entities that could be directly affected by the amended rules. As of 2009, small businesses represented 99.7% of the 28.2 million businesses in the United States, according to the SBA. Additionally, a “small organization” is generally “any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.” Nationwide, as of 2007, there were approximately 1,621,315 small organizations. Finally, the term “small governmental jurisdiction” is defined generally as “governments of cities, counties, towns, townships, villages, school districts, or special districts, with a population of less than fifty thousand.” Census Bureau data for 2007 indicate that there were 89,527 governmental jurisdictions in the United States. We estimate that, of this total, as many as 88,761 entities may qualify as “small governmental jurisdictions.” Thus, we estimate that most governmental jurisdictions are small.

    14. RF Equipment Manufacturers. The Census Bureau defines this category as follows: “This industry comprises establishments primarily engaged in manufacturing radio and television broadcast and wireless communications equipment. Examples of products made by these establishments are: Transmitting and receiving antennas, cable television equipment, GPS equipment, pagers, cellular phones, mobile communications equipment, and radio and television studio and broadcasting equipment.” The SBA small business size standard for Radio and Television Broadcasting and Wireless Communications Equipment Manufacturing is all such firms having 750 or fewer employees. According to Census Bureau data for 2007, there were a total of 939 establishments in this category that operated for the entire year. Of this total, 912 had employment of under 500, and an additional 10 had employment of 500 to 999. Thus, under this size standard, the majority of firms can be considered small.

    D. Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements

    15. The Report and Order adopts two principal rule changes that will affect reporting, recordkeeping and other compliance requirements. The Report and Order retains our 800 MHz NPSPAC emission mask rules and explicitly requires digital emission transmitters to comply with Emission Mask H when operated on 800 MHz NPSPAC channels. The Report and Order also requires mobile and portable transmitters to have analog FM modulation capability on the public safety mutual aid and VHF/UHF interoperability frequencies. Digital emission transmitters have characteristics that differ from analog FM transmitters and, hence, have a greater likelihood of causing adjacent-channel interference. The Commission developed specific emission masks for digital emissions, including Mask H for digital emissions in the 800 MHz NPSPAC band. Industry practice recognizes that (1) digitally-modulated signals must be certified under the H-Mask for use in public safety spectrum and (2) radios intended for use on mutual aid and interoperability channels must be capable of analog FM operation. We expect that large and small manufacturers already comply with these proposed regulations. However, to the extent some manufacturers do not already comply with these regulations and industry standards, we expect that such manufacturers would refrain from marketing their equipment to public safety entities as being in compliance with the Commission's rules and ensure that their equipment performs consistent with these regulations designed to prevent interference and preserve interoperability. The Commission's equipment certification process will serve to ensure that equipment complies with Emission Mask H when operated in the NPSPAC band and that it has FM modulation capability on public safety mutual aid and VHF/UHF interoperability frequencies. Some manufacturers may submit new or amended applications for equipment certification accompanied by the requisite engineering showings that demonstrate compliance with the rules adopted in the Report and Order. See OMB Control No. 3060-0057.

    E. Steps Taken To Minimize Significant Economic Impact on Small Entities, and Significant Alternatives Considered

    16. The RFA requires an agency to describe any significant alternatives that it has considered in developing its approach, which may include the following four alternatives (among others): “(1) the establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance and reporting requirements under the rule for such small entities; (3) the use of performance rather than design standards; and (4) an exemption from coverage of the rule, or any part thereof, for such small entities.”

    17. We have evaluated our rule changes in the context of small business entities and find no alternatives, to the benefit of small entities that would achieve our goals of adjacent channel interference avoidance and facilitating nationwide interoperability. Additionally, the rules we adopt are consistent with industry practice and reflect the embedded base of public safety equipment on these channels. Accordingly, we expect most manufacturers and public safety licensees already comply with our regulations, therefore minimizing any significant economic impact on small entities. We believe that these restrictions on adjacent channel interference and interoperability compliance requirements are the minimum needed, when weighed against the significant benefits to small entities, including public safety entities, that result from the approach we are adopting here. In order to further minimize the economic impact on small entities, the rules require analog FM capability only in subscriber units in order to achieve interoperability.

    F. Federal Rules That May Duplicate, Overlap, or Conflict With the Proposed Rules

    18. None.

    G. Report to Congress

    19. The Commission will send a copy of the Report and Order, including this FRFA, in a report to be sent to Congress pursuant to the Congressional Review Act. In addition, the Commission will send a copy of the Report and Order, including this FRFA, to the Chief Counsel for Advocacy of the SBA. A copy of the Report and Order and FRFA (or summaries thereof) is also being published in the Federal Register.

    Ordering Clauses

    20. Accordingly, it is ordered, pursuant to Sections 1, 2, 4(i), 4(j), 301, 302, 303, 308, 309(j), and 332 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 152, 154(i), 154(j), 301, 302, 303, 308, 309(j), and 332, that this Report and Order is hereby ADOPTED. Part 90 of the Commission's rules, 47 CFR part 90, is revised as set forth in Appendix A to this Report and Order. These rule revisions will take effect 30 days after the date of publication of the text thereof in the Federal Register.

    21. It is further ordered that the equipment authorization freeze announced in the Public Notice, 28 FCC Rcd 12661, shall be terminated on the date the rule revisions as set forth in Appendix A become effective.

    22. It is further ordered that the Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of this Report and Order, including the Final Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

    23. It is further ordered that the Commission shall send a copy of this Report and Order, to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

    List of Subjects in 47 CFR Part 90

    Radio.

    Federal Communications Commission. Gloria J. Miles, Federal Register Liaison Officer, Office of the Secretary.

    For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 90 as follows:

    PART 90—PRIVATE LAND MOBILE RADIO SERVICES 1. The authority citation for part 90 continues to read as follows: Authority:

    Sections 4(i), 11, 303(g), 303(r), and 332(c)(7) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 161, 303(g), 303(r), 332(c)(7).

    2. Section 90.20 is amended by revising paragraph (d)(80) to read as follows:
    § 90.20 Public Safety Pool.

    (d) * * *

    (80) After December 7, 2000 this frequency is available primarily for public safety interoperability only communications. Stations licensed prior to December 7, 2000 may continue to use this frequency on a co-primary basis until January 1, 2005. After January 1, 2005, all operations will be secondary to co-channel interoperability communications. Analog FM emission shall exclusively be used for operation on the VHF and UHF interoperability channels.

    3. Section 90.203 is amended by revising paragraphs (i) and (j)(1) to read as follows:
    § 90.203 Certification required.

    (i) Mobile/portable equipment capable of use in the 806-809/851-854 MHz band segment and submitted for certification thirty or more days after publication of a summary of the Report and Order, (FCC 16-48, released April 25, 2016) in PS Docket 13-209 in the Federal Register must have the capability to operate in the analog FM mode on the mutual aid channels designated in § 90.617(a)(1) of the rules.

    (j) * * *

    (1) Applications for certification of mobile and portable equipment designed to transmit voice on public safety frequencies in the 150-174 MHz or 450-470 MHz band will be granted only if the mobile/portable equipment is capable of operating in the analog FM mode on the nationwide public safety interoperability channels in the 150-174 MHz band or 450-470 MHz band, as appropriate. (See § 90.20(c), (d)(80) of this part.)

    4. Section 90.210 is amended by adding footnote 6 to the entry for 806-809/851-854 in the Applicable Emission Masks table to read as follows:
    § 90.210 Emission masks. Applicable Emission Masks Frequency band
  • (MHz)
  • Mask for
  • equipment with audio low pass
  • filter
  • Mask for
  • equipment without audio low pass
  • filter
  • *         *         *         *         *         *         * 806-809/851-854 6 B H *         *         *         *         *         *         *     *         *         *         *         *         *         *          6 Transmitters utilizing analog emissions that are equipped with an audio low-pass filter must meet Emission Mask B. All transmitters utilizing digital emissions and those transmitters using analog emissions without an audio low-pass filter must meet Emission Mask H.
    5. Section 90.617 is amended by revising paragraph (a)(1) to read as follows:
    § 90.617 Frequencies in the 809.750-824/854.750-869 MHz, and 896-901/935-940 MHz bands available for trunked, conventional or cellular system use in non-border areas.

    (a) * * *

    (1) Channels numbers 1-230 are also available to eligible applicants in the Public Safety Category in non-border areas. The assignment of these channels will be done in accordance with the policies defined in the Report and Order in Gen. Docket No. 87-112 (See § 90.16). The following channels are available only for mutual aid purposes as defined in Gen. Docket No. 87-112: Channels 1, 39, 77, 115, 153. Mobile and portable radios operating on the mutual aid channels shall employ analog FM emission.

    6. Section 90.619 is amended by revising paragraphs (a)(5)(i) and (c)(6)(i) to read as follows:
    § 90.619 Operations within the U.S./Mexico and U.S./Canada border areas.

    (a) * * *

    (5) * * *

    (i) Channel numbers 1-230 are also available to eligible applicants in the Public Safety Category in the Canada Border Regions. The assignment of these channels will be done in accordance with the policies defined in the Report and Order of Gen. Docket No. 87-112 (See § 90.16). The following channels are available only for mutual aid purposes as defined in Gen. Docket No. 87-112: Channels 1, 39, 77, 115, 153. Mobile and portable radios operating on the mutual aid channels shall employ analog FM emission.

    (c) * * *

    (6) * * *

    (i) Channel numbers 1-230 are also available to eligible applicants in the Public Safety Category in the Canada Border Regions. The assignment of these channels will be done in accordance with the policies defined in the Report and Order of Gen. Docket No. 87-112 (See § 90.16). The following channels are available only for mutual aid purposes as defined in Gen. Docket No. 87-112: Channels 1, 39, 77, 115, 153. Mobile and portable radios operating on the mutual aid channels shall employ analog FM emission.

    [FR Doc. 2016-11336 Filed 5-13-16; 8:45 am] BILLING CODE 6712-01-P
    DEPARTMENT OF TRANSPORTATION Pipeline and Hazardous Materials Safety Administration 49 CFR Parts 171, 173, and 178 [Docket No. PHMSA-2015-0271 (HM-261)] RIN 2137-AF15 Hazardous Materials: Incorporation by Reference Edition Update for the American Society of Mechanical Engineers Boiler and Pressure Vessel Code and Transportation Systems for Liquids and Slurries: Pressure Piping Code Correction

    In rule document 2016-10027 appearing on pages 25613-25618 in the issue of Friday, April 29, 2016, make the following correction:

    On page 25614, in the first column, in the “DATES:” section, beginning on the 14th line, “[insert date 60 days after publication in the Federal Register]” should read “June 28, 2016”.

    [FR Doc. C1-2016-10027 Filed 5-13-16; 8:45 am] BILLING CODE 1505-01-D
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 648 [Docket No. 151210999-6348-02] RIN 0648-XE620 Fisheries of the Northeastern United States; Atlantic Sea Scallop Fishery; 2016 Closure of the Northern Gulf of Maine Scallop Management Area AGENCY:

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

    ACTION:

    Temporary rule; closure.

    SUMMARY:

    NMFS announces that the Northern Gulf of Maine Scallop Management Area will close for the remainder of the 2016 fishing year. No vessel issued a federal scallop permit, with the exception of Northern Gulf of Maine permit holders also holding a Maine state scallop permit and fishing under the state waters exemption program in Maine state waters, may fish for, possess, or land scallops from the Northern Gulf of Maine Scallop Management Area. Regulations require this action once NMFS projects that 100 percent of the 2016 total allowable catch for the Northern Gulf of Maine Scallop Management Area will be harvested.

    DATES:

    Effective 0001 hr local time, May 13, 2016, through February 28, 2017.

    FOR FURTHER INFORMATION CONTACT:

    Shannah Jaburek, Fishery Management Specialist, (978) 282-8456.

    SUPPLEMENTARY INFORMATION:

    The reader can find regulations governing fishing activity in the Northern Gulf of Maine (NGOM) Scallop Management Area in 50 CFR 648.54 and § 648.62. These regulations authorize vessels issued a valid federal scallop permit to fish in the NGOM Scallop Management Area under specific conditions, including a total allowable catch (TAC) of 67,454 lb (30.6 mt) for the 2016 fishing year, and a State Waters Exemption Program for the state of Maine. NMFS reduced the 2016 NGOM Scallop Management Area TAC from 70,000 lb (31.8 mt) to 67,454 lb (30.6 mt) to account for a 2,546-lb (1,155-kg) over harvest of the 2015 TAC during the 2015 fishing year. Section 648.62(b)(2) requires the NGOM Scallop Management Area to be closed to federally permitted scallop vessels for the remainder of the fishing year once the NMFS Greater Atlantic Regional Administrator determines that the TAC for fishing year 2016 is projected to be harvested. Any vessel that holds a federal NGOM permit (category LAGC B) may continue to fish in the Maine state waters portion of the NGOM Scallop Management Area under the State Waters Exemption Program found in § 648.54 provided they have a valid Maine state scallop permit and fish in state waters only.

    Based on trip declarations by federally permitted scallop vessels fishing in the NGOM Scallop Management Area, and analysis of fishing effort, we project that the 2016 TAC will be harvested as of May 13, 2016. Therefore, in accordance with § 648.62(b)(2), the NGOM Scallop Management Area is closed to all federally permitted scallop vessels as of May 13, 2016. No vessel issued a federal scallop permit may fish for, possess, or land scallops in or from the NGOM Scallop Management Area after 0001 local time, May 13, 2016, unless the vessel is fishing exclusively in state waters and is participating in an approved state waters exemption program as specified in § 648.54. Any federally permitted scallop vessel that has declared into the NGOM Scallop Management Area, complied with all trip notification and observer requirements, and crossed the VMS demarcation line on the way to the area before 0001, May 13, 2016, may complete its trip. All limited access scallop vessels fishing on a day-at-sea must exit the NGOM Scallop Management Area before 0001 hr local time, May 13, 2016. This closure is in effect through February 28, 2017.

    Classification

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

    NMFS finds good cause pursuant to 5 U.S.C. 553(b)(B) to waive prior notice and the opportunity for public comment because it would be contrary to the public interest and impracticable. The NGOM Scallop Management Area opened for the 2016 fishing year on March 1, 2016. The regulations at § 648.60(b)(2) require this closure to ensure that federally permitted scallop vessels do not harvest more than the allocated TAC for the NGOM Scallop Management Area. The projections of the date on which the NGOM Scallop Management Area TAC will be harvested become apparent only as trips into the area occur on a real-time basis and as activity trends begin to appear. As a result, an accurate projection only can be made very close in time to when the TAC is harvested. In addition, proposing a closure would likely increase activity, triggering an earlier closure than predicted. To allow federally permitted scallop vessels to continue to take trips in the NGOM Scallop Management Area during the period necessary to publish and receive comments on a proposed rule would likely result in vessels over harvesting the 2016 TAC for the NGOM Scallop Management Area. Over harvest from the NGOM Scallop Management Area would result in excessive fishing effort in the area, where effort controls are critical, thereby undermining conservation objectives of the Atlantic Sea Scallop Fishery Management Plan and requiring more restrictive future management measures. Also, the public had prior notice and full opportunity to comment on this closure process when we put these provisions in place. NMFS further finds, pursuant to 5 U.S.C. 553(d)(3), good cause to waive the 30-day delayed effectiveness period for the reasons stated above.

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: May 11, 2016. Emily H. Menashes, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2016-11494 Filed 5-11-16; 4:15 pm] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 660 [Docket No. 160126053-6398-02] RIN 0648-BF74 Magnuson-Stevens Act Provisions; Fisheries Off West Coast States; Pacific Coast Groundfish Fishery; Annual Specifications and Management Measures for the 2016 Tribal and Non-Tribal Fisheries for Pacific Whiting AGENCY:

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

    ACTION:

    Final rule.

    SUMMARY:

    NMFS issues this final rule for the 2016 Pacific whiting fishery under the authority of the Pacific Coast Groundfish Fishery Management Plan (FMP), the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), and the Pacific Whiting Act of 2006. This final rule announces the 2016 U.S. Total Allowable Catch (TAC) of 367,553 metric tons of Pacific whiting, establishes the tribal allocation of 64,322 metric tons, establishes a set-aside for research and bycatch of 1,500 metric tons, and announces the allocations of Pacific whiting to the non-tribal fishery for 2016. This rule will ensure that the 2016 Pacific whiting fishery is managed in accordance with the goals and objectives of the Magnuson-Stevens Act, the FMP, the Pacific Whiting Act of 2006, and other applicable laws.

    DATES:

    Effective May 12, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Miako Ushio (West Coast Region, NMFS), phone: 206-526-4644, and email: [email protected]

    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/management/whiting/pacific_whiting.html and at the Pacific Fishery Management Council's Web site at http://www.pcouncil.org/.

    The final environmental impact statement (FEIS) regarding Harvest Specifications and Management Measures for 2015-2016 and Biennial Periods Thereafter is available on the NOAA Fisheries West Coast Region Web site at: www.westcoast.fisheries.noaa.gov/publications/nepa/groundfish/groundfish_nepa_documents.html and copies are available from Donald McIsaac, Executive Director, Pacific Fishery Management Council (Council), 7700 NE Ambassador Place, Portland, OR 97220, phone: 503-820-2280.

    Background

    This final rule announces the TAC for Pacific whiting, expressed in metric tons (mt). This is the fifth year that the TAC for Pacific whiting has been determined under the terms of the Agreement with Canada on Pacific Hake/Whiting (the Agreement) and the Pacific Whiting Act of 2006 (the Whiting Act), 16 U.S.C. 7001-7010. The Agreement and the Whiting Act establish bilateral bodies to implement the terms of the Agreement, each with various responsibilities, including: The Joint Management Committee (JMC), which is the decision-making body; the Joint Technical Committee (JTC), which conducts the stock assessment; the Scientific Review Group (SRG), which reviews the stock assessment; and the Advisory Panel (AP), which provides stakeholder input to the JMC (The Agreement, Art. II-IV; 16 U.S.C. 7001-7005). The Agreement establishes a default harvest policy (F-40 percent with a 40/10 adjustment) and allocates 73.88 percent of the TAC to the United States and 26.12 percent of the TAC to Canada. The JMC is primarily responsible for developing a TAC recommendation to the Parties (United States and Canada). The Secretary of Commerce, in consultation with the Secretary of State, has the authority to accept or reject this recommendation.

    Historic Catch

    Coastwide Pacific whiting landings averaged 224,376 mt from 1966 to 2015, with a low of 89,930 mt in 1980 and a peak of 363,135 mt in 2005. The coast-wide catch in 2015 was 190,663 mt of a 440,000 mt bilateral TAC. The U.S. harvested 47.4 percent and Canada 31.8 percent of their respective allocations. The overall catch of Pacific whiting in U.S. waters was much less than anticipated. Industry reported that this lower catch was due to several factors including unusual, dispersed distribution of the fish later in the season after the at-sea fleet returned from Alaska, possibly due to anomalously warm ocean conditions. Catches may also have been impacted by reduced global market demand resulting from, among other things, a strong U.S. dollar and other market conditions. The Catcher/Processor (C/P) Coop Program, Mothership Coop Program, and Shore-Based IFQ Program fleets caught 67.9 percent, 38.8 percent, and 46.6 percent of their total quotas, respectively. Tribal fisheries did not land any Pacific whiting in 2015.

    2016 Pacific Whiting Stock Assessment

    The JTC prepared the stock assessment document “Status of Pacific hake (whiting) stock in U.S. and Canadian waters in 2016,” which was completed on March 1, 2016, and presents a model that depends primarily upon an acoustic survey biomass index, catches, and age compositions for information on the scale of the current Pacific whiting stock. The most recent survey was conducted in 2015, and was a result of collaboration between Fisheries and Oceans Canada and NOAA Fisheries. The 2015 coast-wide survey biomass estimate was 2.156 million mt, which is estimated to be the highest on record for the survey. The amount of spawning biomass in 2016 is estimated to be 79 percent of historic average levels, well above the target 40 percent.

    As with past estimates, there is a considerable range of uncertainty around the most recent estimates because young cohorts that make up a large portion of the survey biomass have not been observed very long. However, age-composition data from both the aggregated fisheries (1975-2015) and the acoustic survey (1998-2015) indicate an exceptionally strong 2010 cohort (age-5 whiting in 2015) contributing to recent increases in the survey index. Coast-wide catches in recent years have largely depended on the 2010 cohort, accounting for 70 percent of the commercial catch in 2013, 67 percent in 2014, and 67 percent in 2015. Similarly, the 2015 survey age composition was nearly 60 percent age-5 fish from the 2010 cohort. Both survey and fishery data sources provided initial indications that the 2014 cohort (age-1 whiting in 2015) was above average. Current estimates suggest that the 2014 cohort is potentially similar in magnitude to the 2010 cohort, but because it has been observed only once (in 2015 data) the estimate is highly uncertain.

    The JTC provided tables showing catch alternatives for 2016. Using the default F-40 percent harvest rate identified in the Agreement (Paragraph 1 of Article III), the coastwide TAC for 2016 would be 804,399 mt. The stock assessment model predicts that the probability of the spawning stock biomass dropping below 40 percent under the default harvest rate catch scenario is 54 percent, and the probability of dropping below 10 percent of unfished biomass in 2016 is less than 1 percent. Spawning biomass in 2017 is likely to be less than in 2016 under any catch level, because the dominant 2010 cohort is projected to lose biomass due to natural mortality at a faster rate than it will increase in biomass due to growth.

    Scientific and Management Reviews

    The SRG met in Seattle, Washington, on February 23-25, 2016, to review the draft stock assessment document prepared by the JTC. The SRG noted that the 2015 acoustic-trawl survey was successfully completed, and that the 2015 survey biomass was 12 percent higher than the 2013 survey estimate, with approximately 21.4 percent of the estimated biomass in Canadian waters and 78.6 percent in U.S. waters and that as with past assessments, uncertainty in current stock status projections is likely underestimated. The SRG determined that substantive improvements had been made in the biomass estimate. In particular, a geostatistical approach, kriging, has been applied to develop index estimates since 2011, and important refinements were made this year that increased the SRG's confidence in the extrapolated biomass estimates. The SRG noted that according to the stock assessment, projected median catches of 830,124 mt in 2016 and 955,423 mt in 2017 could be achievable without overfishing.

    The AP met on March 16-18, 2016, and provided its 2016 TAC recommendation to the JMC on March 18, 2016. At its March 17-18, 2016, meeting, the JMC reviewed the advice of the JTC, the SRG, and the AP, and agreed on a TAC recommendation for transmittal to the Parties. Paragraph 1 of Article III of the Agreement directs the default harvest rate to be used unless scientific evidence demonstrates that a different rate is necessary to sustain the offshore whiting resource.

    After consideration of the 2016 stock assessment and other relevant scientific information, the JMC did not use the default harvest rate. Instead, a more conservative approach was agreed upon. There were two primary reasons for choosing a TAC well below the default level of F-40 percent: (1) A desire to minimize mortality of the potentially strong 2014 year class, which is anticipated to be important to the fishery over the next several years, but the scale of which is uncertain, and (2) to extend the harvest available from the 2010 year class. The JMC recommended an unadjusted TAC of 439,995 mt for 2016, which is approximately half of what the TAC would be by using the default harvest rate. This conservative approach was endorsed by the AP. Both the U.S. and Canada caught significantly less than their individual TACs in 2015. Therefore, 15 percent of each Party's individual unadjusted 2015 TACs is added to that Party's TAC for 2016 in accordance with Article II of the Agreement, resulting in a 2016 adjusted coastwide TAC of 497,500 mt.

    The recommendation for an unadjusted 2016 United States TAC of 325,068 mt, plus 42,485 mt carryover of uncaught quota from 2015 results in an adjusted United States TAC of 367,553 mt for 2016 (73.88 percent of the coastwide TAC). This recommendation is consistent with the best available science, provisions of the Agreement, and the Whiting Act. The recommendation was transmitted via letter to the Parties on March 18, 2016. NMFS, under delegation of authority from the Secretary of Commerce, approved the adjusted TAC recommendation of 367,553 mt for U.S. fisheries on April 21, 2016.

    Tribal Fishery Allocation and Reapportionment

    This final rule establishes the tribal allocation of Pacific whiting for 2016. NMFS issued a proposed rule regarding this allocation on March 10, 2016 (81 FR 12676). This action finalizes the tribal allocation. Since 1996, NMFS has been allocating a portion of the U.S. TAC of Pacific whiting to the tribal fishery using the process described in § 660.50(d)(1). According to § 660.55(b), the tribal allocation is subtracted from the total U.S. Pacific whiting TAC. The tribal Pacific whiting fishery is managed separately from the non-tribal Pacific whiting fishery, and is not governed by limited entry or open access regulations or allocations.

    The proposed rule described the tribal allocation as 17.5 percent of the U.S. TAC, and projected a range of potential tribal allocations for 2016 based on a range of U.S. TACs over the last 10 years (plus or minus 25 percent to capture variability in stock abundance). As described in the proposed rule, the resulting range of potential tribal allocations was 17,842 to 71,110 mt.

    As described earlier in this preamble, the U.S. TAC for 2016 is 367,553 mt. Applying the approach described in the proposed rule, NMFS is establishing the 2016 tribal allocation of 64,322 mt (17.5 percent of the U.S. TAC) at § 660.50(f)(4) by this final rule. While the total amount of Pacific whiting to which the Tribes are entitled under their treaty right has not yet been determined, and new scientific information or discussions with the relevant parties may impact that decision, the best available scientific information to date suggests that 64,322 mt is within the likely range of potential treaty right amounts.

    As with prior tribal Pacific whiting allocations, this final rule is not intended to establish precedent for future Pacific whiting seasons, or for the determination of the total amount of whiting to which the Tribes are entitled under their treaty right. Rather, this rule adopts an interim allocation, pending the determination of the total treaty amount. That amount will be based on further development of scientific information and additional coordination and discussion with and among the coastal tribes and State of Washington.

    Harvest Guidelines and Allocations

    This final rule establishes the fishery harvest guideline (HG) and allocates it among the three non-tribal sectors of the Pacific whiting fishery. The fishery harvest guideline, sometimes called the non-tribal allocation, was not included in the tribal whiting proposed rule published on March 10, 2016 (81 FR 12676), for two reasons related to timing and process. First, a recommendation on the coastwide TAC for Pacific whiting for 2016, under the terms of the Agreement with Canada, was not available until March 18, 2016. This recommendation for a U.S. TAC was approved by NMFS, under delegation of authority from the Secretary of Commerce, on April 21, 2016. Second, the fishery HG is established following deductions from the U.S. TAC for the tribal allocation, mortality in scientific research activities, and fishing mortality in non-groundfish fisheries. The Council establishes the amounts deducted from the U.S. TAC for scientific research and non-groundfish fisheries on an annual basis at its April meeting, based on estimates of scientific research catch and estimated bycatch mortality in non-groundfish fisheries. For 2016, the Council recommended and NMFS approves a scientific research and bycatch set-aside of 1,500 mt. These amounts are not set until the TAC is available. The fishery HG is therefore being finalized with this rule. The 2016 HG, sometimes referred to as the non-tribal allocation, for Pacific whiting is 301,731 mt. This amount was determined by deducting from the total U.S. TAC of 367,553 mt, the 64,322 mt tribal allocation, along with 1,500 mt for scientific research catch and fishing mortality in non-groundfish fisheries.

    Regulations at § 660.55(i)(2) allocate the fishery HG among the non-tribal C/P Coop Program, Mothership Coop Program, and Shorebased IFQ Program sectors of the Pacific whiting fishery. The C/P Coop Program is allocated 34 percent (102,589 mt for 2016), the Mothership Coop Program is allocated 24 percent (72,415 mt for 2016), and the Shorebased IFQ Program is allocated 42 percent (126,727 mt for 2016). The fishery south of 42° N. lat. may not take more than 6,336 mt (5 percent of the Shorebased IFQ Program allocation) prior to May 15, the start of the primary Pacific whiting season north of 42° N. lat.

    The 2016 allocations of canary rockfish, darkblotched rockfish, Pacific ocean perch and widow rockfish to the Pacific whiting fishery were published in a final rule on March 10, 2015 (80 FR 12567). The allocations to the Pacific whiting fishery for these species are described in the footnotes to Table 2.b to part 660, subpart C and are not changed via this rulemaking.

    Comments and Responses

    On March 10, 2016, NMFS issued a proposed rule for the allocation and management of the 2016 tribal Pacific whiting fishery. The comment period on the proposed rule closed on April 11, 2016. No comment letters were received.

    Classification

    The Annual Specifications and Management Measures for the 2016 Tribal and non-Tribal Fisheries for Pacific Whiting are issued under the authority of the Magnuson-Stevens Act, and the Pacific Whiting Act of 2006, and are in accordance with 50 CFR part 660, subparts C through G, the regulations implementing the FMP. NMFS has determined that this rule is consistent with the national standards of the Magnuson-Stevens Act and other applicable laws.

    NMFS has determined that the Pacific whiting fishery, both tribal and non-tribal, is consistent, to the maximum extent practicable, with approved coastal zone management programs for the States of Washington and Oregon. NMFS sent letters to the State of Washington and the State of Oregon describing its determination of consistency dated February 5, 2016. Both the State of Oregon and the State of Washington responded indicating agreement with the determination.

    Pursuant to 5 U.S.C. 553(b)(B), the NMFS Assistant Administrator finds good cause to waive prior public notice and comment and delay in effectiveness for those provisions in this final rule that were not included in 80 FR 12676, e.g., the U.S. TAC, as delaying this rule would be impracticable and contrary to the public interest. The annual harvest specifications for Pacific whiting must be implemented by the start of the primary Pacific whiting season, which begins on May 15, 2016, or the primary Pacific whiting season will effectively remain closed.

    Every year, NMFS conducts a Pacific whiting stock assessment in which U.S. and Canadian scientists cooperate. The 2016 stock assessment for Pacific whiting was prepared in early 2016, and included updated total catch, length and age data from the U.S. and Canadian fisheries from 2015, and biomass indices from the 2015 Joint U.S.-Canadian acoustic/midwater trawl surveys. Because of this late availability of the most recent data for the assessment, and the need for time to conduct the treaty process for determining the TAC using the most recent assessment, it would not be possible to allow for notice and comment before the start of the primary Pacific whiting season on May 15.

    A delay in implementing the Pacific whiting harvest specifications to allow for notice and comment would be contrary to the public interest because it would require either a shorter primary whiting season or development of a TAC without the most recent data. A shorter season could prevent the tribal and non-tribal fisheries from attaining their 2016 allocations, which would result in unnecessary short-term adverse economic effects for the Pacific whiting fishing vessels and the associated fishing communities. A TAC determined without the most recent data could fail to account for significant fluctuations in the biomass of this relatively short-lived species. To prevent these adverse effects and to allow the Pacific whiting season to commence, it is in the best interest of the public to waive prior notice and comment.

    In addition, pursuant to 5 U.S.C. 553(d)(3), the NMFS Assistant Administrator finds good cause to waive the 30-day delay in effectiveness. Waiving the 30-day delay in effectiveness will not have a negative impact on any entities, as there are no new compliance requirements or other burdens placed on the fishing community with this rule. Failure to make this final rule effective at the start of the fishing year will undermine the intent of the rule, which is to promote the optimal utilization and conservation of Pacific whiting. Making this rule effective immediately would also serve the best interests of the public because it will allow for the longest possible Pacific whiting fishing season and therefore the best possible economic outcome for those whose livelihoods depend on this fishery. Because the 30-day delay in effectiveness would potentially cause significant financial harm without providing any corresponding benefits, this final rule is effective upon publication in the Federal Register.

    The preamble to the proposed rule and this final rule serve as the small entity compliance guide required by Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996. This action does not require any additional compliance from small entities that is not described in the preamble. Copies of this final rule are available from NMFS at the following Web site: http://www.westcoast.fisheries.noaa.gov/fisheries/management/whiting/pacific_whiting.html.

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

    When an agency proposes regulations, the Regulatory Flexibility Act (RFA) requires the agency to prepare and make available for public comment an Initial Regulatory Flexibility Analysis (IRFA) document that describes the impact on small businesses, non-profit enterprises, local governments, and other small entities. The IRFA is to aid the agency in considering all reasonable regulatory alternatives that would minimize the economic impact on affected small entities. After the public comment period, the agency prepares a Final Regulatory Flexibility Analysis (FRFA) that takes into consideration any new information and public comments. This FRFA incorporates the IRFA and a summary of the analyses completed to support the action.

    NMFS published a proposed rule on March 10, 2016 (81 FR 12676) for the allocation of the 2016 tribal Pacific whiting fishery. The comment period on the proposed rule closed on April 11, 2016, and no comments were received on the proposed rule, the IRFA, or the economic impacts of this action generally. An IRFA was prepared and summarized in the Classification section of the preamble to the proposed rule. The description of this action, its purpose, and its legal basis are described in the preamble to the proposed rule and are not repeated here. The FRFA describes the impacts on small entities, which are defined in the IRFA for this action and not repeated here. Analytical requirements for the FRFA are described in Regulatory Flexibility Act, section 604(a)(1) through (5), and summarized below. The FRFA must contain: (1) A succinct statement of the need for, and objectives of, the rule; (2) A summary of the significant issues raised by the public comments in response to the initial regulatory flexibility analysis, a summary of the assessment of the agency of such issues, and a statement of any changes made in the proposed rule as a result of such comments; (3) A description and an estimate of the number of small entities to which the rule will apply, or an explanation of why no such estimate is available; (4) A description of the projected reporting, recordkeeping and other compliance requirements of the rule, including an estimate of the classes of small entities which will be subject to the requirement and the type of professional skills necessary for preparation of the report or record; and (5) A description of the steps the agency has taken to minimize the significant economic impact on small entities consistent with the stated objectives of applicable statutes, including a statement of the factual, policy, and legal reasons for selecting the alternative adopted in the final rule and why each one of the other significant alternatives to the rule considered by the agency which affect the impact on small entities was rejected.

    This final rule establishes the initial 2016 Pacific whiting allocations for the tribal fishery, the fishery HG, the allocations for the non-tribal sectors (C/P, mothership, and shoreside), and the amount of Pacific whiting deducted from the TAC for scientific research and fishing mortality in non-groundfish fisheries. The amount of whiting allocated to these sectors is based on the U.S. TAC. From the U.S. TAC, small amounts of whiting that account for research catch and for bycatch in other fisheries are deducted. The amount of the tribal allocation is also deducted directly from the TAC. After accounting for these deductions, the remainder is the commercial harvest guideline. This guideline is then allocated among the other three sectors as follows: 34 percent for the C/P Coop Program; 24 percent for the MS Coop Program; and 42 percent for the Shorebased IFQ Program.

    There are four tribes that can participate in the tribal whiting fishery: The Hoh, Makah, Quileute, and Quinault. The current tribal fleet is composed of 5 trawlers but in recent years, there have been fewer vessels actually fishing. Based on groundfish ex-vessel revenues and on tribal enrollments (the population size of each tribe), the four tribes and their fleets are considered “small” entities. We expect one tribal entity, the Makah Tribe, to fish in 2016.

    This rule would also impact vessels in the non-tribal fishery that fish for Pacific whiting. Currently, there are three non-tribal sectors in the Pacific whiting fishery: Shorebased IFQ Program—Trawl Fishery; Mothership Coop Program—Whiting At-sea Trawl Fishery; and C/P Coop Program—Whiting At-sea Trawl Fishery.

    Currently, the Shorebased IFQ Program is composed of 172 Quota Share permits/accounts, 152 vessel accounts, and 44 first receivers. The Mothership fishery is currently composed of a single coop, with six mothership processor permits, and 34 Mothership/Catcher-Vessel endorsed permits, with three permits each having two catch history assignments. The C/P Program is composed of 10 C/P permits owned by three companies that have formed a single coop. These regulations directly affect IFQ Quota shareholders whose vessel accounts receive Quota Pounds (QP), holders of mothership catcher-vessel-endorsed permits who determine how many co-ops will participate in the fishery and how much fish each co-op is to receive, and the C/P Coop which is made up of three companies that own the catcher-processor permits.

    As part of the permit application processes for the non-tribal fisheries, based on a review of the SBA size criteria, applicants are asked if they consider themselves a “small” business, and they are asked to provide detailed ownership information. Although there are three non-tribal sectors, many companies participate in two sectors and some participate in all three sectors. All of the 34 mothership catch history assignments are associated with a single mothership co-op and all ten of the C/P permits are associated with a co-op. These co-ops are considered large entities from several perspectives; they have participants that are large entities, whiting co-op revenues exceed or have exceeded $20.5 million, or co-op members are connected to American Fishing Act permits or co-ops where the NMFS Alaska Region has determined they are all large entities (79 FR 54597; September 12, 2014). After accounting for cross participation, multiple Quota Share account holders, and affiliation through ownership, NMFS estimates that there are 103 non-tribal entities directly affected by these regulations, 89 of which are considered “small” businesses.

    In total in 2015, non-tribal sectors harvested 52 percent of the final non-tribal allocation of 296,685 mt. The revised Pacific whiting allocations for 2015 were: Tribal 26,888 mt, C/P Coop 100,873 mt; Mothership Coop 71,204 mt; and Shorebased IFQ Program 124,607.45 mt. Sector allocations in 2016 are higher than sector catches in 2015, and the initial 2016 allocations to these non-tribal sectors are thirteen percent higher than their 2015 initial allocations. NMFS concludes that this rule will be beneficial to both large and small entities.

    For the years 2011 to 2015, the total whiting fishery (tribal and non-tribal) averaged harvests of approximately 205,000 mt annually, worth an average estimated $52 million in ex-vessel revenues. As the U.S. whiting TAC has been highly variable during this time, so have harvests. In the past five years, harvests have ranged from 151,000 mt (2015) to 264,000 mt (2014). Ex-vessel revenues have also varied. Annual ex-vessel revenues have ranged from $25 million (2015) to $65 million (2013 and 2014). Revenues are estimated for the mothership and catcher/processor harvest using the average annual shoreside ex-vessel price. Total whiting harvest in 2015 was approximately 151,000 mt, worth $25 million, at a shoreside ex-vessel price of $167 per mt. Ex-vessel revenues in 2014 were over $64 million with a harvest of 264,000 mt and an average shoreside ex-vessel price of $240 per mt. The prices for whiting are largely determined by the world market for groundfish, because most of the whiting harvested is exported. Poor world market conditions led to a decrease in prices in 2015. A confluence of biological factors precluded the tribal fishery in 2015, and resulted in a much lower harvest percentage of the annual commercial TAC than in prior years. In 2015 NMFS reapportioned 30,000 mt of the original 56,888 mt tribal allocation. This reapportionment was based on conversations with the tribes and the best information available at the time, which indicated that this amount would not limit tribal harvest opportunities for the remainder of the year.

    NMFS believes this rule will not adversely affect small entities. There are no significant alternatives to the action in this final rule that accomplish the stated objectives of applicable statutes and the treaties with the affected tribes that minimize any of the significant economic impact of the final rule on small entities.

    The RFA can be found at http://www.archives.gov/federal-register/laws/regulatory-flexibility/. The NMFS Economic Guidelines that describe the RFA and EO 12866 can be found at http://www.nmfs.noaa.gov/sfa/domes_fish/EconomicGuidelines.pdf.

    There are no reporting or recordkeeping requirements associated with this final rule. No Federal rules have been identified that duplicate, overlap, or conflict with this action.

    NMFS issued Biological Opinions under the Endangered Species Act (ESA) on August 10, 1990, November 26, 1991, August 28, 1992, September 27, 1993, May 14, 1996, and December 15, 1999, pertaining to the effects of the Groundfish FMP fisheries on Chinook salmon (Puget Sound, Snake River spring/summer, Snake River fall, upper Columbia River spring, lower Columbia River, upper Willamette River, Sacramento River winter, Central Valley spring, California coastal), coho salmon (Central California coastal, southern Oregon/northern California coastal), chum salmon (Hood Canal summer, Columbia River), sockeye salmon (Snake River, Ozette Lake), and steelhead (upper, middle and lower Columbia River, Snake River Basin, upper Willamette River, central California coast, California Central Valley, south/central California, northern California, southern California). These biological opinions have concluded that implementation of the FMP is not expected to jeopardize the continued existence of any endangered or threatened species under the jurisdiction of NMFS, or result in the destruction or adverse modification of critical habitat.

    NMFS issued a Supplemental Biological Opinion on March 11, 2006, concluding that neither the higher observed bycatch of Chinook in the 2005 whiting fishery nor new data regarding salmon bycatch in the groundfish bottom trawl fishery required a reconsideration of its prior “no jeopardy” conclusion. NMFS also reaffirmed its prior determination that implementation of the FMP is not likely to jeopardize the continued existence of any of the affected Evolutionarily Significant Units (ESUs). Lower Columbia River coho (70 FR 37160, June 28, 2005) and Oregon Coastal coho (73 FR 7816, February 11, 2008) were relisted as threatened under the ESA. The 1999 biological opinion concluded that the bycatch of salmonids in the Pacific whiting fishery were almost entirely Chinook salmon, with little or no bycatch of coho, chum, sockeye, and steelhead.

    NMFS has reinitiated section 7 consultation on the Pacific Coast Groundfish FMP with respect to its effects on listed salmonids. In the event the consultation identifies either reasonable and prudent alternatives to address jeopardy concerns, or reasonable and prudent measures to minimize incidental take, NMFS would coordinate with the Council to put additional alternatives or measures into place, as required. After reviewing the available information, NMFS has concluded that, consistent with sections 7(a)(2) and 7(d) of the ESA, this action will not jeopardize any listed salmonid species, would not adversely modify any designated critical habitat, and will not result in any irreversible or irretrievable commitment of resources that would have the effect of foreclosing the formulation or implementation of any reasonable and prudent alternative measures.

    On December 7, 2012, NMFS completed a biological opinion concluding that the groundfish fishery is not likely to jeopardize non-salmonid marine species, including listed eulachon, the southern distinct population segment (DPS) of green sturgeon, humpback whales, the eastern DPS of Steller sea lions, and leatherback sea turtles. The opinion also concluded that the fishery is not likely to adversely modify critical habitat for green sturgeon and leatherback sea turtles. An analysis included in the same document as the opinion concludes that the fishery is not likely to adversely affect green sea turtles, olive ridley sea turtles, loggerhead sea turtles, sei whales, North Pacific right whales, blue whales, fin whales, sperm whales, Southern Resident killer whales, Guadalupe fur seals, or the critical habitat for Steller sea lions. Since that biological opinion, the eastern DPS of Steller sea lions was delisted on November 4, 2013 (78 FR 66140); however, this delisting did not change the designation of the codified critical habitat for the eastern DPS of Steller sea lions. On January 21, 2013, NMFS evaluated the fishery's effects on eulachon to consider whether the 2012 opinion should be reconsidered in light of new information from the 2011 fishery and the proposed chafing gear modifications. NMFS determined that information about bycatch of eulachon in 2011 and chafing gear regulations did not change the effects that were analyzed in the December 7, 2012, biological opinion, or provide any other basis to reinitiate consultation. At the Pacific Fishery Management Council's June 2015 meeting, new estimates of eulachon take from fishing activity under the FMP indicated that the incidental take threshold in the 2012 biological opinion was exceeded again in 2013. The increased bycatch may be due to increased eulachon abundance. In light of the new fishery and abundance information, NMFS has reinitiated consultation on eulachon. In the event the consultation identifies either reasonable and prudent alternatives to address jeopardy concerns, or reasonable and prudent measures to minimize incidental take, NMFS would coordinate with the Council to put additional alternatives or measures into place, as required. After reviewing the available information, NMFS concluded that, consistent with sections 7(a)(2) and 7(d) of the ESA, this action will not jeopardize any listed species, would not adversely modify any designated critical habitat, and will not result in any irreversible or irretrievable commitment of resources that would have the effect of foreclosing the formulation or implementation of any reasonable and prudent alternative measures.

    On November 21, 2012, the U.S. Fish and Wildlife Service (FWS) issued a biological opinion concluding that the groundfish fishery will not jeopardize the continued existence of the short-tailed albatross. The FWS also concurred that the fishery is not likely to adversely affect the marbled murrelet, California least tern, southern sea otter, bull trout, nor bull trout critical habitat. The 2012-2013 two-year average of short-tailed albatross take in the groundfish fishery, using expanded annual estimates of black-footed albatross as a proxy, ranged from 1.35 to 2.0 for the lower short-tailed albatross population estimate to 1.45 to 2.15 for the higher population estimates, which exceeded the 2 per 2-year period identified in the incidental take statement in the biological opinion. This led NMFS to reinitiate ESA Section 7 consultation on take of this species in the Pacific Coast Groundfish Fishery. Take of short-tailed albatross has not been observed in the whiting fishery, which is a midwater trawl fishery. After reviewing the available information, NMFS has concluded that, consistent with sections 7(a)(2) and 7(d) of the ESA, this action will not jeopardize listed short-tailed albatross, would not adversely modify any designated critical habitat, and will not result in any irreversible or irretrievable commitment of resources that would have the effect of foreclosing the formulation or implementation of any reasonable and prudent alternative measures. In the event the consultation identifies either reasonable and prudent alternatives to address jeopardy concerns, or reasonable and prudent measures to minimize incidental take, NMFS would coordinate with the Council to put additional alternatives or measures into place, as required.

    In accordance with the National Environmental Policy Act (NEPA), NMFS prepared a final environmental impact statement (FEIS) regarding Harvest Specifications and Management Measures for 2015-2016 and Biennial Periods Thereafter in the Pacific Coast Groundfish Fishery. In that FEIS, the effects of the Pacific whiting fishery were considered using a range of potential harvest levels, the highest of which considered was 408,260 mt, above the harvest level set in this rule.

    Pursuant to Executive Order 13175, this final rule was developed after meaningful collaboration with tribal officials from the area covered by the FMP. Consistent with the Magnuson-Stevens Act at 16 U.S.C. 1852(b)(5), one of the voting members of the Pacific Council is a representative of an Indian tribe with federally recognized fishing rights from the area of the Council's jurisdiction. In addition, NMFS has coordinated specifically with the tribes interested in the whiting fishery regarding the issues addressed by this final rule.

    List of Subjects in 50 CFR Part 660

    Fisheries, Fishing, Indian Fisheries.

    Dated: May 9, 2016. Samuel D. Rauch III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

    For the reasons set out in the preamble, 50 CFR part 660 is amended as follows:

    PART 660—FISHERIES OFF WEST COAST STATES 1. 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.

    2. In § 660.50, revise paragraph (f)(4) to read as follows:
    § 660.50 Pacific Coast treaty Indian fisheries.

    (f) * * *

    (4) Pacific whiting. The tribal allocation for 2016 is 64,322 mt.

    3. Tables 2a and 2b to part 660, subpart C, are revised to read as follows: ER16MY16.001

    a/ Annual catch limits (ACLs), annual catch targets (ACTs) and harvest guidelines (HGs) are specified as total catch values.

    b/ Fishery harvest guidelines means the harvest guideline or quota after subtracting Pacific Coast treaty Indian tribes allocations and projected catch, projected research catch, deductions for fishing mortality in non-groundfish fisheries, and deductions for EFPs from the ACL or ACT.

    c/ Bocaccio. A bocaccio stock assessment update was conducted in 2013 for the bocaccio stock between the U.S.-Mexico border and Cape Blanco. The stock is managed with stock-specific harvest specifications south of 40°10′ N. lat. and within the Minor Shelf Rockfish complex north of 40°10 N. lat. A historical catch distribution of approximately 6 percent was used to apportion the assessed stock to the area north of 40°10′ N. lat. The bocaccio stock was estimated to be at 31.4 percent of its unfished biomass in 2013. The OFL of 1,351 mt is projected in the 2013 stock assessment using an FMSY proxy of F50%. The ABC of 1,291 mt is a 4.4 percent reduction from the OFL (σ=0.36/P*=0.45) as it's a category 1 stock. The 362 mt ACL is based on the current rebuilding plan with a target year to rebuild of 2022 and an SPR harvest rate of 77.7 percent. 8.3 mt is deducted from the ACL to accommodate the incidental open access fishery (0.7 mt), EFP catch (3.0 mt) and research catch (4.6 mt), resulting in a fishery HG of 353.7 mt. The California recreational fishery has an HG of 185.6 mt.

    d/ Canary rockfish. A canary rockfish stock assessment update was conducted in 2011 and the stock was estimated to be at 23.2 percent of its unfished biomass coastwide in 2011. The coastwide OFL of 729 mt is projected in the 2011 rebuilding analysis using an FMSY proxy of F50%. The ABC of 697 mt is a 4.4 percent reduction from the OFL (σ=0.36/P*=0.45) as it's a category 1 stock. The ACL of 125 mt is based on the current rebuilding plan with a target year to rebuild of 2030 and an SPR harvest rate of 88.7 percent. 15.2 mt is deducted from the ACL to accommodate the Tribal fishery (7.7 mt), the incidental open access fishery (2 mt), EFP catch (1.0 mt) and research catch (4.5 mt) resulting in a fishery HG of 109.8 mt. Recreational HGs are: 3.5 mt (Washington); 12.0 mt (Oregon); and 25.0 mt (California).

    e/ Cowcod. A stock assessment for the Conception Area was conducted in 2013 and the stock was estimated to be 33.9 percent of its unfished biomass in 2013. The Conception Area OFL of 56.4 mt is projected in the 2013 rebuilding analysis using an FMSY proxy of F50%. The OFL of 12.0 mt for the unassessed portion of the stock in the Monterey area is based on depletion-based stock reduction analysis. The OFLs for the Monterey and Conception areas were summed to derive the south of 40°10′ N. lat. OFL of 68.4 mt. The ABC for the area south of 40°10′ N. lat. is 61.5 mt. The assessed portion of the stock in the Conception Area is considered category 2, with a Conception Area contribution to the ABC of 51.5 mt, which is an 8.7 percent reduction from the Conception area OFL (σ=0.72/P*=0.45). The unassessed portion of the stock in the Monterey area is considered a category 3 stock, with a contribution to the ABC of 10.0 mt, which is a 17 percent reduction from the Monterey area OFL (σ=1.44/P*=0.45). A single ACL of 10.0 mt is being set for both areas combined. The ACL of 10.0 mt is based on the rebuilding plan with a target year to rebuild of 2020 and an SPR harvest rate of 82.7 percent, which is equivalent to an exploitation rate (catch over age 11+ biomass) of 0.007. 2.0 mt is deducted from the ACL to accommodate EFP fishing (less than 0.02 mt) and research activity (2.0 mt), resulting in a fishery HG of 8.0 mt. Any additional mortality in research activities will be deducted from the ACL. A single ACT of 4.0 mt is being set for both areas combined.

    f/ Darkblotched rockfish. A 2013 stock assessment estimated the stock to be at 36 percent of its unfished biomass in 2013. The OFL of 580 mt is projected in the 2013 stock assessment using an FMSY proxy of F50%.The ABC of 554 mt is a 4.4 percent reduction from the OFL (σ=0.36/P*=0.45) as it's a category 1 stock. The ACL of 346 mt is based on the current rebuilding plan with a target year to rebuild of 2025 and an SPR harvest rate of 64.9 percent. 20.8 mt is deducted from the ACL to accommodate the Tribal fishery (0.2 mt), the incidental open access fishery (18.4 mt), EFP catch (0.1 mt) and research catch (2.1 mt), resulting in a fishery HG of 325.2 mt.

    g/ Pacific Ocean Perch. A stock assessment was conducted in 2011 and the stock was estimated to be at 19.1 percent of its unfished biomass in 2011. The OFL of 850 mt for the area north of 40°10′ N. lat. is projected in the 2011 rebuilding analysis using an F50% FMSY proxy. The ABC of 813 mt is a 4.4 percent reduction from the OFL (σ=0.36/P*=0.45) as it's a category 1 stock. The ACL of 164 mt is based on the current rebuilding plan with a target year to rebuild of 2051 and an SPR harvest rate of 86.4 percent. 15 mt is deducted from the ACL to accommodate the Tribal fishery (9.2 mt), the incidental open access fishery (0.6 mt), and research catch (5.2 mt), resulting in a fishery HG of 149.0 mt.

    h/ Petrale sole. A 2013 stock assessment estimated the stock to be at 22.3 percent of its unfished biomass in 2013. The OFL of 3,044 mt is projected in the 2013 assessment using an F30% FMSY proxy. The ABC of 2,910 mt is a 4.4 percent reduction from the OFL (σ=0.36/P*=0.45) as it's a category 1 stock. The ACL is based on the 25-5 harvest control rule specified in the current rebuilding plan; since the stock is projected to be rebuilt at the start of 2014, the ACL is set equal to the ABC. 236.6 mt is deducted from the ACL to accommodate the Tribal fishery (220 mt), the incidental open access fishery (2.4 mt), and research catch (14.2 mt), resulting in a fishery HG of 2,673.4 mt.

    i/ Yelloweye rockfish. A stock assessment update was conducted in 2011. The stock was estimated to be at 21.4 percent of its unfished biomass in 2011. The 52 mt coastwide OFL was projected in the 2011 rebuilding analysis using an FMSY proxy of F50%. The ABC of 43 mt is a 16.77 percent reduction from the OFL (σ=0.72/P*=0.40) as it's a category 2 stock. The 19 mt ACL is based on the current rebuilding plan with a target year to rebuild of 2074 and an SPR harvest rate of 76.0 percent. 5.8 mt is deducted from the ACL to accommodate the Tribal fishery (2.3 mt), the incidental open access fishery (0.2 mt), EFP catch (0.03 mt) and research catch (3.3 mt) resulting in a fishery HG of 13.2 mt. Recreational HGs are being established: 3.1 mt (Washington); 2.8 mt (Oregon); and 3.7 mt (California).

    j/ Arrowtooth flounder. The arrowtooth flounder stock was last assessed in 2007 and was estimated to be at 79 percent of its unfished biomass in 2007. The OFL of 6,396 mt is derived from the 2007 assessment using an F30% FMSY proxy. The ABC of 5,328 mt is a 16.7 percent reduction from the OFL (σ=0.72/P*=0.40) as it's a category 2 stock. The ACL is set equal to the ABC because the stock is above its target biomass of B25%. 2,087 mt is deducted from the ACL to accommodate the Tribal fishery (2,041 mt), the incidental open access fishery (30 mt), and research catch (16.4 mt), resulting in a fishery HG of 3,241 mt.

    k/ Black rockfish south (Oregon and California). A stock assessment was conducted for black rockfish south of 45°46′ N. lat. (Cape Falcon, Oregon) to Central California (i.e., the southern-most extent of black rockfish, Love et al. 2002) in 2007. The biomass in the south was estimated to be at 70 percent of its unfished biomass in 2007. The OFL from the assessed area is derived from the 2007 assessment using an FMSY harvest rate proxy of F50% plus 3 percent of the OFL from the stock assessment conducted for black rockfish north of 45°46′ N. lat., to cover the portion of the stock occurring off Oregon north of Cape Falcon (the 3% adjustment is based on historical catch distribution). The resulting OFL for the area south of 46°16′ N. lat. is 1,183 mt. The ABC of 1,131 mt is a 4.4 percent reduction from the OFL (σ=0.36/P*=0.45) as it's a category 1 stock. The 2016 ACL is 1,000 mt, which maintains the constant catch strategy designed to keep the stock above its target biomass of B40%. 1 mt is deducted from the ACL to accommodate EFP catch, resulting in a fishery HG of 999 mt. The black rockfish ACL, in the area south of 46°16′ N. lat. (Columbia River), is subdivided with separate HGs for waters off Oregon (579 mt/58 percent) and for waters off California (420 mt/42 percent).

    l/ Black rockfish north (Washington). A stock assessment was conducted for black rockfish north of 45°46′ N. lat. (Cape Falcon, Oregon) in 2007. The biomass in the north was estimated to be at 53 percent of its unfished biomass in 2007. The OFL from the assessed area is derived from the 2007 assessment using an FMSY harvest rate proxy of F50%. The resulting OFL for the area north of 46°16′ N. lat. is 423 mt and is 97 percent of the OFL from the assessed area based on the area distribution of historical catch. The ABC of 404 mt for the north is a 4.4 percent reduction from the OFL (σ=0.36/P*=0.45) as it's a category 1 stock. The ACL is set equal to the ABC since the stock is above its target biomass of B40%. 14 mt is deducted from the ACL to accommodate the Tribal fishery, resulting in a fishery HG of 390 mt.

    m/ Cabezon (California). A cabezon stock assessment was conducted in 2009. The cabezon spawning biomass in waters off California was estimated to be at 48.3 percent of its unfished biomass in 2009. The OFL of 158 mt is calculated using an FMSY proxy of F45%. The ABC of 151 mt is based on a 4.4 percent reduction from the OFL (σ=0.36/P*=0.45) as it's a category 1 stock. The ACL is set equal to the ABC because the stock is above its target biomass of B40%. There are no deductions from the ACL so the fishery HG is equal to the ACL of 151 mt.

    n/ Cabezon (Oregon). A cabezon stock assessment was conducted in 2009. The cabezon spawning biomass in waters off Oregon was estimated to be at 52 percent of its unfished biomass in 2009. The OFL of 49 mt is calculated using an FMSY proxy of F45%. The ABC of 47 mt is based on a 4.4 percent reduction from the OFL (σ=0.36/P*=0.45) as it's a category 1 species. The ACL is set equal to the ABC because the stock is above its target biomass of B40%. There are no deductions from the ACL so the fishery HG is also equal to the ACL of 47 mt.

    o/ California scorpionfish was assessed in 2005 and was estimated to be at 79.8 percent of its unfished biomass in 2005. The OFL of 117 mt is projected in the 2005 assessment using an FMSY harvest rate proxy of F50%. The ABC of 111 mt is a 4.4 percent reduction from the OFL (σ=0.36/P*=0.45) as it's a category 1 stock. The ACL is set equal to the ABC because the stock is above its target biomass of B40%. 2 mt is deducted from the ACL to accommodate the incidental open access fishery, resulting in a fishery HG of 109 mt.

    p/ Chilipepper. The coastwide chilipepper stock was assessed in 2007 and estimated to be at 70 percent of its unfished biomass in 2006. Chilipepper are managed with stock-specific harvest specifications south of 40°10 N. lat. and within the Minor Shelf Rockfish complex north of 40°10′ N. lat. Projected OFLs are stratified north and south of 40°10′ N. lat. based on the average 1998-2008 assessed area catch, which is 93 percent for the area south of 40°10′ N. lat. and 7 percent for the area north of 40°10′ N. lat. The OFL of 1,694 mt for the area south of 40°10′ N. lat. is projected in the 2007 assessment using an FMSY proxy of F50%. The ABC of 1,619 mt is a 4.4 percent reduction from the OFL (σ=0.36/P*=0.45) as it's a category 1 stock. The ACL is set equal to the ABC because the stock is above its target biomass of B40%. 24 mt is deducted from the ACL to accommodate the incidental open access fishery (5 mt), EFP fishing (10 mt), and research catch (9 mt), resulting in a fishery HG of 1,595 mt.

    q/ Dover sole. A 2011 Dover sole assessment estimated the stock to be at 83.7 percent of its unfished biomass in 2011. The OFL of 59,221 mt is projected in the 2011 stock assessment using an FMSY proxy of F30%. The ABC of 56,615 mt is a 4.4 percent reduction from the OFL (σ=0.36/P*=0.45) as it's a category 1 stock. The ACL could be set equal to the ABC because the stock is above its target biomass of B25%. However, the ACL of 50,000 mt is set at a level below the ABC and higher than the maximum historical landed catch. 1,594 mt is deducted from the ACL to accommodate the Tribal fishery (1,497 mt), the incidental open access fishery (55 mt), and research catch (41.9 mt), resulting in a fishery HG of 48,406 mt.

    r/ English sole. A 2013 stock assessment was conducted, which estimated the stock to be at 88 percent of its unfished biomass in 2013. The OFL of 7,890 mt is projected in the 2013 assessment using an FMSY proxy of F30%. The ABC of 7,204 mt is an 8.7 percent reduction from the OFL (σ=0.72/P*=0.45) as it is a category 2 stock. The ACL could be set equal to the ABC because the stock is above its target biomass of B25%. 213 mt is deducted from the ACL to accommodate the Tribal fishery (200 mt), the incidental open access fishery (7 mt) and research catch (5.8 mt), resulting in a fishery HG of 6,991 mt.

    s/ Lingcod north. A lingcod stock assessment was conducted in 2009. The lingcod spawning biomass off Washington and Oregon was estimated to be at 62 percent of its unfished biomass in 2009. The OFL for Washington and Oregon of 1,842 mt is calculated using an FMSY proxy of F45%. The OFL is re-apportioned by adding 48% of the OFL from California, resulting in an OFL of 2,891 mt for the area north of 40°10′ N. lat. The ABC of 2,719 mt is based on a 4.4 percent reduction from the OFL (σ=0.36/P*=0.45) for the area north of 42° N. lat. as it's a category 1 stock, and an 8.7 percent reduction from the OFL (σ=0.72/P*=0.45) for the area between 42° N. lat. and 40°10′ N. lat., as it's a category 2 stock. The ACL is set equal to the ABC since the stock is above its target biomass of B40%. 278 mt is deducted from the ACL to accommodate the Tribal fishery (250 mt), the incidental open access fishery (16 mt), EFP catch (0.5 mt) and research catch (11.7 mt), resulting in a fishery HG of 2,441 mt.

    t/ Lingcod south. A lingcod stock assessment was conducted in 2009. The lingcod spawning biomass off California was estimated to be at 74 percent of its unfished biomass in 2009. The OFL for California of 2,185 mt is projected in the assessment using an FMSY proxy of F45%. The OFL is re-apportioned by subtracting 48% of the OFL, resulting in an OFL of 1,136 mt for the area south of 40°10′ N. lat. The ABC of 946 mt is based on a 16.7 percent reduction from the OFL (σ=0.72/P*=0.40) as it's a category 2 stock. The ACL is set equal to the ABC since the stock is above its target biomass of B40%. 9 mt is deducted from the ACL to accommodate the incidental open access fishery (7 mt), EFP fishing (1 mt), and research catch (1.1 mt), resulting in a fishery HG of 937 mt.

    u/ Longnose skate. A stock assessment was conducted in 2007 and the stock was estimated to be at 66 percent of its unfished biomass. The OFL of 2,405 mt is derived from the 2007 stock assessment using an FMSY proxy of F50%. The ABC of 2,299 mt is a 4.4 percent reduction from the OFL (σ=0.36/P*=0.45) as it's a category 1 stock. The ACL of 2,000 mt is a fixed harvest level that provides greater access to the stock and is less than the ABC. 73 mt is deducted from the ACL to accommodate the Tribal fishery (56 mt), incidental open access fishery (3.8 mt), and research catch (13.2 mt), resulting in a fishery HG of 1,927 mt.

    v/ Longspine thornyhead. A 2013 longspine thornyhead coastwide stock assessment estimated the stock to be at 75 percent of its unfished biomass in 2013. A coastwide OFL of 4,763 mt is projected in the 2013 stock assessment using an F50% FMSY proxy. The ABC of 3,968 mt is a 16.7 percent reduction from the OFL (σ=0.72/P*=0.40) as it's a category 2 stock. For the portion of the stock that is north of 34°27′ N. lat., the ACL is 3,015 mt, and is 76 percent of the coastwide ABC based on the average swept-area biomass estimates (2003-2012) from the NMFS NWFSC trawl survey. 46 mt is deducted from the ACL to accommodate the Tribal fishery (30 mt), the incidental open access fishery (3 mt), and research catch (13.5 mt) resulting in a fishery HG of 2,969 mt. For that portion of the stock south of 34°27′ N. lat. the ACL is 952 mt and is 24 percent of the coastwide ABC based on the average swept-area biomass estimates (2003-2012) from the NMFS NWFSC trawl survey. 3 mt is deducted from the ACL to accommodate the incidental open access fishery (2 mt), and research catch (1 mt) resulting in a fishery HG of 949 mt.

    w/ Pacific cod. The 3,200 mt OFL is based on the maximum level of historic landings. The ABC of 2,221 mt is a 30.6 percent reduction from the OFL (σ=1.44/P*=0.40) as it's a category 3 stock. The 1,600 mt ACL is the OFL reduced by 50 percent as a precautionary adjustment. 509 mt is deducted from the ACL to accommodate the Tribal fishery (500 mt), research catch (7 mt), and the incidental open access fishery (2.0 mt), resulting in a fishery HG of 1,091 mt.

    x/ Pacific whiting. The coastwide stock assessment was published in 2016 and estimated the spawning stock to be at 76 percent of its unfished biomass. The 2016 OFL of 830,124 mt is based on the 2016 assessment with an F40% FMSY proxy. The 2016 coastwide, unadjusted Total Allowable Catch (TAC) of 439,995 mt is based on the 2016 stock assessment. The U.S. TAC is 73.88 percent of the coastwide unadjusted TAC. Up to 15 percent of each party's unadjusted 2015 TAC (42,485 mt for the U.S. and 15,020 mt for Canada) is added to each party's 2016 unadjusted TAC, resulting in a U.S. adjusted 2016 TAC of 367,553 mt. From the adjusted U.S. TAC, 64,322 mt is deducted to accommodate the Tribal fishery, and 1,500 mt is deducted to accommodate research and bycatch in other fisheries, resulting in a fishery HG of 301,731 mt. The TAC for Pacific whiting is established under the provisions of the Agreement with Canada on Pacific Hake/Whiting and the Pacific Whiting Act of 2006, 16 U.S.C. 7001-7010, and the international exception applies. Therefore, no ABC or ACL values are provided for Pacific whiting.

    y/ Sablefish north. A coastwide sablefish stock assessment was conducted in 2011. The coastwide sablefish biomass was estimated to be at 33 percent of its unfished biomass in 2011. The coastwide OFL of 8,526 mt is projected in the 2011 stock assessment using an FMSY proxy of F45%. The ABC of 7,784 mt is an 8.7 percent reduction from the OFL (σ=0.36/P*=0.40). The 40-10 adjustment was applied to the ABC to derive a coastwide ACL value because the stock is in the precautionary zone. This coastwide ACL value is not specified in regulations. The coastwide ACL value is apportioned north and south of 36° N. lat., using the 2003-2010 average estimated swept area biomass from the NMFS NWFSC trawl survey, with 73.6 percent apportioned north of 36° N. lat. and 26.4 percent apportioned south of 36° N. lat. The northern ACL is 5,241 mt and is reduced by 524 mt for the tribal allocation (10 percent of the ACL north of 36° N. lat.). The 524 mt Tribal allocation is reduced by 1.6 percent to account for discard mortality. Detailed sablefish allocations are shown in Table 2c.

    z/ Sablefish south. The ACL for the area south of 36° N. lat. is 1,880 mt (26.4 percent of the calculated coastwide ACL value). 5 mt is deducted from the ACL to accommodate the incidental open access fishery (2 mt) and research catch (3 mt), resulting in a fishery HG of 1,875 mt.

    aa/ Shortbelly rockfish. A non-quantitative shortbelly rockfish assessment was conducted in 2007. The spawning stock biomass of shortbelly rockfish was estimated to be 67 percent of its unfished biomass in 2005. The OFL of 6,950 mt is based on the estimated MSY in the 2007 stock assessment. The ABC of 5,789 mt is a 16.7 percent reduction of the OFL (σ=0.72/P*=0.40) as it's a category 2 stock. The 500 mt ACL is set to accommodate for incidental catch when fishing for co-occurring healthy stocks and in recognition of the stock's importance as a forage species in the California Current ecosystem. 2 mt is deducted from the ACL to accommodate research catch, resulting in a fishery HG of 498 mt.

    bb/ Shortspine thornyhead. A 2013 coastwide shortspine thornyhead stock assessment estimated the stock to be at 74.2 percent of its unfished biomass in 2013. A coastwide OFL of 3,169 mt is projected in the 2013 stock assessment using an F50% FMSY proxy. The coastwide ABC of 2,640 mt is a 16.7 percent reduction from the OFL (σ=0.72/P*=0.40) as it's a category 2 stock. For the portion of the stock that is north of 34°27′ N. lat., the ACL is 1,726 mt. The northern ACL is 65.4 percent of the coastwide ABC based on the average swept-area biomass estimates (2003-2012) from the NMFS NWFSC trawl survey. 59 mt is deducted from the ACL to accommodate the Tribal fishery (50 mt), the incidental open access fishery (2 mt), and research catch (7 mt) resulting in a fishery HG of 1,667 mt for the area north of 34°27′ N. lat. For that portion of the stock south of 34°27′ N. lat. the ACL is 913 mt. The southern ACL is 35.6 percent of the coastwide ABC based on the average swept-area biomass estimates (2003-2012) from the NMFS NWFSC trawl survey. 42 mt is deducted from the ACL to accommodate the incidental open access fishery (41 mt) and research catch (1 mt), resulting in a fishery HG of 871 mt for the area south of 34°27′ N. lat.

    cc/ Spiny dogfish. A coastwide spiny dogfish stock assessment was conducted in 2011. The coastwide spiny dogfish biomass was estimated to be at 63 percent of its unfished biomass in 2011. The coastwide OFL of 2,503 mt is derived from the 2011 assessment using an FMSY proxy of F50%. The coastwide ABC of 2,085 mt is a 16.7 percent reduction from the OFL (σ=0.72/P*=0.40) as it's a category 2 stock. The ACL is set equal to the ABC because the stock is above its target biomass of B40%. 338 mt is deducted from the ACL to accommodate the Tribal fishery (275 mt), the incidental open access fishery (49.5 mt), EFP catch (1 mt), and research catch (12.5 mt), resulting in a fishery HG of 1,747 mt.

    dd/ Splitnose rockfish. A splitnose rockfish coastwide assessment was conducted in 2009 that estimated the stock to be at 66 percent of its unfished biomass in 2009. Splitnose rockfish in the north is managed in the Minor Slope Rockfish complex and with species-specific harvest specifications south of 40°10′ N. lat. The coastwide OFL is projected in the 2009 assessment using an FMSY proxy of F50%. The coastwide OFL is apportioned north and south of 40°10′ N. lat. based on the average 1916-2008 assessed area catch resulting in 64.2 percent of the coastwide OFL apportioned south of 40°10′ N. lat., and 35.8 percent apportioned for the contribution of splitnose rockfish to the northern Minor Slope Rockfish complex. The southern OFL of 1,826 mt results from the apportionment described above. The southern ABC of 1,746 mt is a 4.4 percent reduction from the southern OFL (σ=0.36/P*=0.45) as it's a category 1 stock. The ACL is set equal to the ABC because the stock is estimated to be above its target biomass of B40%. 110.5 mt is deducted from the ACL to accommodate research catch (9 mt) and EFP catch (1.5 mt), resulting in a fishery HG of 1,736 mt.

    ee/ Starry flounder. The stock was assessed in 2005 and was estimated to be above 40 percent of its unfished biomass in 2005 (44 percent in Washington and Oregon, and 62 percent in California). The coastwide OFL of 1,847 mt is derived from the 2005 assessment using an FMSY proxy of F30%. The ABC of 1,539 mt is a 16.7 percent reduction from the OFL (σ=0.72/P*=0.40) as it's a category 2 stock. The ACL is set equal to the ABC because the stock is estimated to be above its target biomass of B25%. 10.3 mt is deducted from the ACL to accommodate the Tribal fishery (2 mt), and the incidental open access fishery (8.3 mt), resulting in a fishery HG of 1,529 mt.

    ff/ Widow rockfish. The widow rockfish stock was assessed in 2011 and was estimated to be at 51.1 percent of its unfished biomass in 2011. The OFL of 3,990 mt is projected in the 2011 stock assessment using an F50% FMSY proxy. The ABC of 3,790 mt is a 5 percent reduction from the OFL (σ=0.41/P*=0.45). A unique sigma of 0.41 was calculated for widow rockfish since the variance in estimated biomass was greater than the 0.36 used as a proxy for other category 1 stocks. The ACL could be set equal to the ABC because the stock is above its target biomass of B40%. However, the ACL of 2,000 mt is less than the ABC due to high uncertainty in estimated biomass, yet this level of allowable harvest will allow access to healthy co-occurring species, such as yellowtail rockfish. 120.2 mt is deducted from the ACL to accommodate the Tribal fishery (100 mt), the incidental open access fishery (3.3 mt), EFP catch (9 mt), and research catch (7.9 mt), resulting in a fishery HG of 1,880 mt.

    gg/ Yellowtail rockfish. A 2013 yellowtail rockfish stock assessment was conducted for the portion of the population north of 40°10′ N. lat. The estimated stock depletion is 69 percent of its unfished biomass in 2013. The OFL of 6,949 mt is projected in the 2013 stock assessment using an FMSY proxy of F50%. The ABC of 6,344 mt is an 8.7 percent reduction from the OFL (σ=0.72/P*=0.45) as it is a category 2 stock. The ACL is set equal to the ABC because the stock is above its target biomass of B40%. 1,029.6 mt is deducted from the ACL to accommodate the Tribal fishery (1,000 mt), the incidental open access fishery (3 mt), EFP catch (10 mt) and research catch (16.6 mt), resulting in a fishery HG of 5,314 mt.

    hh/ Minor Nearshore Rockfish north. The OFL for Minor Nearshore Rockfish north of 40°10′ N. lat. of 88 mt is the sum of the OFL contributions for the component species managed in the complex. The ABCs for the minor rockfish complexes are based on a sigma value of 0.72 for category 2 stocks (i.e., blue rockfish in California, brown rockfish, China rockfish, and copper rockfish) and a sigma value of 1.44 for category 3 stocks (all others) with a P* of 0.45. The resulting ABC of 77 mt is the summed contribution of the ABCs for the component species. The ACL of 69 mt is the sum of contributing ABCs of healthy assessed stocks and unassessed stocks, plus the ACL contributions for blue rockfish in California and China rockfish where the 40-10 adjustment was applied to the ABC contributions for these two stocks because they are in the precautionary zone. No deductions are made to the ACL, thus the fishery HG is equal to the ACL, which is 69 mt. Between 40°10′ N. lat. and 42° N. lat. the Minor Nearshore Rockfish complex north has a harvest guideline of 23.7 mt. Blue rockfish south of 42° N. lat. has a species-specific HG, described in footnote kk/.

    ii/ Minor Shelf Rockfish north. The OFL for Minor Shelf Rockfish north of 40°10′ N. lat. of 2,218 mt is the sum of the OFL contributions for the component species within the complex. The ABCs for the minor rockfish complexes are based on a sigma value of 0.72 for category 2 stocks (i.e., greenspotted rockfish between 40°10′ and 42° N. lat. and greenstriped rockfish) and a sigma value of 1.44 for category 3 stocks (all others) with a P* of 0.45. The resulting ABC of 1,953 mt is the summed contribution of the ABCs for the component species. The ACL of 1,952 mt is the sum of contributing ABCs of healthy assessed stocks and unassessed stocks, plus the ACL contribution of greenspotted rockfish in California where the 40-10 adjustment was applied to the ABC contribution for this stock because it is in the precautionary zone. 72 mt is deducted from the ACL to accommodate the Tribal fishery (30 mt), the incidental open access fishery (26 mt), EFP catch (3 mt), and research catch (13.4 mt), resulting in a fishery HG of 1,880 mt.

    jj/ Minor Slope Rockfish north. The OFL for Minor Slope Rockfish north of 40°10′ N. lat. of 1,844 mt is the sum of the OFL contributions for the component species within the complex. The ABCs for the Minor Slope Rockfish complexes are based on a sigma value of 0.39 for aurora rockfish, a sigma value of 0.36 for other category 1 stocks (i.e., splitnose rockfish), a sigma value of 0.72 for category 2 stocks (i.e., rougheye rockfish, blackspotted rockfish and sharpchin rockfish), and a sigma value of 1.44 for category 3 stocks (all others) with a P* of 0.45. A unique sigma of 0.39 was calculated for aurora rockfish since the variance in estimated spawning biomass was greater than the 0.36 used as a proxy for other category 1 stocks. The resulting ABC of 1,706 mt is the summed contribution of the ABCs for the component species. The ACL is set equal to the ABC because all the assessed component stocks are above the target biomass of B40%. 64 mt is deducted from the ACL to accommodate the Tribal fishery (36 mt), the incidental open access fishery (19 mt), EFP catch (1 mt), and research catch (8.1 mt), resulting in a fishery HG of 1,642 mt.

    kk/ Minor Nearshore Rockfish south. The OFL for the Minor Nearshore Rockfish complex south of 40°10′ N. lat. of 1,288 mt is the sum of the OFL contributions for the component species within the complex. The ABC for the southern Minor Nearshore Rockfish complex is based on a sigma value of 0.36 for category 1 stocks (i.e., gopher rockfish north of 34°27′ N. lat.), a sigma value of 0.72 for category 2 stocks (i.e., blue rockfish north of 34°27′ N. lat., brown rockfish, China rockfish and copper rockfish) and a sigma value of 1.44 for category 3 stocks (all others) with a P* of 0.45. The resulting ABC of 1,148 mt is the summed contribution of the ABCs for the component species. The ACL of 1,006 mt is the sum of the contributing ABCs of healthy assessed stocks and unassessed stocks, plus the ACL contribution for blue rockfish north of 34°27′ N. lat. where the 40-10 adjustment was applied to the ABC contribution for this stock because it is in the precautionary zone. 4 mt is deducted from the ACL to accommodate the incidental open access fishery (1.4 mt) and research catch (2.6 mt), resulting in a fishery HG of 1,002 mt. Blue rockfish south of 42° N. lat. has a species-specific HG set equal to the 40-10-adjusted ACL for the portion of the stock north of 34°27′ N lat. (137.5) plus the ABC contribution for the unassessed portion of the stock south of 34°27′ N. lat. (60.8 mt). The California (i.e. south of 42° N. lat.) blue rockfish HG is 198.3 mt.

    ll/ Minor Shelf Rockfish south. The OFL for the Minor Shelf Rockfish complex south of 40°10′ N. lat. of 1,919 mt is the sum of the OFL contributions for the component species within the complex. The ABCs for the southern Minor Shelf Rockfish complex is based on a sigma value of 0.72 for category 2 stocks (i.e., greenspotted and greenstriped rockfish) and a sigma value of 1.44 for category 3 stocks (all others) with a P* of 0.45. The resulting ABC of 1,626 mt is the summed contribution of the ABCs for the component species. The ACL of 1,625 mt is the sum of contributing ABCs of healthy assessed stocks and unassessed stocks, plus the ACL contribution of greenspotted rockfish in California where the 40-10 adjustment was applied to the ABC contribution for this stock because it is in the precautionary zone. 49 mt is deducted from the ACL to accommodate the incidental open access fishery (9 mt), EFP catch (30 mt), and research catch (9.6 mt), resulting in a fishery HG of 1,576 mt.

    mm/ Minor Slope Rockfish south. The OFL of 814 mt is the sum of the OFL contributions for the component species within the complex. The ABC for the southern Minor Slope Rockfish complex is based on a sigma value of 0.39 for aurora rockfish, a sigma value of 0.72 for category 2 stocks (i.e., blackgill rockfish, rougheye rockfish, blackspotted rockfish, sharpchin rockfish) and a sigma value of 1.44 for category 3 stocks (all others) with a P* of 0.45. A unique sigma of 0.39 was calculated for aurora rockfish since the variance in estimated biomass was greater than the 0.36 used as a proxy for other category 1 stocks. The resulting ABC of 705 mt is the summed contribution of the ABCs for the component species. The ACL of 695 mt is the sum of the contributing ABCs of healthy assessed stocks and unassessed stocks, plus the ACL contribution of blackgill rockfish where the 40-10 adjustment was applied to the ABC contribution for this stock because it is in the precautionary zone. 20 mt is deducted from the ACL to accommodate the incidental open access fishery (17 mt), EFP catch (1 mt), and research catch (2 mt), resulting in a fishery HG of 675 mt. Blackgill rockfish has a species-specific HG set equal to the species' contribution to the 40-10-adjusted ACL. The blackgill rockfish HG is 117 mt.

    nn/ Other Flatfish. The Other Flatfish complex is comprised of flatfish species managed in the PCGFMP that are not managed with species-specific OFLs/ABCs/ACLs. Most of the species in the Other Flatfish complex are unassessed, and include: butter sole, curlfin sole, flathead sole, Pacific sanddab (assessed in 2013, but the assessment results were too uncertain to inform harvest specifications), rock sole, sand sole, and rex sole (assessed in 2013). The Other Flatfish OFL of 9,645 mt is based on the sum of the OFL contributions of the component stocks. The ABC of 7,243 mt is based on a sigma value of 0.72 for category 2 stocks (i.e., rex sole) and a sigma value of 1.44 for category 3 stocks (all others) with a P* of 0.40. The ACL is set equal to the ABC. The ACL is set equal to the ABC since all of the assessed stocks (i.e., Pacific sanddabs and rex sole) were above their target biomass of B25%. 204 mt is deducted from the ACL to accommodate the Tribal fishery (60 mt), the incidental open access fishery (125 mt), and research catch (19 mt), resulting in a fishery HG of 7,039 mt.

    oo/ Other Fish. The Other Fish complex is comprised of kelp greenling coastwide, cabezon off Washington, and leopard shark coastwide. These species are unassessed. The OFL of 291 mt is the sum of the OFL contributions for kelp greenling off California (the SSC has not approved methods for calculating the OFL contributions for kelp greenling off Oregon and Washington), cabezon off Washington, and leopard shark coastwide. The ABC of 243 mt is the sum of ABC contributions for kelp greenling off California, cabezon off Washington and leopard shark coastwide calculated by applying a P* of 0.45 and a sigma of 1.44 to the OFL contributions for those stocks. The ACL is set equal to the ABC. There are no deductions from the ACL so the fishery HG is equal to the ACL of 243 mt.

    BILLING CODE 3510-22-P ER16MY16.000 BILLING CODE 3510-22-C 4. In § 660.140, revise paragraph (d)(1)(ii)(D) to read as follows:
    § 660.140 Shorebased IFQ Program.

    (d) * * *

    (1) * * *

    (ii) * * *

    (D) For the trawl fishery, NMFS will issue QP based on the following shorebased trawl allocations:

    IFQ Species Management area 2015 Shorebased
  • trawl allocation
  • (mt)
  • 2016 Shorebased
  • trawl allocation
  • (mt)
  • Arrowtooth flounder 3,193.93 3,033.38 BOCACCIO South of 40°10′ N. lat 81.89 85.02 CANARY ROCKFISH 43.26 44.48 Chilipepper South of 40°10′ N. lat 1,203.00 1,196.25 COWCOD South of 40°10′ N. lat 1.44 1.44 DARKBLOTCHED ROCKFISH 285.61 292.81 Dover sole 45,980.80 45,980.80 English sole 9,153.19 6,636.64 Lingcod North of 40°10′ N. lat 1,133.32 1,083.37 Lingcod South of 40°10′ N. lat 447.71 421.61 Longspine thornyhead North of 34°27′ N. lat 2,962.33 2,815.08 Minor Shelf Rockfish complex North of 40°10′ N. lat 1,091.70 1,096.52 Minor Shelf Rockfish complex South of 40°10′ N. lat 192.20 192.32 Minor Slope Rockfish complex North of 40°10′ N. lat 1,219.41 1,229.94 Minor Slope Rockfish complex South of 40°10′ N. lat 423.99 425.25 Other Flatfish complex 7,670.50 6,315.10 Pacific cod 1,031.41 1,031.41 PACIFIC OCEAN PERCH North of 40°10′ N. lat 118.45 124.15 Pacific Whiting 112,007.45 126,727.11 PETRALE SOLE 2,539.40 2,633.40 Sablefish North of 36° N. lat 2,199.37 2,411.24 Sablefish South of 36° N. lat 719.88 787.50 Shortspine thornyhead North of 34°27′ N. lat 1,581.49 1,563.44 Shortspine thornyhead South of 34°27′ N. lat 50.00 50.00 Splitnose rockfish South of 40°10′ N. lat 1,619.28 1,648.73 Starry flounder 756.85 759.35 Widow rockfish 1,420.62 1,420.62 YELLOWEYE ROCKFISH 1.00 1.08 Yellowtail rockfish North of 40°10′ N. lat 4,593.15 4,376.67
    [FR Doc. 2016-11329 Filed 5-12-16; 11:15 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 679 [Docket No. 150818742-6210-02] RIN 0648-XE623 Fisheries of the Exclusive Economic Zone Off Alaska; Deep-Water Species Fishery by Vessels Using Trawl Gear in the of the Gulf of Alaska AGENCY:

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

    ACTION:

    Temporary rule; opening.

    SUMMARY:

    NMFS is opening directed fishing for species that comprise the deep-water species fishery by vessels using trawl gear in the Gulf of Alaska (GOA). This action is necessary to fully use the 2016 groundfish total allowable catch specified for the species comprising the deep-water species category in the GOA.

    DATES:

    Effective 1200 hours, Alaska local time (A.l.t.), May 15, 2016, through 1200 hours, A.l.t., July 1, 2016.

    Comments must be received at the following address no later than 4:30 p.m., A.l.t., May 31, 2016.

    ADDRESSES:

    You may submit comments on this document, identified by FDMS Docket Number NOAA-NMFS-2015-0110, by any of the following methods:

    Electronic Submission: Submit all electronic public comments via the Federal e-Rulemaking Portal. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2015-0110, click the “Comment Now!” icon, complete the required fields, and enter or attach your comments.

    Mail: Address written comments to Glenn Merrill, Assistant Regional Administrator, Sustainable Fisheries Division, Alaska Region NMFS, Attn: Ellen Sebastian. Mail comments to P.O. Box 21668, Juneau, AK 99802-1668.

    Instructions: Comments sent by any other method, to any other address or individual, or received after the end of the comment period, may not be considered by NMFS. All comments received are a part of the public record and will generally be posted for public viewing on www.regulations.gov without change. All personal identifying information (e.g., name, address), confidential business information, or otherwise sensitive information submitted voluntarily by the sender will be publicly accessible. NMFS will accept anonymous comments (enter “N/A” in the required fields if you wish to remain anonymous). Attachments to electronic comments will be accepted in Microsoft Word, Excel, or Adobe PDF file formats only.

    FOR FURTHER INFORMATION CONTACT:

    Obren Davis, 907-586-7228.

    SUPPLEMENTARY INFORMATION:

    NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.

    NMFS prohibited directed fishing for species that comprise the deep-water species fishery by vessels using trawl gear in the GOA, effective 1200 hours, A.l.t., April 30, 2016 (May 4, 2016, 81 FR 26745) under § 679.21(d)(6)(i). That action was necessary because the second seasonal apportionment of the Pacific halibut bycatch allowance specified for the deep-water species fishery in the GOA was reached. The species and species groups that comprise the deep-water species fishery include sablefish, rockfish, deep-water flatfish, rex sole, and arrowtooth flounder.

    Regulations at § 679.21(d)(4)(iii)(D) require NMFS to combine management of the available trawl halibut PSC limits in the second season (April 1 through July 1) deep-water and shallow-water species fishery categories for use in either fishery from May 15 through June 30 of each year. The combined second seasonal apportionment of Pacific halibut PSC is 810 mt. This includes the deep-water and shallow water Pacific halibut PSC limits carried forward from the first seasonal apportionments (January 20 through April 1). The deep-water and shallow-water Pacific halibut PSC apportionments were established by the final 2016 and 2017 harvest specifications for groundfish of the GOA (81 FR 14740, March 18, 2016).

    As of May 10, 2016, NMFS has determined that there is approximately 135 metric tons of the trawl Pacific halibut PSC limit remaining in the deep-water fishery and shallow-water fishery seasonal apportionments. Therefore, in accordance with § 679.25(a)(1)(i), (a)(2)(i)(C), and (a)(2)(iii)(D), and to fully utilize the 2016 groundfish total allowable catch available in the deep-water species fishery category NMFS is terminating the previous closure and is reopening directed fishing for species comprising the deep-water fishery category in the GOA. The Administrator, Alaska Region (Regional Administrator) considered the following factors in reaching this decision: (1) The current harvest of Pacific halibut PSC in the deep-water species trawl fishery the of the GOA and, (2) the harvest capacity and stated intent on future harvesting patterns of vessels in participating in this fishery.

    Classification

    This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the opening of directed fishing for species comprising the deep-water species fishery category in the GOA. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of May 10, 2016.

    The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.

    Without this inseason adjustment, NMFS could not allow the trawl deep-water species fishery in the GOA to be harvested in an expedient manner and in accordance with the regulatory schedule. Under § 679.25(c)(2), interested persons are invited to submit written comments on this action to the above address until May 31, 2016.

    This action is required by § 679.21 and § 679.25 and is exempt from review under Executive Order 12866.

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: May 11, 2016. Emily H. Menashes, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2016-11492 Filed 5-13-16; 8:45 am] BILLING CODE 3510-22-P
    81 94 Monday, May 16, 2016 Proposed Rules DEPARTMENT OF ENERGY 10 CFR Part 429 [Docket No. EERE-2015-BT-CE-0019] RIN 1990-AA44 Energy Conservation Program: Certification and Enforcement—Import Data Collection; Notice of Reopening of Comment Period AGENCY:

    Office of the General Counsel, Department of Energy.

    ACTION:

    Notice of reopening of comment period.

    SUMMARY:

    On December 29, 2015, the U.S. Department of Energy (DOE) published a notice of proposed rulemaking (NOPR) in the Federal Register proposing that a person importing into the United States any covered product or equipment subject to an applicable energy conservation standard provide, prior to importation, a certification of admissibility to the DOE. DOE is reopening the comment period until June 15, 2016, to provide interested parties with additional time to submit comments.

    DATES:

    The comment period for the notice of proposed rulemaking published on December 29, 2015 (80 FR 81199), has been extended. DOE will accept comments, data, and information in response to the NOPR received no later than June 15, 2016.

    ADDRESSES:

    See the section “Public Participation” for details on submitting comments.

    FOR FURTHER INFORMATION CONTACT:

    Ms. Ashley Armstrong, 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: 202-586-6590. Email: [email protected]; or Mr. Steven Goering, U.S. Department of Energy, Office of the General Counsel, Forrestal Building, GC-32, 1000 Independence Avenue SW., Washington, DC 20585-0121. Telephone: 202-286-5691. Email: [email protected]

    SUPPLEMENTARY INFORMATION:

    On December 29, 2015, the U.S. Department of Energy (DOE) published a notice of proposed rulemaking in the Federal Register proposing that a person importing into the United States any covered product or equipment subject to an applicable energy conservation standard provide, prior to importation, a certification of admissibility to the DOE. (80 FR 81199) The comment period ended February 12, 2016. On February 17, 2016, after receiving several requests for additional time to prepare and submit comments, DOE reopened the comment period until February 29, 2016. (81 FR 8022) At a public meeting held on February 19, 2016, DOE again received requests for additional time to prepare and submit comments, and reopened the period for submitting comments until March 16, 2016. 81 FR 11686 (Mar. 7, 2016).

    DOE wishes to provide interested parties with additional time to submit comments, and is reopening the comment period until June 15, 2016. DOE is particularly interested in receiving comments and views of interested parties concerning how to minimize the burden of data collection to importers of covered products or equipment subject to an applicable energy conservation standard, while at the same time providing DOE with traceability information sufficient to determine whether a covered import is one that the DOE has previously identified as noncompliant with the relevant standard and, if so, to provide U.S. Customs and Border Protection (CBP) “a description of the noncompliant covered import that is sufficient to enable CBP to identify the subject merchandise and refuse admission thereof into the customs territory of the United States.” (19 CFR 12.50(c))

    In the NOPR, DOE proposed that an importer provide information regarding the importer's most recent submission in DOE's Compliance and Certification Management System (CCMS), specifically the CCMS ticket number, the CCMS attachment identification number assigned to the certification submission, and the line number in the submission corresponding to the basic model certified. Because DOE makes determinations of noncompliance on a basic model basis, identification of the certified basic model number of the covered import would allow DOE to accurately determine whether the covered import belongs to a basic model that has previously been found to be noncompliant with applicable energy conservation standards.

    DOE received comments in response to the NOPR suggesting the submission of alternative data elements to achieve its traceability requirements, such as brand and basic model number of the product, or brand and individual model number. One commenter stated that importers may already provide to CBP the model number of the covered products or equipment that they import, such that DOE may be able to rely on this information in lieu of additional information that it may require. Commenters also recommended that DOE allow multiple paths for importers of covered products to provide traceability information for their products.

    At the public meeting for the NOPR, DOE stated that it had considered alternatives to its proposal, such as requiring submission of brand and individual model number, or stock keeping unit (SKU). As noted, DOE is seeking a solution that will allow it to confirm that the covered import does not belong to a basic model that DOE has previously found to be noncompliant and is open to offering options for the importer to provide the necessary information in the least burdensome manner.

    To this end, DOE seeks comments on potential options to achieving DOE's goal of traceability while minimizing the burden on importers. Among the possibilities DOE is considering, some of which have been suggested by commenters to date, are for importers to provide: The brand name and basic model number of the product or equipment as reported in the most recent CCMS certification submission; the brand name and individual model number of the product or equipment as reported in the most recent CCMS certification submission; or a SKU code, Universal Product Code, International Article Number, or Global Trade Item Number. Generally, DOE seeks comment on the advantage of allowing importers to use any unique identifier of the covered import that is readily available to employees of the importer across the enterprise, whether they interface with CBP or customs brokers or whether they are the employees who file certifications for the importer in CCMS. For DOE to adopt this approach, the importer would have to provide the same identifier in the corresponding CCMS report. DOE also welcomes comments as to other alternatives that would minimize importer burden while still allowing DOE to confirm that a covered import does not belong to a basic model that DOE has previously found to be noncompliant.

    Commenters have expressed concern with respect to DOE's proposal to require certain information related to covered products or equipment that are a component of another finished product, due to the fact that an importer may use more than one basic model of component part in its finished product, and may not know which basic model is contained in a given shipment. DOE notes that the purpose of this proposal is to allow quick identification by CBP of a noncompliant product. DOE welcomes comments on alternatives, including alternatives that would reduce importer burden, such as allowing the importer to identify the range of possible component part basic models, but importers should be aware that this approach could potentially result in a greater impact by having CBP stop shipments that may not contain noncompliant products due to the importer's choice to group multiple basic models into a single identifier.

    In addition, DOE understands that characterizing its proposed requirement as a “certificate of admissibility” may have created the mistaken impression that it was proposing a conformity assessment procedure as described in the Technical Barriers to Trade Agreement administered by the World Trade Organization. DOE wishes to emphasize, however, that it is not proposing to mandate any additional testing 1 or to require submission of information unnecessarily redundant of that already provided in accordance with those regulations. Instead, DOE only seeks in its proposal to collect the minimum information necessary to trace the covered import to the certified basic model to which it belongs.

    1 Existing DOE regulations require testing to ensure compliance with energy conservation standards.

    Moreover, it is not DOE's intent to delay in any way the importation of any covered product or equipment, aside from that for which DOE has already, separately, made a final determination that the basic model to which the covered import belongs is not compliant with applicable energy conservation standards. The importation of such a product is already prohibited. In addition, DOE notes that, although the information it proposes to collect would allow it to determine whether a covered import has been properly certified to DOE in CCMS, DOE is not proposing to delay the importation of a covered product subject to energy conservation standards solely due to a failure to certify the covered import. With this in mind, DOE welcomes comments on possible alternatives to the term “certification of admissibility” in reference to what is, in essence, a limited collection of information for purposes of traceability.

    Finally, DOE seeks comments on alternatives to the proposed compliance date for the rule of 2 years after the date of publication of the final rule in the Federal Register, such as a delayed or phased-in compliance date.

    DOE will accept comments, data, and information in response to the NOPR received no later than June 15, 2016. DOE will consider any comments in response to the NOPR received by midnight of June 15, 2016, and deems any comments received by that time to be timely submitted. Based on the comments received, DOE will determine whether it will need to issue a supplemental notice of proposed rulemaking or proceed to a final rule.

    Public Participation A. Submission of Comments

    Any comments submitted must identify the NOPR for Import Data Collection, and provide docket number EERE-2015-BT-CE-0019 and/or regulatory information number (RIN) number 1990-AA44. Comments may be submitted using any of the following methods:

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

    2. Email: [email protected] Include the docket number and/or RIN in the subject line of the message.

    3. Mail: Ms. Brenda Edwards, U.S. Department of Energy, Building Technologies Program, Mailstop EE-5B, 1000 Independence Avenue SW., Washington, DC 20585-0121. If possible, please submit all items on a CD. It is not necessary to include printed copies.

    4. Hand Delivery/Courier: Ms. Brenda Edwards, U.S. Department of Energy, Building Technologies Program, 950 L'Enfant Plaza SW., Suite 600, Washington, DC 20024. Telephone: (202) 586-2945. If possible, please submit all items on a CD. It is not necessary to include printed copies.

    Docket: The docket, which includes Federal Register notices, public meeting attendee lists and transcripts, comments, and other supporting documents/materials, is available for review at regulations.gov. All documents in the docket are listed in the regulations.gov index. However, some documents listed in the index, such as those containing information that is exempt from public disclosure, may not be publicly available.

    A link to the docket Web page can be found at: http://www.regulations.gov/#!docketDetail;D=EERE-2015-BT-CE-0019. This Web page will contain a link to the docket for this notice on the regulations.gov site. The regulations.gov Web page will contain simple instructions on how to access all documents, including public comments, in the docket.

    For further information on how to submit a comment, review other public comments and the docket, or to request a public meeting, contact Ms. Brenda Edwards at (202) 586-2945 or by email: [email protected]

    Issued in Washington, DC, on May 6, 2016. Kathleen B. Hogan, Deputy Assistant Secretary for Energy Efficiency, Energy Efficiency and Renewable Energy.
    [FR Doc. 2016-11468 Filed 5-13-16; 8:45 am] BILLING CODE 6450-01-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 93 [Docket No.: FAA-2014-1073; Notice No. 16-03] RIN 2120-AJ89 Slot Management and Transparency for LaGuardia Airport, John F. Kennedy International Airport, and Newark Liberty International Airport AGENCY:

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

    ACTION:

    Notice of proposed rulemaking; withdrawal.

    SUMMARY:

    The DOT is withdrawing a previously published Notice of Proposed Rulemaking (NPRM) that would have replaced the Orders limiting scheduled operations at John F. Kennedy International Airport (JFK), Newark Liberty International Airport (EWR), and LaGuardia Airport (LGA) with longer-term limits on scheduled and unscheduled operations at JFK, EWR, and LGA, and requested comment on options to establish a secondary market for the purchase, sale, lease, or trade of slots at these airports, as well as procedures that would codify the review of slot transactions arising from the secondary market for public interest and anti-competitive effects.

    DATES:

    As of May 16, 2016, the NPRM published on January 8, 2015 (80 FR 1274) is withdrawn.

    SUPPLEMENTARY INFORMATION:

    In 2006, the FAA issued an Order imposing temporary limits on operations at LGA (71 FR 77854), and in 2008, issued Orders imposing temporary limits on operations at JFK (73 FR 3510) and EWR (73 FR 29550). These Orders have been extended and are in effect until October 29, 2016. On April 6, 2016, the FAA announced that the current Order at EWR will expire on October 29, 2016, and that EWR will be a Level 2, schedule-facilitated airport under the Worldwide Slot Guidelines effective for the Winter 2016 scheduling season (81 FR 19861). By this same announcement, the FAA indicated that slot-controlled restrictions at JFK and LGA remain necessary and that the FAA will extend these Orders, by separate Federal Register notices, until October 27, 2018.

    On January 8, 2015, the FAA and DOT published an NPRM (80 FR 1274) that would replace the FAA's Orders limiting scheduled operations at JFK, EWR, and LGA with a long-term comprehensive approach to slot management at these airports. The NPRM proposed the continuation of the limits on scheduled and unscheduled operations in place at each of these airports under the Orders, and would have required use of an allocated slot 80% of the time for the same flight or series of flights. The NPRM also requested public comment about five alternatives for a secondary market for the purchase, sale, lease, or trade of slots and proposed procedures to codify the exercise of DOT's existing authority to review slot transactions for anti-competitive and public interest effects arising from those secondary market transactions that would have been permitted by the implementation of a bulletin board for the proposed secondary market.

    Since the FAA and DOT first initiated this rulemaking effort there have been significant changes in circumstances affecting New York City area airports, including changes in competitive effects from ongoing industry consolidation, slot utilization and transfer behavior, and actual operational performance at the three airports. Furthermore, the FAA recently announced that slot controls are no longer needed at EWR (81 FR 19861). The NPRM proposed an approach to manage slots and the efficient use of airspace at JFK, EWR, and LGA that would have treated all three New York City area airports similarly. In light of the changes in market conditions and operational performance, and particularly the potential impact of EWR's change in status, the Department is withdrawing the NPRM to allow for further evaluation of these changes. Withdrawal of this NPRM (80 FR 1274, January 8, 2015) does not preclude the agency from issuing future rulemakings on this issue, nor does it commit the agency to any course of action in the future. The FAA will continue to monitor the operational performance at these airports. Further, if the Department detects unfair or anticompetitive behavior, we will not hesitate to continue to use our existing authority to take corrective action. We will also continue to cooperate with the U.S. Department of Justice on any reviews it undertakes.

    Issued under authority provided by 49 U.S.C. 106(f), 40101, 40103, 40105, and 41712 in Washington, DC on May 6, 2016.

    Jenny T. Rosenberg, Acting Assistant Secretary for Aviation and International Affairs. Nan Shellabarger, Acting Assistant Administrator for Policy, International Affairs, and Environment.
    [FR Doc. 2016-11455 Filed 5-13-16; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration 21 CFR Parts 117 and 507 [Docket No. FDA-2016-D-1164] Qualified Facility Attestation Using Form FDA 3942a (for Human Food) or Form FDA 3942b (for Animal Food); Draft Guidance for Industry; Availability; Agency Information Collection Activities; Proposed Collection; Comment Request AGENCY:

    Food and Drug Administration, HHS.

    ACTION:

    Notification of availability.

    SUMMARY:

    The Food and Drug Administration (FDA, we, or Agency) is announcing the availability of a draft guidance for industry entitled “Qualified Facility Attestation Using Form FDA 3942a (for Human Food) or Form FDA 3942b (for Animal Food).” This draft guidance explains our current thinking on how to determine whether a business is a “qualified facility” that is subject to modified requirements under our rule entitled “Current Good Manufacturing Practice, Hazard Analysis, and Risk-Based Preventive Controls for Human Food” (the Preventive Controls for Human Food Rule) or under our rule entitled “Current Good Manufacturing Practice, Hazard Analysis, and Risk-Based Preventive Controls for Food for Animals” (the Preventive Controls for Animal Food Rule). This draft guidance also explains our current thinking on how a business would submit Form FDA 3942a attesting to its status as a qualified facility under the Preventive Controls for Human Food Rule and how a business would submit Form FDA 3942b attesting to its status as a qualified facility under the Preventive Controls for Animal Food Rule. We also are announcing an opportunity for public comment on the proposed collection of information embodied in Forms FDA 3942a and 3942b. Under the Paperwork Reduction Act of 1995 (PRA), Federal Agencies are required to publish notice in the Federal Register concerning each proposed collection of information and allow 60 days for public comment in response to the notice.

    DATES:

    Although you can comment on any guidance at any time (see 21 CFR 10.115(g)(5)), to ensure that we consider your comment on this draft guidance before we begin work on the final version of the guidance, submit either electronic or written comments by November 14, 2016. Submit either electronic or written comments on the proposed collection of information by July 15, 2016.

    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-2016-D-1164 for “Qualified Facility Attestation Using Form FDA 3942a (for Human Food) or Form FDA 3942b (for Animal Food).” 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 draft guidance and proposed forms to Food and Drug Administration (HFS-681), 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 draft guidance.

    FOR FURTHER INFORMATION CONTACT:

    With regard to this draft guidance for human food facility: Jenny Scott, Center for Food Safety and Applied Nutrition (HFS-300), Food and Drug Administration, 5100 Paint Branch Pkwy., College Park, MD 20740, 240-402-2166.

    With regard to this draft guidance for animal food facility: Jeannette Murphy, Center for Veterinary Medicine (HFV-200), Food and Drug Administration, 7519 Standish Pl., Rockville, MD 20855, 240-402-6246.

    With regard to this proposed collection of information: FDA PRA Staff, Office of Operations, Food and Drug Administration, 8455 Colesville Rd., COLE-14526, Silver Spring, MD 20993-0002, [email protected]

    SUPPLEMENTARY INFORMATION: I. Background

    The FDA Food Safety Modernization Act (FSMA) (Pub. L. 111-353) enables FDA to better protect public health by helping to ensure the safety and security of the food supply. It enables FDA to focus more on preventing food safety problems rather than relying primarily on reacting to problems after they occur. FSMA recognizes the important role industry plays in ensuring the safety of the food supply, including the adoption of modern systems of preventive controls in food production.

    Section 103 of FSMA amended the Federal Food, Drug, and Cosmetic Act (the FD&C Act) by adding section 418 (21 U.S.C. 350g) with requirements for hazard analysis and risk-based preventive controls for facilities that produce food for humans or animals. We have established regulations to implement these requirements within subparts C and G of the Preventive Controls for Human Food rule (21 CFR part 117) and within subparts C and E of the Preventive Controls for Animal Food Rule (21 CFR part 507). A business that meets the definition of a “qualified facility” (see 21 CFR 117.3 or 21 CFR 507.3) is subject to modified requirements in § 117.201 of the Preventive Controls for Human Food Rule or in § 507.7 of the Preventive Controls for Animal Food Rule. These modified requirements require the business to submit a form to FDA, attesting to its status as a qualified facility. Section 418(l)(2)(B)(ii) of the FD&C Act directs FDA to issue a guidance related to the documents required to be submitted to FDA to show status as a qualified facility.

    In accordance with section 418(l)(2)(B)(ii) of the FD&C Act, we are announcing the availability of a draft guidance for industry on qualified facility attestation. Section II of this draft guidance explains how to determine whether your business meets the definition of “qualified facility” under the Preventive Controls for Human Food Rule and how to submit Form FDA 3942a: Qualified Facility Attestation for Human Food Facility, attesting to its status as a qualified facility under the Preventive Controls for Human Food Rule. Section III of this draft guidance explains how to determine whether your business meets the definition of “qualified facility” under the Preventive Controls for Animal Food Rule and how to submit Form FDA 3942b: Qualified Facility Attestation for Animal Food Facility, attesting to its status as a qualified facility under the Preventive Controls for Animal Food Rule.

    Under the PRA (44 U.S.C. 3501-3520), Federal Agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. “Collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes Agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires Federal Agencies to provide a 60-day notice in the Federal Register concerning each proposed collection of information before submitting the collection to OMB for approval. To comply with this requirement, we also are publishing this notice of the proposed collection of information set forth in this document and seeking public comment.

    II. Significance of Guidance

    This level 1 draft guidance is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The draft guidance, when finalized, will represent the current thinking of FDA on Qualified Facility Attestation Using Form FDA 3942a (for Human Food) or Form FDA 3942b (for Animal Food). 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.

    III. Paperwork Reduction Act of 1995

    The draft guidance entitled “Qualified Facility Attestation Using Form FDA 3942a (for Human Food) or Form FDA 3942b (for Animal Food)” contains information collection provisions that are subject to review by the Office of Management and Budget (OMB) under the PRA (44 U.S.C. 3501-3520). A description of these provisions is given below with an estimate of the associated annual reporting burden. Included in the estimate is the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing each collection of information.

    We invite comments on: (1) Whether the proposed collection of information is necessary for the proper performance of FDA's functions, including whether the information will have practical utility; (2) the accuracy of FDA's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques, when appropriate, and other forms of information technology.

    Title: Qualified Facility Attestation Using Form FDA 3942a (for Human Food) or Form FDA 3942b (for Animal Food).

    Description: This draft guidance describes FDA procedures regarding the submission of attestations as established under both the Preventive Controls for Human Food Rule and Preventive Controls for Animal Food Rule. Proposed forms FDA 3942a and FDA 3942b have been developed for use by a business in reporting its status as a “qualified facility” under the applicable regulations.

    Description of Respondents: Respondents to the collection of information are owners, operators or agents in charge of domestic or foreign facilities that manufacture, process, pack, or hold food for human or animal consumption in the United States asserting that a facility is a “qualified facility” under applicable FDA regulations.

    We estimate the burden for this collection of information as follows:

    Table 1—Estimated Annual Reporting Burden 1 Guidance section FDA form Number of
  • respondents
  • Number of
  • responses per
  • respondent
  • Total annual responses Average burden per response Total hours
    Section II; Human Food 3942a 37,134 0.5 18,567 0.5 (30 minutes) 9,284 Section III; Animal Food 3942b 1,120 0.5 560 0.5 (30 minutes) 280 Total 9,564 1 There are no capital costs or operating and maintenance costs associated with this collection of information.

    Consistent with the estimates found in our Preventive Controls for Human Food Rule, we calculate that approximately 37,134 human food facilities will spend approximately 30 minutes (0.5 hour) reporting their status as such to FDA every 2 years. Thus, dividing this figure by 2 to determine the annual burden, we estimate there will be a total of 18,567 responses and a total of 9,284 burden hours associated with this collection element.

    Similarly, and consistent with the estimates found in our Preventive Controls for Animal Food Rule, we estimate that approximately 1,120 animal food facilities will spend approximately 30 minutes (0.5 hour) reporting their status as such to FDA every 2 years. Thus, dividing this figure by 2 to determine an annual burden, we estimate there will be a total of 560 responses and a total of 280 burden hours associated with this information collection element.

    This draft guidance also refers to previously approved collections of information found in FDA regulations. The collections of information in part 117 have been approved under OMB control number 0910-0751. The collections of information in part 507 have been approved under OMB control number 0910-0789.

    IV. Electronic Access

    Persons with access to the Internet may obtain the draft guidance, including its appendices containing instructions for filling out Forms FDA 3942a and 3942b and the proposed Forms FDA 3942a and 3942b, 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: May 10, 2016. Leslie Kux, Associate Commissioner for Policy.
    [FR Doc. 2016-11439 Filed 5-13-16; 8:45 am] BILLING CODE 4164-01-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 100 [Docket Number USCG-2016-0185] RIN 1625-AA08 Special Local Regulation; Beaufort Water Festival, Beaufort, SC AGENCY:

    Coast Guard, DHS.

    ACTION:

    Notice of proposed rulemaking.

    SUMMARY:

    The Coast Guard proposes to establish a special local regulation on the waters of the Beaufort River, Beaufort, South Carolina, during the Beaufort Water Festival on July 23, 2016. This action is necessary to ensure safety of life on navigable waters of the United States during the Beaufort Water Festival Air Show. This proposed rulemaking would prohibit persons and vessels from being in the regulated area unless authorized by the Captain of the Port Charleston or a designated representative.

    DATES:

    Comments and related material must be received by the Coast Guard on or before June 15, 2016.

    ADDRESSES:

    You may submit comments identified by docket number USCG-2016-0185 using the Federal eRulemaking Portal at http://www.regulations.gov. See the “Public Participation and Request for Comments” portion of the SUPPLEMENTARY INFORMATION section for further instructions on submitting comments.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions about this proposed rulemaking, call or email Lieutenant John Downing, Sector Charleston Office of Waterways Management, Coast Guard; telephone (843) 740-3184, email [email protected]

    SUPPLEMENTARY INFORMATION: I. Table of Abbreviations CFR Code of Federal Regulations DHS Department of Homeland Security E.O. Executive order FR Federal Register NPRM Notice of proposed rulemaking Pub. L. Public Law § Section U.S.C. United States Code COTP Captain of the Port II. Background, Purpose, and Legal Basis

    On March 3, 2016, the Coast Guard received a marine event application for the 2016 Beaufort Water Festival Air Show that will take place from noon to 5 p.m. on July 23, 2016. The purpose of the proposed rule is to ensure safety of life on the navigable waters of the United States during the Beaufort Water Festival Air Show. The legal basis for the proposed rule is the Coast Guard's Authority to establish special local regulations: 33 U.S.C. 1233.

    III. Discussion of Proposed Rule

    The COTP proposes to establish a special local regulation on the waters of the Beaufort River, Beaufort, South Carolina during the Beaufort Water Festival Air Show. The event is scheduled to take place on July 23, 2016 from noon to 5 p.m. Approximately 100 spectator vessels are expected to attend the event. Persons and vessels desiring to enter, transit through, anchor in, or remain within the regulated area may contact the Captain of the Port Charleston by telephone at (843) 740-7050, or a designated representative via VHF radio on channel 16, to request authorization. If authorization to enter, transit through, anchor in, or remain within the regulated area is granted by the Captain of the Port Charleston or a designated representative, all persons and vessels receiving such authorization must comply with the instructions of the Captain of the Port Charleston or a designated representative. The Coast Guard will provide notice of the special local regulation by Local Notice to Mariners, Broadcast Notice to Mariners, and on-scene designated representatives.

    IV. Regulatory Analyses

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

    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 NPRM has not been designated a “significant regulatory action,” under E.O. 12866. Accordingly, the NPRM has not been reviewed by the Office of Management and Budget. This proposed rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders.

    The economic impact of this proposed rule is not significant for the following reasons: (1) The special local regulations would be enforced for only five hours (2) although persons and vessels would not be able to enter, transit through, anchor, or remain within the regulated area without authorization from the Captain of the Port Charleston or a designated representative, they would be able to operate in the surrounding area during the enforcement periods; (3) persons and vessels would still be able to enter, transit through, anchor in, or remain within the regulated area if authorized by the Captain of the Port Charleston or a designated representative; and (4) the Coast Guard would provide advance notification of the regulated area to the local maritime community by Local Notice to Mariners and Broadcast Notice to Mariners.

    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” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities. We have considered the impact of this proposed rule on small entities. This rule may affect the following entities, some of which may be small entities: The owner or operators of vessels intending to enter, transit through, anchor in, or remain within the regulated area during the enforcement period. For the reasons discussed in Regulatory Planning and Review section above, this rule will not have a significant economic impact on a substantial number of small entities.

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

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

    C. Collection of Information

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

    D. Federalism and Indian Tribal Governments

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

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

    E. Unfunded Mandates Reform Act

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

    F. Environment

    We have analyzed this proposed rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This proposed rule involves special local regulation issued in conjunction with a regatta or marine parade. This rule is categorically excluded from further review under paragraph 34(h) of Figure 2-1 of the Commandant Instruction. We seek any comments or information that may lead to the discovery of a significant environmental impact from this rule.

    G. Protest Activities

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

    V. Public Participation and Request for Comments

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

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

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

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

    List of Subjects in 33 CFR Part 100

    Marine Safety, Navigation (water), Reporting and recordkeeping requirements, Waterways.

    For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 100 as follows:

    PART 100—SAFETY OF LIFE ON NAVIGABLE WATERS 1. The authority citation for part 100 continues to read as follows: Authority:

    33 U.S.C. 1233

    2. Add a temporary § 100.35T07-0185 to read as follows:
    § 100.35T07-0185 Special Local Regulations; Beaufort Water Festival, Beaufort, SC.

    (a) Regulated Area. This rule establishes a special local regulation on certain waters of the Beaufort River, Beaufort, South Carolina. The special local regulation would create a regulated area that will encompass a portion of the waterway that is 700 ft wide by 2600 ft in length on waters of the Beaufort River encompassed within the following points:

    32°25′47″ N./080°40′44″ W.,

    32°25′41″ N./080°40′14″ W.,

    32°25′35″ N./080°40′16″ W.,

    32°25′40″ N./080°40′46″ W.,

    All coordinates are North American Datum 1983.

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

    (c) Regulations.

    (1) All persons and vessels, except those participating in the Beaufort Water Festival Airshow, or serving as safety vessels, are prohibited from entering, transiting through, anchoring, or remaining within the regulated area. Persons and vessels desiring to enter, transit through, anchor in, or remain within the regulated area may contact the Captain of the Port Charleston by telephone at (843)740-7050, or a designated representative via VHF radio on channel 16, to request authorization. If authorization to enter, transit through, anchor in, or remain within the regulated area is granted by the Captain of the Port Charleston or a designated representative, all persons and vessels receiving such authorization must comply with the instructions of the Captain of the Port Charleston or a designated representative.

    (2) The Coast Guard will provide notice of the regulated area by Marine Safety Information Bulletins, Local Notice to Mariners, Broadcast Notice to Mariners, and on-scene designated representatives.

    (d) Enforcement Period. This rule will be enforced July 23, 2016 from noon until 5 p.m.

    Dated: May 6, 2016. G.L. Tomasulo, Captain, U.S. Coast Guard, Captain of the Port Charleston.
    [FR Doc. 2016-11471 Filed 5-13-16; 8:45 am] BILLING CODE 9110-04-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 58 [EPA-HQ-OAR-2015-0486, FRL-9946-34-OAR] RIN 2060-AS71 Revision to the Near-Road NO2 Minimum Monitoring Requirements AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is proposing to revise the minimum monitoring requirements for near-road nitrogen dioxide (NO2) monitoring by removing the existing requirements for near-road NO2 monitoring stations in Core Based Statistical Areas (CBSAs) having populations between 500,000 and 1,000,000 persons, that are due by January 1, 2017. Current near-road NO2 monitoring data indicate air quality levels in the near-road environment are well below the National Ambient Air Quality Standards (NAAQS) for the oxides of nitrogen. In light of this information, and due to the relationship between population, traffic, and expected NO2 concentrations in the near-road environment, it is anticipated that measured near-road NO2 concentrations in relatively smaller CBSAs (e.g., CBSAs with populations less than 1,000,000 persons) would exhibit similar, and more likely, lower concentrations, than what is being measured in larger urban areas.

    DATES:

    Comments must be received on or before June 30, 2016.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-HQ-OAR-2015-0486, at http://www.regulations.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. The EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents made outside of the primary submission (i.e., on the Web, Cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

    Instructions: Direct your comments to Docket ID No. EPA-HQ-OAR-2015-0486. The EPA's policy is that all comments received will be included in the public docket without change and may be made available online at http://www.regulations.gov, including any personal information provided, unless the comment includes information claimed to be CBI or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through http://www.regulations.gov or email. The www.regulations.gov Web site is an “anonymous access” system, which means the EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an email comment directly to the EPA without going through http://www.regulations.gov, your email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, the EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If the EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, the EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. For additional information about the EPA's public docket, visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.

    Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically at www.regulations.gov or in hard copy at the Air and Radiation Docket and Information Center, EPA/DC, EPA William J. Clinton (WJC) West Building, Room 3334, 1301 Constitution Ave. NW., Washington, DC. 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 Air and Radiation Docket and Information Center is (202) 566-1742.

    FOR FURTHER INFORMATION CONTACT:

    Mr. Nealson Watkins, Air Quality Assessment Division, Office of Air Quality Planning and Standards, U.S. Environmental Protection Agency, Mail code C304-06, Research Triangle Park, NC 27711; telephone: (919) 541-5522; fax: (919) 541-1903; email: [email protected]

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

    This action applies to state, territorial, and local air quality management programs that are responsible for ambient air quality monitoring under 40 CFR part 58. Categories and entities potentially regulated by this action include:

    Category NAICS a code State/territorial/local/tribal government 924110 a North American Industry Classification System. B. What should I consider as I prepare my comments for the EPA?

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

    2. Tips for Preparing Your Comments. When submitting comments, remember to:

    • Follow directions—The agency may ask you to respond to specific questions or organize comments by referencing a CFR part or section number.

    • Explain why you agree or disagree, suggest alternatives, and substitute language for your requested changes.

    • Describe any assumptions and provide any technical information and/or data that you used.

    • If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.

    • Provide specific examples to illustrate your concerns, and suggest alternatives.

    • Explain your views as clearly as possible, avoiding the use of profanity or personal threats.

    • Make sure to submit your comments by the comment period deadline identified.

    C. Where can I get a copy of this document?

    In addition to being available in the docket, an electronic copy of this proposed rule will also be available on the Worldwide Web (WWW) through the Technology Transfer Network (TTN). Following signature, a copy of this proposed rule will be posted on the TTN's policy and guidance page for newly proposed or promulgated rules at the following address: https://www3.epa.gov/ttnamti1/monregs.html. The TTN provides information and technology exchange in various areas of air pollution control. A redline/strikeout document comparing the proposed revisions to the appropriate sections of the current rules will be provided in the docket.

    Table of Contents

    The following topics are discussed in this preamble:

    I. Background II. Proposed Revisions to the Near-Road NO2 Minimum Monitoring Requirements III. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulations and Regulatory Review B. Paperwork Reduction Act (PRA) C. Regulatory Flexibility Act (RFA) D. Unfunded Mandates Reform Act (UMRA) E. Executive Order 13132: Federalism F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments G. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use I. National Technology Transfer and Advancement Act (NTTAA) J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations I. Background

    On February 9, 2010, the EPA promulgated minimum monitoring requirements for the ambient NO2 monitoring network in support of the revised NO2 NAAQS (75 FR 6474; February 9, 2010). The 2010 NO2 NAAQS revision included a 1-hour standard with a 98th percentile form averaged over 3 years and a level of 100 parts per billion (ppb), reflecting the maximum allowable NO2 concentration anywhere in an area, while retaining the annual standard of 53 ppb.

    As part of the 2010 NO2 NAAQS rulemaking, the EPA promulgated revisions to requirements for minimum numbers of ambient NO2 monitors which included new monitoring near major roads in larger urban areas, requirements to characterize NO2 concentrations representative of wider spatial scales in larger urban areas (area-wide monitors), and monitors intended to characterize NO2 exposures of susceptible and vulnerable populations. Specifically, the requirements for these minimum monitoring requirements that were promulgated in 2010 were as follows:

    (a) The first tier of the ambient NO2 monitoring network required near-road monitoring.1 The requirements included the placement of one near-road NO2 monitoring station in each CBSA with a population of 500,000 or more persons to monitor a location of expected maximum hourly concentrations sited near a major road. An additional near-road NO2 monitoring station was required at a second location of expected maximum hourly concentrations for any CBSA with a population of 2,500,000 or more persons, or in any CBSA with a population of 500,000 or more persons that has one or more roadway segments with 250,000 or greater Annual Average Daily Traffic (AADT) counts. Based upon 2010 census data and data maintained by the U.S. Department of Transportation Federal Highway Administration on the most heavily trafficked roads in the U.S. (http://www.fhwa.dot.gov/policyinformation/tables/02.cfm), approximately 126 near-road NO2 sites were required within 103 CBSAs nationwide at the time of rule promulgation.

    1 See 40 CFR part 58, appendix D, section 4.3.2.

    (b) The second tier of the NO2 network required area-wide NO2 monitoring,2 where area-wide means that the monitor is representative of a spatial scale of representativeness of neighborhood scale (0.5 to 4 km in dimension) or larger, as defined in 40 CFR part 58, appendix D, section 1.2. Requirements included the placement of one monitoring station in each CBSA with a population of 1,000,000 or more persons to monitor a location of expected highest NO2 concentrations representing the neighborhood or larger spatial scales. Based on 2010 census data, approximately 52 area-wide NO2 sites were required within 52 CBSAs at the time of rule promulgation.

    2 See 40 CFR part 58, appendix D, section 4.3.3.

    (c) The third tier of the NO2 minimum monitoring requirements was for the characterization of NO2 exposure for susceptible and vulnerable populations.3 The EPA Regional Administrators, in collaboration with states, required a minimum of 40 additional NO2 monitoring stations nationwide in any area, inside or outside of CBSAs, in addition to the minimum monitoring requirements for near-road and area-wide monitors with a primary focus on siting these monitors in locations with susceptible and vulnerable populations. Monitoring sites intended to satisfy these NO2 minimum monitoring requirements were required to be submitted to the EPA for approval. Per 40 CFR 58.10 and 58.13, states were required to submit a plan to the EPA for establishing required area-wide NO2 monitoring sites and those NO2 monitoring sites intended to represent areas with susceptible and vulnerable populations by July 1, 2012, and ensure that the monitoring stations were operational by January 1, 2013. State and local air monitoring agencies fulfilled the requirements for area-wide monitors and those sites representing areas with susceptible and vulnerable populations on schedule.

    3 See 40 CFR part 58, appendix D, section 4.3.4.

    The near-road component of the ambient NO2 monitoring network was also originally required to be completely operational by January 1, 2013. However, in 2012, the EPA proposed (77 FR 64244; October 19, 2012) and then finalized in 2013 (78 FR 16184; March 14, 2013), through a public notice and comment rulemaking, to require that the near-road NO2 monitoring stations be installed in three phases. The revised installation schedule allowed more time for states to establish the near-road NO2 network on a schedule consistent with available resources. The revised installation schedule for the near-road NO2 monitoring network was modified to reflect the following:

    Phase 1: In CBSAs with a population of 1,000,000 or more persons, one near-road NO2 monitor shall be reflected in the state Annual Monitoring Network Plan submitted July 1, 2013, and that monitor shall be operational by January 1, 2014.

    Phase 2: In CBSAs where two near-road NO2 monitors are required (either because the CBSA has a population of 2,500,000 or more persons, or has a population of 500,000 or more persons plus one or more roadway segments having AADT counts of 250,000 or more), the second near-road NO2 monitor shall be reflected in the state Annual Monitoring Network Plan submitted July 1, 2014, and that monitor shall be operational by January 1, 2015.

    Phase 3: In CBSAs with a population of at least 500,000 persons, but less than 1,000,000 persons, one near-road NO2 monitor shall be reflected in the state Annual Monitoring Network Plan submitted July 1, 2016, and the monitor shall be operational by January 1, 2017.

    As of April 2016, the EPA estimates that 65 near-road NO2 monitors are in operation. Tracking of near-road site meta-data indicate that state and local air monitoring agencies have successfully installed these new monitors in the appropriate locations, collectively placing monitors adjacent to highly trafficked roads in their respective CBSAs. The latest available near-road NO2 monitoring site meta-data can be found at http://www3.epa.gov/ttn/amtic/nearroad.html.

    II. Proposed Revisions to Near-Road NO2 Minimum Monitoring Requirements

    The EPA is proposing to revise the minimum monitoring requirements for near-road NO2 monitoring by removing the existing requirement for near-road NO2 monitoring stations in CBSAs having populations between 500,000 and 1,000,000 persons, also known as Phase 3 of the near-road NO2 network. This revision is based on the following key technical points:

    • The Phase 1 and Phase 2 near-road sites that have been installed to date are located at maximum concentration locations consistent with the guidance in the Near-road NO2 Monitoring Technical Assistance Document (http://www3.epa.gov/ttn/amtic/files/nearroad/NearRoadTAD.pdf) as demonstrated by a detailed examination of site meta-data.

    • The higher populated CBSAs that contain these near-road NO2 sites have higher mobile source emissions and associated indicators, such as Vehicle Miles Traveled (VMTs).

    • Ambient concentrations collected at all existing near-road monitoring sites are well below both the annual and 1-hour daily maximum NAAQS levels of 53 ppb and 100 ppb, respectively.

    Further information on each of the key points is provided below.

    The “Near-road NO2 Network and Data Analysis” docket memo (docket memo) provides a review and analysis of the characteristics of the existing near-road NO2 monitoring network and the relationships between NO2 emissions, population, traffic, and NO2 concentration data.4 First, as noted above, the existing near-road NO2 monitoring sites appropriately characterize the peak NO2 concentrations that exist in the near-road environment within their respective CBSAs based on a detailed analysis of site metadata. This is an important assertion, as having the whole of the near-road NO2 network be representative of expected peak, near-road NO2 concentration in a given CBSA allows for an equitable comparison of near-road data across CBSAs that have near-road monitors. Monitoring agencies have provided a detailed accounting of total traffic volume and fleet mix while also accounting for the available information on congestion patterns, roadway design, terrain, and meteorology that went into their site selection. For example, it is estimated that 55 percent of the near-road sites are adjacent to one of the top five highest trafficked road segments in their respective CBSA, 71 percent are adjacent to one of the top 10 most highly trafficked roads, and 91 percent are adjacent to one of the top 25 most highly trafficked roads. Further, while all sites are within the required distance of 50 meters from their respective target road, state and local air agencies were successful in placing the sites in close proximity to roadway travel lanes. The EPA estimates that 59 percent of the sites are within 20 meters from their respective target road (which was a recommended target distance in the “Near-road NO2 Monitoring Technical Assistance Document”), 87 percent are within 30 meters, and 96 percent are within 40 meters. Accordingly, the near-road monitoring network is situated to provide measurements that are a good representation of peak near-road NO2 concentrations that exist in a given CBSA.

    4 Memo to docket located in Docket #EPA-HQ-OAR-2015-0486, document 1, under “Supporting Documents.”

    Second, higher populated CBSAs have correspondingly more vehicles and vehicle miles traveled, which in turn increases the availability of mobile source emissions that lead to increased opportunity for higher NO2 concentrations, particularly in the near-road environment. This is evident upon evaluation of national VMT data available from the U.S. Department of Transportation in the State Transportation Statistics 2015 document.5 A more specific evaluation of VMT by CBSA shows a clear, positive relationship between CBSA population size and VMT. Further, more densely populated CBSAs typically have more individual roads with relatively high traffic volumes than less densely populated CBSA counterparts. Based on this relationship, the EPA notes that higher populated areas correspondingly have more vehicles, which increase the mobile source derived emissions that lead to increased opportunity for higher NO2 concentrations particularly in the near-road environment.6

    5http://www.rita.dot.gov/bts/sites/rita.dot.gov.bts/files/publications/state_transportation_statistics/state_transportation_statistics_2015/index.html.

    6 Although the particular relationship between CBSA population size and any measured or expected near-road NO2 concentrations is quite strong, the deviations from that expected relationship or trend are explainable. Near-road NO2 measured concentrations are influenced by a number of known factors such as differences in traffic volumes, fleet mixes, congestion patterns, roadway design, terrain, and meteorology, along with some influence based upon the distance of the monitor to the road and with background NO2 concentration differences. The influence of these factors is inherently part of the near-road NO2 network (as referenced in 40 CFR part 58, section 4.3.2), and the measured concentrations at every near-road NO2 site will always be influenced by any number of these factors to varying degrees in time.

    Third, the analysis of the available near-road NO2 data from sites having largely complete data in 2013 and 2014, and the 1st, 2nd, and 3rd quarters of 2015, indicate that while the larger CBSAs tend to have higher measured near-road NO2 concentrations than lesser populated CBSAs, all readings are well below the applicable NO2 NAAQS levels. This is true for both the annual and 1-hour NO2 NAAQS, although this correspondence is stronger in the longer term averages of the data (such as the annual mean) compared to the peak 1-hour values for a given time frame.

    Due to the phased implementation of the near-road NO2 network, the initiation of valid data collection varies significantly by location. Accordingly, it is more straight-forward to analyze the data by the years when monitoring commenced, recognizing that the number of operating sites and the resulting data completeness will generally increase with time.

    In 2013, four sites with sufficiently complete datasets (75 percent or greater annual completeness) were operational (Boise, ID; Des Moines, IA; Detroit, MI; and St. Louis, MO). Among these sites, the highest 98th percentile 1-hour daily max value was 50 ppb measured in the St. Louis CBSA. The highest annual mean value was 18 ppb measured in the Detroit CBSA.

    In 2014, there were 21 CBSAs with near-road data meeting 75 percent completeness criteria. The highest 98th percentile 1-hour daily max value was 70 ppb measured in the Denver CBSA. The highest annual mean value was 27 ppb measured in the Los Angeles CBSA.

    At the time of development of this proposal, 4th quarter 2015 data were not yet due to be submitted to the EPA. Using the 75 percent completeness criteria applied to the first three calendar quarters of submitted 2015 near-road NO2 data, there were 42 CBSAs with data suitable for analysis. Of these data, the highest 98th percentile 1-hour daily max value was 72 ppb measured in the New York City CBSA. The highest annual mean value was 26 ppb measured in the Denver CBSA.

    All of these data indicate that, to date, no near-road NO2 site has collected data that are above or are threatening the annual NO2 NAAQS of 53 ppb or the 100 ppb level of the 98th percentile 1-hour daily maximum value. As noted above, this is true for the larger CBSAs where the highest emissions and VMT exist.

    In light of the information presented here and in the docket memo, the EPA is reconsidering the necessity of the third phase of the near-road NO2 network. In particular, we have revisited the issue of whether the additional burden on state and local air monitoring agencies to operate Phase 3 of the near-road network is needed to provide evidence of compliance with the NO2 NAAQS in the smaller CBSAs.

    Given that measured near-road NO2 concentrations to date are not approaching the NAAQS levels, even in the most heavily populated CBSAs with monitoring stations adjacent to the most heavily traveled road segments, we have concluded that the likelihood of measuring elevated NO2 concentrations approaching or exceeding the NAAQS in smaller CBSAs is very small and, therefore, the Phase 3 requirement for near-road monitoring is no longer needed.

    The EPA notes that even with the proposed deletion of the Phase 3 near-road requirements, the authority remains for the EPA Regional Administrator to work with states to install additional near-road NO2 monitors above the minimum requirements (40 CFR part 58, section 4.3.4) in areas that may have concentrations approaching or exceeding the NAAQS. This authority provides a means for additional near-road NO2 monitors to be installed in any area, such as a CBSA with a population below 1,000,000 persons, where data or other information suggest that near-road NO2 monitoring might be warranted. Such an action could be based on research or non-regulatory data in an area, situations where an area has high background or area-wide NO2 concentrations, a desired or needed understanding of near-road NO2 concentrations and exposures, or in situations where an unusual or unique roadway related exposure to high ambient NO2 concentrations exists such as an unusually highly trafficked road segment (i.e., a road segment having greater than 250,000 AADT counts) in a relatively smaller CBSA. The EPA views this existing Regional Administrator authority as a means to ensure that near-road NO2 monitoring will continue to occur where needed, even after the proposed changes to minimum monitoring requirements.

    In summary, given the relationships between population, traffic, and expected NO2 concentrations in the near-road environment, the EPA anticipates that measured near-road NO2 concentrations in relatively smaller CBSAs (e.g., CBSAs with populations less than 1,000,000 persons) would typically exhibit similar, if not lower, concentrations than what is being measured in larger urban areas. It has also been demonstrated that the available near-road NO2 data indicate the air quality in the near-road environment is generally well below the NO2 NAAQS across the network. Accordingly, the EPA is proposing to remove the requirement to install near-road NO2 monitors in CBSAs having populations between 500,000 and 1,000,000 persons, also known as Phase 3 of the near-road NO2 network, due by January 1, 2017. This proposed action would also relieve states from being required to document the need for Phase 3 requirements in their Annual Monitoring Network Plans that are due July 1, 2016.

    The EPA also proposes to modify the requirement for a second near-road NO2 monitor in any CBSA having 500,000 or more persons that also had one or more road segments with 250,000 or greater AADT counts to only apply to CBSAs having 1,000,000 or more persons. This is necessary to align all near-road NO2 monitoring requirements language to only apply to those CBSAs having 1,000,000 persons or more. If there is a case of a relatively smaller CBSA having one or more road segments with 250,000 AADT counts or greater (of which the EPA is not aware), then the Regional Administrator's authority to require additional monitoring might be appropriate to consider and there could be an evaluation of whether monitoring is warranted.

    This proposed revision is estimated to relieve requirements for approximately 53 near-road NO2 monitors, based on 2014 Census Bureau population estimates (http://www.census.gov/population/metro/). This action would not modify the requirements for near-road NO2 monitors in CBSAs having 1,000,000 or more persons and for a second near-road monitor in CBSAs having 2,500,000 or more persons, which collectively comprise what are also known as Phase 1 and Phase 2 of the near-road NO2 network, respectively. This action also does not modify the existing requirements for area-wide NO2 monitors or monitoring of NO2 in areas with susceptible and vulnerable populations. The EPA requests comment on these proposed changes to the minimum monitoring requirements of near-road NO2 monitors.

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

    This action is not a significant regulatory action and was, therefore, not submitted to the Office of Management and Budget (OMB) for review.

    B. Paperwork Reduction Act (PRA)

    This action does not impose an information collection burden under the PRA. The proposed revisions do not add any information collection requirements beyond those imposed by the existing NO2 monitoring requirements.

    C. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. In making this determination, the impact of concern is any significant adverse economic impact on small entities. An agency may certify that a rule will not have a significant economic impact on a substantial number of small entities if the rule relieves regulatory burden, has no net burden or otherwise has a positive economic effect on the small entities subject to the rule. This action proposes to remove a sub-set of the current air monitoring requirements and, therefore, remove the requirement for the state and local air monitoring agencies to provide evidence of compliance with the NO2 NAAQS in the near-road environment in CBSAs with less than 1,000,000 persons. We have, therefore, concluded that this action will relieve regulatory burden for all directly regulated small entities.

    D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain an unfunded mandate of $100 million or more as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. This action imposes no enforceable duty on any state, local or tribal governments or the private sector. This action proposes to reduce the number of required near-road NO2 monitors to be operated by state and local air monitoring agencies.

    E. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government. In the spirit of Executive Order 13132, and consistent with the EPA policy to promote communications between the EPA and state and local governments, the EPA specifically solicits comment on this proposed rule from state and local officials.

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

    This action does not have tribal implications, as specified in Executive Order 13175. This proposed rule imposes no requirements on tribal governments. Thus, Executive Order 13175 does not apply to this action. In the spirit of Executive order 13175, the EPA specifically solicits additional comment on this proposed action from tribal officials.

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

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

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

    This action is not subject to Executive Order 13211, because it is not a significant regulatory action under Executive Order 12866.

    I. National Technology Transfer and Advancement Act (NTTAA)

    This action does not involve technical standards.

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

    The EPA believes the human health or environmental risk addressed by this action will not have potential disproportionately high and adverse human health or environmental effects on minority, low-income or indigenous populations. The results of the network and data evaluation are contained in the Near-road NO2 Network and Data Analysis docket memo, which provides a review and analysis of the characteristics of the existing near-road NO2 monitoring network and the relationships between NO2 emissions, population, traffic, and NO2 concentration data. Further, this rule does not modify the existing requirements for near-road monitors required in CBSAs having 1,000,000 or more persons, area-wide NO2 monitors, or monitoring of NO2 in areas with susceptible and vulnerable populations.

    List of Subjects 40 CFR Part 58

    Environmental protection, Administrative practice and procedure, Air pollution control, Intergovernmental relations.

    Dated: May 5, 2016. Gina McCarthy, Administrator.

    For the reasons stated in the preamble, the Environmental Protection Agency proposes to amend 40 CFR part 58 as follows:

    PART 58—AMBIENT AIR QUALITY SURVEILLANCE 1. The authority citation for part 58 continues to read as follows: Authority:

    42 U.S.C. 7403, 7405, 7410, 7414, 7601, 7611, 7614, and 7619.

    2. Amend § 58.10 by revising paragraph (a)(5)(iv) and removing paragraph (a)(5)(v) to read as follows:
    § 58.10 Annual monitoring network plan and periodic network assessment.

    (a) * * *

    (5) * * *

    (iv) A plan for establishing a second near-road NO2 monitor in any CBSA with a population of 2,500,000 persons or more, or in any CBSA with a population of 1,000,000 or more persons that has one or more roadway segments with 250,000 or greater AADT counts, in accordance with the requirements of Appendix D, section 4.3.2 to this part, shall be submitted as part of the Annual Monitoring Network Plan to the EPA Regional Administrator by July 1, 2014. The plan shall provide for these required monitors to be operational by January 1, 2015.

    3. Amend § 58.13 by revising paragraph (c)(4) and removing paragraph (c)(5) to read as follows:
    § 58.13 Monitoring network completion.

    (c) * * *

    (4) January 1, 2015, for a second near-road NO2 monitor in CBSAs that have a population of 2,500,000 or more persons or a second monitor in any CBSA with a population of 1,000,000 or more persons that has one or more roadway segments with 250,000 or greater AADT counts that is required in Appendix D, section 4.3.2 to this part.

    4. Appendix D to Part 58 is amended by revising section 4.3.2 to read as follows:

    Appendix D to Part 58—Network Design Criteria for Ambient Air Quality Monitoring 4.3.2 Requirement for Near-Road NO2 Monitors

    (a) Within the NO2 network, there must be one microscale near-road NO2 monitoring station in each CBSA with a population of 1,000,000 or more persons to monitor a location of expected maximum hourly concentrations sited near a major road with high AADT counts as specified in paragraph 4.3.2(a)(1) of this appendix. An additional near-road NO2 monitoring station is required for any CBSA with a population of 2,500,000 persons or more, or in any CBSA with a population of 1,000,000 or more persons that has one or more roadway segments with 250,000 or greater AADT counts to monitor a second location of expected maximum hourly concentrations. CBSA populations shall be based on the latest available census figures.

    (1) The near-road NO2 monitoring sites shall be selected by ranking all road segments within a CBSA by AADT and then identifying a location or locations adjacent to those highest ranked road segments, considering fleet mix, roadway design, congestion patterns, terrain, and meteorology, where maximum hourly NO2 concentrations are expected to occur and siting criteria can be met in accordance with appendix E of this part. Where a state or local air monitoring agency identifies multiple acceptable candidate sites where maximum hourly NO2 concentrations are expected to occur, the monitoring agency shall consider the potential for population exposure in the criteria utilized to select the final site location. Where one CBSA is required to have two near-road NO2 monitoring stations, the sites shall be differentiated from each other by one or more of the following factors: Fleet mix; congestion patterns; terrain; geographic area within the CBSA; or different route, interstate, or freeway designation.

    (b) Measurements at required near-road NO2 monitor sites utilizing chemiluminescence FRMs must include at a minimum: NO, NO2, and NOX.

    [FR Doc. 2016-11507 Filed 5-13-16; 8:45 am] BILLING CODE 6560-50-P
    DEPARTMENT OF TRANSPORTATION Federal Railroad Administration 49 CFR Part 218 [Docket No. FRA-2014-0033, Notice No. 2] RIN 2130-AC48 Train Crew Staffing AGENCY:

    Federal Railroad Administration (FRA), Department of Transportation (DOT).

    ACTION:

    Proposed rulemaking; extension of comment period.

    SUMMARY:

    On March 15, 2016, FRA published a Notice of Proposed Rulemaking (NPRM) that would require establishing minimum requirements for the size of train crew staffs depending on the type of operation. FRA is announcing an extension to the comment period and that it will schedule a public hearing in a future notice to provide interested persons an opportunity to comment on the proposal and to discuss further development of the regulation. When FRA schedules the public hearing in a future notice, it will also reopen the comment period for this proceeding to allow additional time for interested parties to submit written comments in response to views or information provided at the public hearing.

    DATES:

    (1) Written Comments: FRA must receive written comments on the proposed rule by June 15, 2016. FRA may consider comments received after that date if possible without incurring additional expense or delay.

    (2) FRA received a timely request for a public hearing and will publish a supplemental notice in the Federal Register to inform interested parties of the date, time, and location of that hearing when it is scheduled. When FRA issues the supplemental notice, it will also reopen the comment period for this proceeding to allow additional time for interested parties to submit written comments in response to views or information provided at the public hearing.

    ADDRESSES:

    You may submit comments identified by the docket number FRA-2014-0033 by any of the following methods:

    Online: Comments should be filed at the Federal eRulemaking Portal, http://www.regulations.gov. Follow the online instructions for submitting comments.

    Fax: 202-493-2251.

    Mail: Docket Management Facility, U.S. Department of Transportation, 1200 New Jersey Avenue SE., W12-140, Washington, DC 20590.

    Hand Delivery: Room W12-140 on the Ground level of the West Building, 1200 New Jersey Avenue SE., Washington, DC 20590 between 9 a.m. and 5 p.m., Monday through Friday, except Federal Holidays.

    Instructions: All submissions must include the agency name, docket name, and docket number or Regulatory Identification Number (RIN) for this rulemaking (RIN 2130-AC48). Note that FRA will post all comments received without change to http://www.regulations.gov, including any personal information provided. Please see the Privacy Act heading in the “Supplementary Information” section of this document for Privacy Act information about any submitted petitions, comments, or materials.

    Docket: For access to the docket to read background documents or comments received, go to http://www.regulations.gov at any time or 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, between 9 a.m. and 5 p.m., Monday through Friday, except Federal Holidays.

    FOR FURTHER INFORMATION CONTACT:

    Joseph D. Riley, Railroad Safety Specialist (OP)-Operating Crew Certification, U.S. Department of Transportation, Federal Railroad Administration, Mail Stop-25, Room W33-412, 1200 New Jersey Avenue SE., Washington, DC 20590, (202) 493-6318, or Alan H. Nagler, Senior Trial Attorney, U.S. Department of Transportation, Federal Railroad Administration, Office of Chief Counsel, RCC-10, Mail Stop 10, West Building 3rd Floor, Room W31-309, 1200 New Jersey Avenue SE., Washington, DC 20590, (202) 493-6038).

    SUPPLEMENTARY INFORMATION:

    Privacy Act

    Anyone can search the electronic form of any written communications and comments received into any of our dockets by the name of the individual submitting the comment (or signing the document, if submitted on behalf of an association, business, labor union, etc.). See http://www.regulations.gov/#!privacyNotice for the privacy notice of regulations.gov or interested parties may review DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (65 FR 19477). In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its rulemaking process. DOT posts these comments, without edit, including any personal information the commenter provides, to www.regulations.gov, as described in the system of records notice (DOT/ALL-14 FDMS), which can be reviewed at www.dot.gov/privacy.

    Issued in Washington, DC, on May 11, 2016, under the authority set forth in 49 CFR 1.89(b). Sarah E. Feinberg, Administrator.
    [FR Doc. 2016-11491 Filed 5-13-16; 8:45 am] BILLING CODE 4910-06-P
    DEPARTMENT OF TRANSPORATION Surface Transportation Board 49 CFR Parts 1108 and 1115 [Docket No. EP 730] Revisions to Arbitration Procedures AGENCY:

    Surface Transportation Board.

    ACTION:

    Notice of proposed rulemaking.

    SUMMARY:

    The Surface Transportation Board (Board or STB) is proposing to amend its arbitration procedures to conform to the requirements of the Surface Transportation Board Reauthorization Act of 2015.

    DATES:

    Comments are due by June 13, 2016. Replies are due by July 1, 2016.

    ADDRESSES:

    Comments on this proposal 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 730, 395 E Street SW., Washington, DC 20423-0001. Copies of written comments 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. Information or questions regarding this proposed rule should reference Docket No. EP 730 and be in writing addressed to: Chief, Section of Administration, Office of Proceedings, Surface Transportation Board, 395 E Street SW., Washington, DC 20423-0001.

    FOR FURTHER INFORMATION CONTACT:

    Amy C. Ziehm at 202-245-0391. [Assistance for the hearing impaired is available through the Federal Information Relay Service (FIRS) at 1800-877-8339.]

    SUPPLEMENTARY INFORMATION:

    Under Section 13 of the STB Reauthorization Act (codified at 49 U.S.C. 11708), the Board must “promulgate regulations to establish a voluntary and binding arbitration process to resolve rail rate and practice complaints” that are subject to the Board's jurisdiction. Section 11708 sets forth specific requirements and procedures for the Board's arbitration process. While the Board's existing arbitration regulations are for the most part consistent with the new statutory provisions, certain changes are needed so that the Board's regulations conform to the requirements under § 11708.1 Accordingly, the Board is proposing to modify its existing arbitration regulations, set forth at 49 CFR 1108 and 1115.8, to conform to the provisions set forth by the statute and to make other minor clarifying changes. The most significant changes in these proposed rules are discussed below.

    1 In Assessment of Mediation & Arbitration Procedures, EP 699 (STB served May 13, 2013), the Board adopted new rules governing the use of mediation and arbitration to resolve matters before the Board. The rules established a new arbitration program under which shippers and carriers may voluntarily agree in advance to arbitrate certain disputes with clearly defined limits of liability.

    Eligible Matters. Under section 11708(b), rate disputes (i.e., disputes involving the reasonableness of a rail carrier's rates) are eligible for arbitration. Accordingly, rate disputes would now be added to the list of matters that are eligible for arbitration under the arbitration program, which currently includes disputes relating to demurrage; accessorial charges; misrouting or mishandling of rail cars; and disputes involving a carrier's published rules and practices as applied to particular rail transportation. The rules would continue to allow parties to agree to arbitrate most other matters on a case-by-case basis, subject to some exceptions. See 49 CFR 1108.4(e). Specifically, the current rules expressly prohibit use of the Board's arbitration process to enforce labor protective conditions; to obtain the grant, denial, stay, or revocation of any license, authorization (e.g., construction, abandonment, purchase, trackage rights, merger, pooling), or exemption related to such matters; and to arbitrate matters outside the statutory jurisdiction of the Board. 49 CFR 1108.2(b). In accordance with section 11708(b)(2), two additional matters would be added to the list of matters not eligible for arbitration: Disputes to prescribe for the future any conduct, rules, or results of general, industry-wide applicability; and disputes that are solely between two or more rail carriers.

    Rate Disputes. For rate disputes, arbitration is available to the relevant parties only if the rail carrier has market dominance (as determined under 49 U.S.C. 10707). Section 11708(c)(1)(C).2 Section 10707 states that “the Board shall determine whether the rail carrier proposing the rate has market dominance over the transportation to which the rate applies,” and it defines market dominance as “an absence of effective competition from other rail carriers or modes of transportation for the transportation to which a rate applies.” Section 10707(a), (b). For this reason, as discussed below, the Board proposes a separate timetable for initiating arbitration in rate cases. Nevertheless, the Board recognizes that making arbitration available only after it determines that a rail carrier has market dominance—as required by the statute—may significantly delay the arbitration process. Given that the arbitration process is voluntarily entered into by parties, the Board seeks comment on whether parties should be given the option to concede market dominance when agreeing to arbitrate a rate dispute (thereby forgoing the need for a determination from the Board) or, alternatively, whether the Board should limit the availability of the arbitration process in rate disputes to cases where market dominance is conceded. In addition, the Board seeks comments on other possible approaches that would help facilitate the commencement of arbitrating a rate dispute, given the need to make a market dominance determination under section 10707.

    2 Additionally, section 11708(c)(3) requires arbitrator(s) handling rate disputes to “consider the Board's methodologies for setting maximum lawful rates, giving due consideration to the need for differential pricing to permit a rail carrier to collect adequate revenues (as determined under § 10704(a)(2)).”

    Arbitration Commencement Procedures. The Board's current regulations are consistent with section 11708(c), which makes the arbitration process available only after the Board receives written consent to arbitrate from all relevant parties and after the filing of a written complaint.3 Under the statute, in lieu of a written complaint, the arbitration process also may be made available “through other procedures adopted by the Board in a rulemaking proceeding.” Section 11708(c)(1)(B)(ii)(II). To encourage greater use of arbitration to resolve disputes, the Board proposes here that, as an alternative to filing a written complaint, parties may submit a joint notice to the Board, indicating the consent of both parties to submit an issue in dispute to the Board's arbitration program.4 The joint notice would allow parties to utilize the arbitration process, even if the dispute is not pending before the Board (assuming that the other criteria for arbitration are met). In the joint notice, parties would state the issue(s) that they are willing to submit to arbitration. The notice would contain a statement that would indicate that all relevant parties are participants in the Board's arbitration program pursuant to § 1108.3(a), or, if they are not participants, that they are nonetheless willing to voluntarily arbitrate a matter pursuant to the Board's arbitration procedures. The notice would indicate whether parties have agreed to a three-member arbitration panel or a single arbitrator (discussed in more detail below). The notice would also indicate the relief requested and whether the parties have mutually agreed to a lower amount of potential liability in lieu of the monetary award cap that would otherwise be applicable.

    3 Under 49 CFR 1108.5, arbitration commences with a written complaint that contains a statement that the relevant parties are participants in the Board's arbitration program, or that the complainant is willing to arbitrate the dispute pursuant to the Board's arbitration procedures. The respondent's answer to the written complaint must then indicate the respondent's participation in the Board's arbitration program or its willingness to arbitrate the dispute at hand pursuant to the Board's arbitration procedures.

    4 These proposed rules seek to expand, not replace, the current rules set forth at 49 CFR 1180.3 that govern the Board's arbitration program, under which shippers and carriers may voluntarily agree in advance to arbitrate certain disputes.

    Monetary Relief Available. In accordance with section 11708(g), the maximum amount of relief that could be awarded under the arbitration program, which is currently capped at $200,000, would be raised to $25,000,000 in rate disputes and $2,000,000 in practice disputes (i.e., disputes involving demurrage; accessorial charges; misrouting or mishandling of rail cars; and disputes involving a carrier's published rules and practices as applied to particular rail transportation). The $2,000,000 monetary award cap would also apply to other disputes that parties seek to arbitrate under § 1180.4(e) that are not specifically listed as arbitration-eligible matters (yet also not expressly prohibited). The proposed rules would allow parties to mutually agree to a lower monetary award cap.

    Arbitrator Roster. Section 11708(f) provides that, unless parties otherwise agree, an arbitrator or panel of arbitrators shall be selected from a roster maintained by the Board. Therefore, we propose rules to establish a process for creating and maintaining a roster of arbitrators and selecting arbitrators from the roster in accordance with the statutory requirements.5

    5 Under our current rules, parties select arbitrators from a list of five neutral arbitrators compiled by the Board for a particular arbitration proceeding. These proposed rules replace the selection process with the process set forth at section 11708(f).

    Creating and Maintaining the Roster. The Board proposes that an initial roster be compiled by the Chairman, who would seek notice from all interested, qualified persons, as described below, who wish to be placed on the Board's arbitration roster. Under the proposed rules, the Chairman could augment the roster at any time to include other eligible arbitrators and remove from the roster any arbitrators who are no longer available or eligible. The roster would be made available on the Board's Web site. To ensure that the roster remains current, the Chairman would update it every year, seeking public comment on any modifications that should be made to the roster, including updates from arbitrators appearing on the roster to confirm that the biographical information on the file with the Board (as discussed below) remains accurate. Arbitrators who wish to remain on the roster would be required to notify the Board of their continued availability.

    Arbitrator Qualifications. Under section 11708(f)(1), arbitrators on the roster must be “persons with rail transportation, economic regulation, professional or business experience, including agriculture, in the private sector.” Additionally, under the proposed rules, persons seeking to be included on the roster would be required to have training in dispute resolution and/or experience in arbitration or other forms of dispute resolution. The Chairman shall have discretion as to whether an individual meets the qualifications to be added to the roster. The Board's roster would provide a brief biographical sketch of each arbitrator, including information such as background, experience, and geographical location, as well as general contact information, based on the information supplied by the arbitrator.

    The Parties' Selection of Arbitrators. In accordance with section 11708(f)(3)(A), we are proposing revisions to our arbitrator selection process so that, if parties cannot mutually agree on a single arbitrator or lead arbitrator of a panel of arbitrators, the parties would select the single or lead arbitrator from the roster maintained by the Board by alternately striking names from the roster until only one name remains.6

    6 Under the Board's current regulations, a panel of three arbitrators resolves all matters unless parties mutually agree to use a single arbitrator. 49 CFR 1108.6(a).

    To make the strike process more practicable and efficient, we propose that the Board, through the Director of the Office of Proceedings, would provide parties a list of arbitrators culled from the Board's roster. This culled list would include not more than 15 arbitrators to limit the number of strikes each party would have to make. In culling the list, the Board would consider a variety of factors, including relevant background and experience, acceptability, geographical location, and any expressed preferences of the parties. The culled list would have an odd number of arbitrators to ensure that parties have the same number of strikes.

    To select the other members for a panel of arbitrators, these rules propose that each party to the dispute would select one additional arbitrator from the roster, regardless of whether the selected arbitrator was included in the culled list or struck from the culled list by another party. See section 11708(f)(3)(B).

    These proposed rules also provide that parties share the costs incurred by the Board and arbitrators equally, with each party responsible for paying its own legal and other associated arbitration costs, in accordance with section 11708(f)(4).7

    7 This rule would replace the current method of cost allotment under 49 CFR 1108.6 and 1108.12.

    Arbitration Decisions. These rules propose to modify our current regulations regarding arbitration decisions. In accordance with section 11708(d), an arbitration decision would: (1) Be consistent with sound principles of rail regulation economics; (2) be in writing; (3) contain findings of facts and conclusions; (4) be binding upon the parties; and (5) not have any precedential effect in any other or subsequent arbitration disputes.

    In accordance with section 11708(h), if a party appeals an arbitral decision, the Board would review the decision to determine if: (1) The decision is consistent with sound principles of rail regulation economics; (2) a clear abuse of arbitral authority or discretion occurred; (3) the decision directly contravenes statutory authority; or (4) the award limitation was violated.8

    8 As discussed below, in Assessment of Mediation & Arbitration Procedures, the Board amended the standard of review for arbitration decisions set forth at 49 CFR 1115.8 and inadvertently omitted the standard of review for labor arbitration cases. This decision addresses that omission.

    Initiation of the Arbitration Process and Timelines. Under section 11708(e), deadlines for the selection of arbitrators, the close of the evidentiary process, and the arbitration decision are calculated from the date the Board “initiate[s] . . . the arbitration process,” which would occur “not later than 40 days after the date on which a written complaint is filed or through other procedures adopted by the Board in a rulemaking proceeding.” Section 11708(c)(1)(D). Specifically, arbitrators must be selected not later than 14 days after the Board decides to initiate the arbitration process. The evidentiary process must be completed not later than 90 days after the date on which the arbitration process is initiated. An arbitration decision must be issued not later than 30 days after the date on which the evidentiary period is closed.

    Accordingly, with the exception of rate dispute proceedings, these proposed rules provide that the Board would issue a decision to initiate the arbitration process within 40 days after submission of a written complaint, or the joint notice described above. In rate dispute proceedings, the Board must determine if the rail carrier has market dominance before making the arbitration process available. 49 U.S.C 11708(c)(1)(C). Such a determination would likely require substantial additional time in cases where market dominance is contested. Accordingly, these rules propose that, unless the comments offer persuasive reasons to exclude from the arbitration program rate cases where market dominance is contested, the Board would initiate the arbitration process within 10 days after the Board issues a decision determining that the rail carrier in a rate dispute has market dominance.

    After the Board initiates the arbitration process, if parties cannot mutually agree on an arbitrator or lead arbitrator of a panel of arbitrators, the Board would then provide parties with a list of arbitrators within seven days of initiating the arbitration process. Parties would then have seven days to select an arbitrator or panel of arbitrators. Section 11708(e)(1). In accordance with section 11708(e)(2), parties would have 90 days from the initiation date to conclude the evidentiary process, unless a party requests an extension, and the arbitrator or panel of arbitrators, as applicable, grants the extension request. The lead or single arbitrator would then have 30 days from the close of the evidentiary process to issue the decision. Section 11708(e)(3).

    In accordance with section 11708(e)(4), these proposed rules provide that the Board may extend any portion of the timetable upon agreement of all parties in the dispute, thus providing more flexibility than our rules currently allow.9

    9 This replaces the current regulation at 49 CFR 1108.7(c), which provides that petitions to extend the timetable will only be considered in cases of arbitrator incapacitation.

    Other Matters. In adopting final rules in Assessment of Mediation & Arbitration Procedures, the Board inadvertently omitted the standard of review for labor arbitration cases in 49 CFR 1115.8. It was not the intention of the Board to alter the standard of review for labor arbitration cases. The narrow standard articulated in the final rules, and codified at 49 CFR 1108.11(b), was intended to apply solely to reviews of arbitral decisions brought under 49 CFR pt. 1108.10 The standard of review articulated in the final rules was not intended to replace the Board's standard of review in labor arbitration cases, which was previously codified at 49 CFR 1115.8. In adopting the new arbitration program, § 1115.8 should have reflected both the standard of review for arbitrations conducted pursuant to 49 CFR pt. 1108 and the standard of review for labor arbitration cases. This decision corrects that omission.

    10 In the final rules, the Board adopted a standard of review of arbitral decisions made under 49 CFR pt. 1108. The Board stated that, upon petition by one or more parties to the arbitration, the Board reserves the right to review, modify, or vacate any arbitration award. The final rules clarify that the Board will apply a narrow standard of review, but which is somewhat broader than originally proposed, and will grant relief only on grounds that the award reflects a clear abuse of arbitral authority or discretion, or directly contravenes statutory authority.

    Assessment of Mediation & Arbitration Procedures, EP 699, slip op. at 17 (STB served May. 13, 2013); see 49 CFR 1108.11(b).

    The proposed rules, which would govern arbitration in Board proceedings, are set forth below.

    Conclusion

    Regulatory Flexibility Act. The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, generally requires a description and analysis of rules that would have significant economic impact on a substantial number of small entities. In drafting rules an agency is required to: (1) Assess the effect that its regulation would have on small entities; (2) analyze effective alternatives that might minimize a regulation's impact; and (3) make the analysis available for public comment. 5 U.S.C. 601-604. In its notice of proposed rulemaking, the agency must either include an initial regulatory flexibility analysis, 5 U.S.C. 603(a), or certify that the proposed rules will not have a “significant impact on a substantial number of small entities,” 5 U.S.C. 605(b). The impact must be a direct impact on small entities “whose conduct is circumscribed or mandated” by the proposed rules. White Eagle Coop. Ass'n v. Conner, 553 F.3d 467, 480 (7th Cir. 2009).

    The Board certifies under 5 U.S.C. 605(b) that these proposed rules, if promulgated, will not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act. The proposed rules, if promulgated, would amend the existing procedures for arbitrating disputes before the Board so that the Board's regulations conform to the statutory requirements under 49 U.S.C. 11708.

    Although some carriers and shippers impacted by the proposed rules may qualify as a “small business” within the meaning of 5 U.S.C. 601(3), we do not anticipate that our revised arbitration procedures would have a significant economic impact on a large number of small entities. To the extent that the rules have any impact, it would be to provide faster resolution of a controversy at a lower cost. The relief that could be accorded by an arbitrator would presumably be similar to the relief shippers could obtain through use of the Board's existing formal adjudicatory procedures, and at a greater net value considering that the arbitration process is designed to consume less time and likely will be less costly. Therefore, we do not believe that a substantial number of small entities would be significantly impacted.

    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 about each of the proposed collections regarding: (1) Whether the collection of information, as modified in the proposed rule and further described below, 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 in the Appendix. This proposed rule will be submitted to OMB for review as required under 44 U.S.C. 3507(d) and 5 CFR 1320.11. Comments received by the Board regarding the information collection will also be forwarded to OMB for its review when the final rule is published.

    List of Subjects 49 CFR Part 1108

    Administrative practice and procedure, Railroads.

    49 CFR Part 1115

    Administrative practice and procedure.

    It is ordered:

    1. The Board proposes to amend its rules as set forth in this decision. Notice of the proposed rules will be published in the Federal Register.

    2. Comments regarding the proposed rules are due by June 13, 2016. Replies are due by July 1, 2016.

    3. This decision is effective on the day of service.

    By the Board, Chairman Elliott, Vice Chairman Miller, and Commissioner Begeman.

    Decided: May 6, 2016. Jeffrey Herzig, Clearance Clerk.

    For the reasons set forth in the preamble, under the authority of 49 U.S.C. 1321, title 49, chapter X, parts 1108 and 1115 of the Code of Federal Regulations are proposed to be amended as follows:

    PART 1108—ARBITRATION OF CERTAIN DISPUTES SUBJECT TO THE STATUTORY JURISDICTION OF THE SURFACE TRANSPORTATION BOARD 1. Revise the authority citation for part 1108 to read as follows: Authority:

    49 U.S.C. 11708, 49 U.S.C. 1321(a) and 5 U.S.C. 571 et seq.

    2. Amend § 1108.1, as follows: a. In paragraph (b) add the words “from the roster” after the word “selected” and remove the word “neutral” and add in its place “lead”. b. In paragraph (d) add the word “rates,” after “subjects:”. c. In paragraph (g) add the words “and the Surface Transportation Board Reauthorization Act of 2015,” after “1995”. d. Revise paragraphs (h) and (i). e. Redesignate paragraphs (j) and (k) as paragraphs (k) and (l). f. Revise newly redesignated paragraph (k). g. Add paragraph (m).

    The revisions and addition read as follows:

    § 1108.1 Definitions.

    (h) Lead arbitrator or single arbitrator means the arbitrator selected by the strike methodology outlined in § 1108.6(c).

    (i) Monetary award cap means a limit on awardable damages of $25,000,000 in rate disputes, including any rate prescription, and $2,000,000 in practice disputes, unless the parties mutually agree to a lower award cap. If parties bring one or more counterclaims, such counterclaims will be subject to a separate monetary award cap.

    (k) Practice disputes are disputes involving demurrage; accessorial charges; misrouting or mishandling of rail cars; and disputes involving a carrier's published rules and practices as applied to particular rail transportation.

    (m) Rate disputes are disputes involving the reasonableness of a rail carrier's rates.

    3. Amend § 1108.2, as follows: a. In paragraph (a) introductory text remove “$200,000” and add in its place “$25,000,000 in rate disputes, including any rate prescription, and $2,000,000 in other disputes” and remove the word “different” and add in its place “lower”. b. In paragraph (a)(1) remove the word “different” and add in its place “lower”. c. Revise paragraph (b) to read as follows:
    § 1108.2 Statement of purpose, organization, and jurisdiction.

    (b) Limitations to the Board's Arbitration Program. These procedures shall not be available:

    (1) To resolve disputes involving labor protective conditions;

    (2) To obtain the grant, denial, stay or revocation of any license, authorization (e.g., construction, abandonment, purchase, trackage rights, merger, pooling), or exemption related to such matters;

    (3) To prescribe for the future any conduct, rules, or results of general, industry-wide applicability;

    (4) To resolve disputes that are solely between two or more rail carriers.

    Parties may only use these arbitration procedures to arbitrate matters within the statutory jurisdiction of the Board.

    4. Amend § 1108.3 as follows: a. In paragraph (a) introductory text remove the word “either”. b. In paragraph (a)(1)(ii) remove the words “different monetary award cap” and add in their place “lower monetary award cap than the monetary award caps provided in this part.” c. Revise paragraph (a)(2). d. Remove paragraph (a)(2)(i). e. Add paragraph (a)(3). f. In paragraph (b), add “itself” after “not” and remove “within that” and add in its place “prior to the end of the”. g. In paragraph (c), remove “on a case-by-case basis” and add in its place “only for a particular dispute”.

    The revision and addition read as follows:

    § 1108.3 Participation in the Board's arbitration program.

    (a) * * *

    (2) Participants to a proceeding, where one or both parties have not opted into the arbitration program, may by joint notice agree to submit an issue in dispute to the Board's arbitration program. The joint notice must clearly state the issue(s) which the parties are willing to submit to arbitration and the corresponding maximum monetary award cap if the parties desire to arbitrate for a lower amount than the monetary award cap that would otherwise be applicable.

    (3) Parties to a dispute may jointly notify the Board that they agree to submit an eligible matter in dispute to the Board's arbitration program, where no formal proceeding has begun before the Board. The joint notice must clearly state the issue(s) which the parties are willing to submit to arbitration and the corresponding maximum monetary award cap if the parties desire to arbitrate for a lower amount than the applicable monetary award cap.

    5. Amend § 1108.4 as follows: a. In paragraph (a) add “rates,” before the word “demurrage”. b. In paragraph (b) introductory text remove “may not exceed” and add in its place “will be subject to” and remove “$200,000” and add in its place “$25,000,000, including any rate prescription,” and remove “arbitral proceeding” and add in its place “rate dispute and $2,000,000 per practice dispute”. c. In paragraph (b)(1) remove the word “different” and add in its place “lower”. d. In paragraph (b)(2) remove the word “different” and add in its place “lower”. e. In paragraph (b)(3) remove “$200,000” and add in its place “$25,000,000, including any rate prescription,”; remove “case” and add in its place “rate dispute and $2,000,000 per practice dispute”; and remove “different” and add in its place “lower”. f. In paragraph (c) remove the words “arising in a docketed proceeding” and add “for a particular dispute” after “consent to arbitration”. g. Amend paragraph (e) by adding a new sentence after the second sentence and remove “which” and add in its place “that”. h. Add paragraph (g).

    The revision and addition read as follows:

    § 1108.4 Use of arbitration.

    (e) * * * Such disputes are subject to a monetary award cap of $2,000,000 or to a lower cap agreed upon by the parties in accordance with paragraph (b)(2) of this section.

    (g) Rate disputes. Arbitration of rate disputes will only be available to parties if the rail carrier has market dominance as determined by the Board under 49 U.S.C. 10707. In rate disputes, the arbitrator or panel of arbitrators, as applicable, shall consider the Board's methodologies for setting maximum lawful rates, giving due consideration to the need for differential pricing to permit a rail carrier to collect adequate revenues (as determined under 49 U.S.C. 11704(a)(2)).

    6. Amend § 1108.5 as follows: a. In paragraph (a) introductory text, add “Except as provided in paragraph (e) of this section,” to the beginning of the first sentence, and remove “Arbitration” and add in its place “arbitration”. b. In paragraph (a)(1) remove the word “single-neutral” and add in its place “single”. c. In paragraph (a)(3) remove the word “different” and add in its place “lower” and remove “$200,000” and add “that would otherwise apply” after “cap”. d. In paragraph (b)(1) remove the word “single-neutral” and add in its place “single” wherever it appears. e. In paragraph (b)(1) introductory text, remove the words “the request” and add in their place “that request”. f. In paragraph (b)(1)(i) remove the word “single-neutral” and add in its place “single”. g. In paragraph (b)(1)(ii) remove the word “single-neutral” and add in its place “single” wherever it appears and remove “§ 1108.6(a)-(c)” and add in its place “§ 1108.6(a)-(d)” and remove the word “matter” and add in its place “case” and add “by the Board” after “adjudication”. h. Revise paragraph (b)(2). i. In paragraph (b)(3) remove the word “different” and add in its place “lower” and remove “$200,000” and add in its place “ otherwise applicable”. j. Revise paragraph (e). j. Add paragraphs (f) and (g).

    The revisions and additions are as follows:

    § 1108.5 Arbitration commencement procedures.

    (b) * * *

    (2) When the complaint limits the arbitrable issues, the answer must state whether the respondent agrees to those limitations or, if the respondent is already a participant in the Board's arbitration program, whether those limitations are consistent with the respondent's opt-in notice filed with the Board pursuant to § 1108.3(a)(1)(i). If the answer contains an agreement to arbitrate some but not all of the arbitration-program-eligible issues in the complaint, the complainant will have 10 days from the date of the answer to advise the respondent and the Board in writing whether the complainant is willing to arbitrate on that basis.

    (e) Jointly-filed notice. In lieu of a formal complaint proceeding, arbitration under these rules may commence with a jointly-filed notice by parties agreeing to submit an eligible matter in dispute to the Board's arbitration program under § 1108.3(a)(3). The notice must:

    (1) Contain a statement that all relevant parties are participants in the Board's arbitration program pursuant to § 1108.3(a), or that the relevant parties are willing to arbitrate voluntarily a matter pursuant to the Board's arbitration procedures, and the relief requested;

    (2) Indicate whether parties have agreed to a three-member arbitration panel or a single arbitrator;

    (3) Indicate if the parties have agreed to a lower amount of potential liability in lieu of the otherwise applicable monetary award cap.

    (f) Arbitration initiation. When the parties have agreed upon whether to use a single arbitrator or a panel of arbitrators, the issues(s) to be arbitrated, and the monetary limit to any arbitral decision, the Board shall initiate the arbitration under § 1108.7(a) and provide a list of arbitrators as described in § 1108.6.

    (g) Arbitration agreement. Shortly after the panel of arbitrators or arbitrator is selected, the parties to arbitration together with the lead or single arbitrator, as applicable, shall create a written arbitration agreement, which at a minimum will state with specificity the issues to be arbitrated and the corresponding monetary award cap to which the parties have agreed. The agreement may also contain other mutually agreed upon provisions.

    (1) Any additional issues selected for arbitration by the parties, that are not outside the scope of these arbitration rules as explained in § 1108.2(b), must be subject to the Board's statutory authority.

    (2) These rules shall be incorporated by reference into any arbitration agreement conducted pursuant to an arbitration complaint filed with the Board.

    7. Amend § 1108.6 as follows: a. In paragraph (a), remove “§ 1108.5(a)(1)” and add in its place “§ 1108.5(a)(1) and agreed to by all parties to the arbitration”. b. Revise paragraph (b). c. Revise paragraph (c) introductory text. d. In paragraph (c)(1) remove the word “neutral” wherever it appears and in the second sentence add “lead” in its place. e. Revise paragraph (c)(2). f. Remove paragraph (c)(3). g. Revise paragraph (d). h. Redesignate paragraph (e) as paragraph (f). i. Add a new paragraph (e). j. In newly redesignated paragraph (f)(1) remove “§ 1108.6(b)” and add in its place “§ 1108.6(d)”. k. Revise newly redesignated paragraph (f)(2).

    The revisions read as follows:

    § 1108.6 Arbitrators.

    (b) Roster. Arbitration shall be conducted by an arbitrator (or panel of arbitrators) selected, as provided herein, from a roster of persons with rail transportation, economic regulation, professional or business experience, including agriculture, in the private sector. Persons seeking to be included on the roster must have training in dispute resolution and/or experience in arbitration or other forms of dispute resolution. The initial roster of arbitrators shall be established and maintained by the Chairman of the STB, who may augment the roster at any time to include other eligible arbitrators and may remove from the roster any arbitrators who are no longer available. The Board's roster will provide a brief biographical sketch of each arbitrator, including information such as background, experience, and geographical location, as well as general contact information, based on the information supplied by the arbitrator. The roster shall be published on the Board's Web site. The Chairman will update the roster every year. The Chairman will seek public comment on any modifications that should be made to the roster, including requesting the names and qualifications of new arbitrators who wish to be placed on the roster, and updates from arbitrators appearing on the roster to confirm that the biographical information on file with the Board remains accurate. Arbitrators who wish to remain on the roster must notify the Board of their continued availability.

    (c) Selecting the lead arbitrator. If the parties cannot mutually agree on a lead arbitrator for a panel of arbitrators, the Board, through the Director of the Office of Proceedings, shall provide the parties with a list of not more than 15 arbitrators selected from the Board's roster within seven days of the Board initiating the arbitration process. When compiling a list of arbitrators for a particular arbitration proceeding, the Board will consider a variety of factors, including relevant background and experience, likely acceptability, geographical location, and any expressed preferences of the parties. The parties will have seven days from the date the Board provides them with this list to select a lead arbitrator using a single strike methodology. The list will have an odd number of arbitrators to ensure that parties have the same number of strikes. The complainant will strike one name from the list first. The respondent will then have the opportunity to strike one name from the list. The process will then repeat until one individual on the list remains, who shall be the lead arbitrator.

    (c) * * *

    (2) The lead arbitrator appointed through the strike methodology shall serve as the head of the arbitration panel and will be responsible for ensuring that the tasks detailed in §§ 1108.7 and 1108.9 are accomplished.

    (d) Party-appointed arbitrators. The party or parties on each side of an arbitration dispute shall select one arbitrator from the roster, regardless of whether the arbitrator's name appears on the list of 15 potential lead arbitrators and regardless of whether the other party struck the arbitrator's name in selecting a lead arbitrator. The party or parties on each side will have seven days from the date the Board provides them with the list described in paragraph (c) of this section to appoint that side's own arbitrator. Parties on one side of an arbitration proceeding may not challenge the arbitrator selected by the opposing side.

    (e) Use of a single arbitrator. Parties to arbitration may request the use of a single arbitrator. Requests for use of a single arbitrator must be included in a complaint or an answer as required in § 1108.5(a)(1), or in the joint notice filed under § 1108.5(e). Parties to both sides of an arbitration dispute must agree to the use of a single arbitrator in writing. If the single-arbitrator option is selected, and if parties cannot mutually agree on a single arbitrator, the arbitrator selection procedures outlined in paragraph (c) of this section shall apply.

    (f) * * *

    (2) If the incapacitated arbitrator was the lead or single arbitrator, the parties shall promptly inform the Board of the arbitrator's incapacitation and the selection procedures set forth in paragraph (c) of this section shall apply.

    8. Revise § 1108.7 to read as follows:
    § 1108.7 Arbitration procedures.

    (a) Initiation. With the exception of rate dispute arbitration proceedings, the Board shall initiate the arbitration process within 40 days after submission of a written complaint or joint notice filed under § 1108.5(e). In arbitrations involving rate disputes, the Board shall initiate the arbitration process within 10 days after the Board issues a decision determining that the rail carrier has market dominance.

    (b) Arbitration evidentiary phase timetable. Whether the parties select a single arbitrator or a panel of three arbitrators, the lead or single arbitrator shall establish all rules deemed necessary for each arbitration proceeding, including with regard to discovery, the submission of evidence, and the treatment of confidential information, subject to the requirement that this evidentiary phase shall be completed within 90 days from the date on which the arbitration process is initiated, unless a party requests an extension, and the arbitrator or panel of arbitrators, as applicable, grants such extension request.

    (c) Written decision timetable. The lead or single arbitrator will be responsible for writing the arbitration decision. The unredacted arbitration decision must be served on the parties within 30 days of completion of the evidentiary phase. A redacted copy of the arbitration decision must be served upon the Board within 60 days of the close of the evidentiary phase for publication on the Board's Web site.

    (d) Extensions to the arbitration timetable. The Board may extend any deadlines in the arbitration timetable provided in this part upon agreement of all parties to the dispute.

    (e) Protective orders. Any party, on either side of an arbitration proceeding, may request that discovery and the submission of evidence be conducted pursuant to a standard protective order agreement.

    § 1108.9 Decisions.
    9. Amend § 1108.9 as follows: a. Revise paragraph (a). b. In paragraph (b) remove the word “neutral” and add in its place “lead or single”. c. In paragraph (d) remove the heading “Neutral arbitrator authority” and add in its place “Lead or single arbitrator authority” and remove the word “neutral” from the first sentence and add in its place “lead or single” and add “, if any,” after “what”. d. In paragraph (e) remove the word “neutral” wherever it appears and add in its places “lead or single” and remove “§ 1108.7(b)” and add in its place “§ 1108.7(c)”. e. In paragraph (f) remove the word “neutral” and add in its place “lead or single”.

    The revision reads as follows:

    § 1108.9 Decisions.

    (a) Decision requirements. Whether by a panel of arbitrators or a single arbitrator, all arbitration decisions shall be in writing and shall contain findings of fact and conclusions of law. All arbitration decisions must be consistent with sound principles of rail regulation economics. The arbitrator shall provide an unredacted draft of the arbitration decision to the parties to the dispute, in accordance with § 1108.7.

    10. Amend § 1108.11 by revising paragraph (b) introductory text to read as follows.
    § 1108.11 Enforcement and appeals.

    (b) Board's standard of review. On appeal, the Board's standard of review of arbitration decisions will be narrow. The Board will review a decision to determine if the decision is consistent with sound principles of rail regulation economics, a clear abuse of arbitral authority or discretion occurred; the decision directly contravenes statutory authority; or the award limitation was violated. Using this standard, the Board may modify or vacate an arbitration award in whole or in part.

    11. Amend § 1108.12 as follows: a. Revise paragraph (b). b. Remove paragraphs (c) and (d).
    § 1108.12 Fees and costs.

    (b) Costs. The parties shall share the costs incurred by the Board and arbitrators equally, with each party responsible for paying its own legal and other associated arbitration costs.

    PART 1115—APPELLATE PROCEDURES 12. The authority citation for Part 1115 is revised to read as follows: Authority:

    5 U.S.C. 559; 49 U.S.C. 1321, 49 U.S.C. 11708.

    13. Revise § 1115.8 to read as follows:
    § 1115.8 Petitions to review arbitration decisions.

    An appeal of right to the Board is permitted. The appeal must be filed within 20 days of a final arbitration decision, unless a later date is authorized by the Board, and is subject to the page limitations of § 1115.2(d). For arbitrations authorized under part 1108 of this chapter, the Board's standard of review of arbitration decisions will be narrow, and relief will only be granted on grounds that the decision is inconsistent with sound principles of rail regulation economics, a clear abuse of arbitral authority or discretion occurred, the decision directly contravenes statutory authority, or the award limitation was violated. For labor arbitration decisions, the Board's standard of review is set forth in Chicago and North Western Transportation Company—Abandonment—near Dubuque & Oelwein, Iowa, 3 I.C.C.2d 729 (1987), aff'd sub nom. International Brotherhood of Electrical Workers v. Interstate Commerce Commission, 862 F.2d 330 (D.C. Cir. 1988). The timely filing of a petition will not automatically stay the effect of the arbitration decision. A stay may be requested under § 1115.3(f).

    Note:

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

    Appendix Information Collection 1

    Title: Joint Notice for Request of Arbitration.

    OMB Control Number: 2140-XXXX.

    Form Number: None.

    Type of Review: New collection.

    Respondents: Parties seeking to submit to arbitration certain matters before the Board.

    Number of Respondents: 5.

    Estimated Time per Response: No more than 1 hour.

    Frequency of Response: On occasion.

    Total Annual Hour Burden: 5 hours.

    Total Annual “Non-Hour Burden” Cost: No “non-cost” burdens associated with this collection have been identified.

    Needs and Uses: Under 49 CFR 1108.5, arbitration commences with a written complaint that contains a statement that the relevant parties are participants in the Board's arbitration program, or that the complainant is willing to arbitrate the dispute pursuant to the Board's arbitration procedures. The respondent's answer to the written complaint must then indicate the respondent's participation in the Board's arbitration program or its willingness to arbitrate the dispute at hand pursuant to the Board's arbitration procedures.

    The Board proposes here, as an alternative to filing a written complaint, that parties may submit a joint notice to the Board, indicating the consent of both parties to submit an issue in dispute to the Board's arbitration program. In the joint notice, parties would state the issue(s) that the parties are willing to submit to arbitration. The notice would also contain a statement that would indicate that all relevant parties are participants in the Board's arbitration program pursuant to § 1108.3(a), or that the relevant parties are willing to arbitrate voluntarily a matter pursuant to the Board's arbitration procedures, and the relief requested. The notice would indicate whether parties have agreed to a three-member arbitration panel or a single arbitrator. And, the notice would indicate whether the parties have mutually agreed to a lower amount of potential liability in lieu of the monetary award cap that would otherwise be applicable. This alternative filing method would encourage greater use of arbitration to resolve disputes at the Board.

    Information Collection 2

    Title: Arbitrator Roster.

    OMB Control Number: 2140-XXXX.

    Form Number: None.

    Type of Review: New collection.

    Respondents: Potential arbitrators.

    Number of Respondents: 40.

    Estimated Time per Response: No more than 1 hour.

    Frequency of Response: Annually.

    Total Annual Hour Burden: 40 hours.

    Total Annual “Non-Hour Burden” Cost: No “non-cost” burdens associated with this collection have been identified.

    Needs and Uses: Under section 11708, the Board must “promulgate regulations to establish a voluntary and binding arbitration process to resolve rail rate and practice complaints” that are subject to the Board's jurisdiction. To facilitate this process, the Board's proposed rules would establish a process for creating and maintaining a roster of arbitrators and selecting arbitrators from the roster in accordance with the statutory requirements.

    Pursuant to section 11708(f), unless parties otherwise agree, an arbitrator or panel of arbitrators would be selected from a roster maintained by the Board. The Board's roster would provide a brief biographical sketch of each arbitrator, including information such as background, experience, and geographical location, as well as general contact information, based on the information supplied by the arbitrator. Under the proposed rules, an initial roster would be compiled by the Chairman, who would seek notice from all interested, qualified persons who wish to be placed on the Board's arbitration roster. The Chairman could augment the roster at any time to include other eligible arbitrators and remove from the roster any arbitrators who are no longer available or eligible. The roster would be made available to the public on the Board's Web site.

    [FR Doc. 2016-11238 Filed 5-13-16; 8:45 am] BILLING CODE 4915-01-P
    81 94 Monday, May 16, 2016 Notices DEPARTMENT OF AGRICULTURE Forest Service Ketchikan Resource Advisory Committee AGENCY:

    Forest Service, USDA.

    ACTION:

    Notice of meeting.

    SUMMARY:

    The Ketchikan Resource Advisory Committee (RAC) will meet in Ketchikan, Alaska. 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: https://wwwfrusda.gov/main/pts.

    DATES:

    The meeting will be held on June 22, 2016, at 5:00 p.m.

    All RAC meetings are subject to cancellation. For status of meeting prior to attendance, please contact the person listed under For Further Information Contact.

    ADDRESS:

    The meeting will be held at the Ketchikan Misty Fiords Ranger District, 3031 Tongass Avenue, Ketchikan, Alaska. A conference line is set up for those who would like to listen in by telephone. For the conference call number, please contact the person listed under For Further Information Contact.

    Written comments may be submitted as described under Supplementary Information. All comments, including names and addresses when provided, are placed in the record and are available for public inspection and copying. The public may inspect comments received at Ketchikan Misty Fiords Ranger District. Please call ahead to facilitate entry into the building.

    FOR FURTHER INFORMATION CONTACT:

    Diane L. Olson, RAC Coordinator, by phone at 907-228-4105 or via email at [email protected]

    Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8:00 a.m. and 8:00 p.m., Eastern Standard Time, Monday through Friday.

    SUPPLEMENTARY INFORMATION:

    The purpose of the meeting is to:

    1. Update members on past RAC projects, and

    2. Propose new RAC projects.

    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 June 14, 2016, to be scheduled on the agenda. Anyone who would like to bring related matters to the attention of the committee may file written statements with the committee staff before or after the meeting. Written comments and requests for time to make oral comments must be sent to Diane L. Olson, RAC Coordinator, Ketchikan Misty Fiords Ranger District, 3031 Tongass Avenue, Ketchikan, Alaska 99901; by email to [email protected], or via facsimile to 907-225-8738.

    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: May 5, 2016. Daryl Bingham, Acting District Ranger.
    [FR Doc. 2016-11208 Filed 5-13-16; 8:45 am] BILLING CODE M
    DEPARTMENT OF COMMERCE Submission for OMB Review; Comment Request

    The Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. chapter 35).

    Agency: National Institute of Standards and Technology (NIST).

    Title: NIST Generic Clearance for Community Resilience Data Collections.

    OMB Control Number: 0693-XXXX (New collection).

    Form Number(s): None.

    Type of Request: Regular submission.

    Number of Respondents: 5,000.

    Average Hours per Response: Varied, dependent upon the data collection method used. The possible response time to complete a questionnaire may be 15 minutes or 2 hours to participate in an interview. The overall average response time is expected to be 30 minutes.

    Burden Hours: 5,625.

    Needs and Uses: In accordance with Executive Order 12862, the National Institute of Standards and Technology (NIST), a non-regulatory agency of the Department of Commerce (DOC), proposes to conduct a number of surveys both quantitative and qualitative-designed to evaluate our current program evaluation data collections by means of, but not limited to, focus groups, reply cards that accompany product distributions, and Web-based surveys and dialogue boxes that offer customers an opportunity to express their views on the programs they are asked to evaluate. NIST will limit its inquires to data collections that solicit strictly voluntary opinions and will not collect information that is required or regulated. Steps will be taken to assure anonymity covered under this request.

    Affected Public: Business or other for profit organizations, not-for-profit institutions, individuals or households, Federal government, State, Local or Tribal Governments.

    Frequency: On occasion.

    Respondent's Obligation: Voluntary.

    This information collection request may be viewed at reginfo.gov. Follow the instructions to view Department of Commerce collections currently under review by OMB.

    Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to [email protected] or fax to (202) 395-5806.

    Dated: May 11, 2016. Glenna Mickelson, Management Analyst, Office of the Chief Information Officer.
    [FR Doc. 2016-11442 Filed 5-13-16; 8:45 am] BILLING CODE 3510-13-P
    DEPARTMENT OF COMMERCE Submission for OMB Review; Comment Request

    The Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. chapter 35).

    Agency: U.S. Census Bureau.

    Title: 2017 Economic Census Industry Classification Report.

    OMB Control Number: 0607-XXXX.

    Form Number(s): None. All electronic collection.

    Type of Request: New collection.

    Number of Respondents: 125,000.

    Average Hours per Response: 7 minutes.

    Burden Hours: 14,583.

    Needs and Uses: The Economic Census and current business surveys represent the primary source of facts about the structure and function of the U.S. economy, providing essential information to government and the business community in making sound decisions. This information helps build the foundation for the calculation of Gross Domestic Product (GDP) and other economic indicators. Crucial to its success is the accuracy and reliability of the Business Register data, which provides the Economic Census and current business surveys with their establishment lists.

    Critical to the quality of data in the Business Register is that establishments are assigned an accurate economic classification, based on the North American Industry Classification System (NAICS). The primary purpose of the 2017 Economic Census Industry Classification Report is to meet this need.

    New businesses are assigned NAICS codes by the Social Security Administration (SSA); however, many of these businesses cannot be assigned detailed NAICS codes, because insufficient data are provided by respondents on the Internal Revenue Service (IRS) Form SS-4. This report, conducted in fiscal years 2017 and 2018, will mail approximately 125,000 businesses per year that have been partially classified in the economic sectors covered in the Economic Census. Businesses selected for the sample will be asked to provide data on primary business activity in order to assign proper industry classification, thus maintaining proper coverage of the business universe. The activities listed in the Principal Business or Activity question of the questionnaire will vary based upon the partial NAICS code of the establishment at the time of mail out. An example of activities listed under this item is included under the question.

    The 2017 Economic Census Industry Classification Report will be used to update the classification codes contained in the Business Register, ensuring establishments will be tabulated in the correct detailed industry for the 2017 Economic Census and in succeeding economic surveys. Information obtained from these establishments will also be included in the Census Bureau's County Business Patterns (CBP) publications. CBP publications provide annual data on establishment counts, employment, and payroll for all sectors of the economy at national, state, and county levels. The failure to collect this information will have an adverse effect on the quality and usefulness of economic statistics provided by the Census Bureau.

    Affected Public: Business and other for-profit, Not-for-profit institutions.

    Frequency: Every 5 years.

    Respondent's Obligation: Mandatory.

    Legal Authority:

    Title 13, U.S.C., Sections 131 and 193.

    This information collection request may be viewed at www.reginfo.gov. Follow the instructions to view Department of Commerce collections currently under review by OMB.

    Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to [email protected] or fax to (202) 395-5806.

    Dated: May 11, 2016. Glenna Mickelson, Management Analyst, Office of the Chief Information Officer.
    [FR Doc. 2016-11443 Filed 5-13-16; 8:45 am] BILLING CODE 3510-07-P[PRTPAGE P='1']
    DEPARTMENT OF COMMERCE Economic Development Administration Notice of Petitions by Firms for Determination of Eligibility To Apply for Trade Adjustment Assistance AGENCY:

    Economic Development Administration, Department of Commerce.

    ACTION:

    Notice and opportunity for public comment.

    Pursuant to section 251 of the Trade Act 1974, as amended (19 U.S.C. 2341 et seq.), the Economic Development Administration (EDA) has received petitions for certification of eligibility to apply for Trade Adjustment Assistance from the firms listed below. Accordingly, EDA has initiated investigations to determine whether increased imports into the United States of articles like or directly competitive with those produced by each of these firms contributed importantly to the total or partial separation of the firm's workers, or threat thereof, and to a decrease in sales or production of each petitioning firm.

    List of Petitions Received by EDA for Certification Eligibility To Apply for Trade Adjustment Assistance [1/1/2016 through 5/10/2016] Firm name Firm address Date accepted
  • for
  • investigation
  • Product(s)
    Custom Gear & Machine, Inc 5466 East Rockton Road, Roscoe, IL 61073 4/1/2016 The firm manufactures custom machined and ground metal gears. Photo Solutions, Inc 603 California Avenue, Vernonia, OR 97064 5/5/2016 The firm manufactures encoder discs, scales, masks, and film. Precision Composites of Vermont, LLC 620 Gilman Street, Lyndon Center, VT 05850 5/10/2016 The firm manufactures formed composite and plastic solutions. M&M Automatic Products, Inc 420 Ingham Street, Jackson, MI 49201 5/10/2016 The firm manufactures crew machining of turned products, including nuts, bolts, washers, bushings, threaded inserts, and spacers.

    Any party having a substantial interest in these proceedings may request a public hearing on the matter. A written request for a hearing must be submitted to the Trade Adjustment Assistance for Firms Division, Room 71030, Economic Development Administration, U.S. Department of Commerce, Washington, DC 20230, no later than ten (10) calendar days following publication of this notice.

    Please follow the requirements set forth in EDA's regulations at 13 CFR 315.9 for procedures to request a public hearing. The Catalog of Federal Domestic Assistance official number and title for the program under which these petitions are submitted is 11.313, Trade Adjustment Assistance for Firms.

    Dated: May 10, 2016. Miriam Kearse, Lead Program Analyst.
    [FR Doc. 2016-11465 Filed 5-13-16; 8:45 am] BILLING CODE 3510-WH-P
    DEPARTMENT OF COMMERCE International Trade Administration Advisory Committee on Supply Chain Competitiveness: Notice of Public Meetings AGENCY:

    International Trade Administration, U.S. Department of Commerce.

    ACTION:

    Notice of open meetings.

    SUMMARY:

    This notice sets forth the schedule and proposed topics of discussion for public meetings of the Advisory Committee on Supply Chain Competitiveness (Committee).

    DATES:

    The meetings will be held on June 22, 2016, from 12:00 p.m. to 3:00 p.m., and June 23, 2016, from 9:00 a.m. to 4:00 p.m., Eastern Standard Time (EST).

    ADDRESSES:

    The meetings on June 22 and 23 will be held at the U.S. Department of Commerce, 1401 Constitution Avenue NW., Research Library (Room 1894), Washington, DC 20230.

    FOR FURTHER INFORMATION CONTACT:

    Richard Boll, Office of Supply Chain, Professional & Business Services (OSCPBS), International Trade Administration. Phone: (202) 482-1135 or Email: [email protected].

    SUPPLEMENTARY INFORMATION:

    Background: The Committee was established under the discretionary authority of the Secretary of Commerce and in accordance with the Federal Advisory Committee Act (5 U.S.C. App. 2). It provides advice to the Secretary of Commerce on the necessary elements of a comprehensive policy approach to supply chain competitiveness designed to support U.S. export growth and national economic competitiveness, encourage innovation, facilitate the movement of goods, and improve the competitiveness of U.S. supply chains for goods and services in the domestic and global economy; and provides advice to the Secretary on regulatory policies and programs and investment priorities that affect the competitiveness of U.S. supply chains. For more information about the Committee visit: http://trade.gov/td/services/oscpb/supplychain/acscc/.

    Matters to Be Considered: Committee members are expected to continue to discuss the major competitiveness-related topics raised at the previous Committee meetings, including trade and competitiveness; freight movement and policy; information technology and data requirements; regulatory issues; finance and infrastructure; and workforce development. The Committee's subcommittees will report on the status of their work regarding these topics. The agendas may change to accommodate Committee business. The Office of Supply Chain, Professional & Business Services will post the final detailed agendas on its Web site, http://trade.gov/td/services/oscpb/supplychain/acscc/, at least one week prior to the meeting. The meetings will be open to the public and press on a first-come, first-served basis. Space is limited. The public meetings are physically accessible to people with disabilities. Individuals requiring accommodations, such as sign language interpretation or other ancillary aids, are asked to notify Mr. Richard Boll, at (202) 482-1135 or [email protected] five (5) business days before the meeting.

    Interested parties are invited to submit written comments to the Committee at any time before and after the meeting. Parties wishing to submit written comments for consideration by the Committee in advance of this meeting must send them to the Office of Supply Chain, Professional & Business Services, 1401 Constitution Ave. NW., Room 11014, Washington, DC 20230, or email to [email protected].

    For consideration during the meetings, and to ensure transmission to the Committee prior to the meetings, comments must be received no later than 5:00 p.m. EST on June 14, 2016. Comments received after June 14, 2016, will be distributed to the Committee, but may not be considered at the meetings. The minutes of the meetings will be posted on the Committee Web site within 60 days of the meeting.

    Dated: May 9, 2016. Bruce Harsh, Acting Director, OSCPBS.
    [FR Doc. 2016-11496 Filed 5-13-16; 8:45 am] BILLING CODE 3510-DR-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XE625 New England Fishery Management Council; Public Meeting AGENCY:

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

    ACTION:

    Notice; public meeting.

    SUMMARY:

    The New England Fishery Management Council (Council) is scheduling a public meeting of its Herring Committee to consider actions affecting New England fisheries in the exclusive economic zone (EEZ). Recommendations from this group will be brought to the full Council for formal consideration and action, if appropriate.

    DATES:

    This meeting will be held on Thursday, June 2, 2016 at 9 a.m.

    ADDRESSES:

    The meeting will be held at the Four Points by Sheraton, One Audubon Road, Wakefield, MA 01880; phone: (978) 245-9300; fax: (781) 245-0842.

    Council address: New England Fishery Management Council, 50 Water Street, Mill 2, Newburyport, MA 01950.

    FOR FURTHER INFORMATION CONTACT:

    Thomas A. Nies, Executive Director, New England Fishery Management Council; telephone: (978) 465-0492.

    SUPPLEMENTARY INFORMATION:

    Agenda

    The Committee plans to review outcomes of the May 16-17, 2016 public workshop on the Management Strategy Evaluation of Atlantic Herring Acceptable Biological Catch control rules; and make any recommendations to the Council. They will also review Plan Development Team work to date on this action that considers revising the Georges Bank haddock catch cap and associated accountability measures and make any recommendations to the Council regarding the development of alternatives. The committee will also review/discuss the herring coverage target alternatives/impacts analysis; and make any recommendations to the Council for preliminary preferred alternatives. Other business will be discussed as necessary.

    Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Act, provided the public has been notified of the Council's intent to take final action to address the emergency.

    Special Accommodations

    This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Thomas A. Nies, Executive Director, at (978) 465-0492, at least 5 days prior to the meeting date.

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: May 10, 2016. Jeffrey N. Lonergan, Acting Deputy Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2016-11431 Filed 5-13-16; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XE626 New England Fishery Management Council; Public Meeting AGENCY:

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

    ACTION:

    Notice; public meeting.

    SUMMARY:

    The New England Fishery Management Council (Council) is scheduling a public meeting of its Scientific & Statistical Committee to consider actions affecting New England fisheries in the exclusive economic zone (EEZ). Recommendations from this group will be brought to the full Council for formal consideration and action, if appropriate.

    DATES:

    This meeting will be held on Thursday, June 2, 2016, beginning at 9:30 a.m.

    ADDRESSES:

    The meeting will be held at the Hilton Garden Inn, Boston Logan, 100 Boardman Street, Boston, MA 02128; phone: (617) 567-6789.

    Council address: New England Fishery Management Council, 50 Water Street, Mill 2, Newburyport, MA 01950.

    FOR FURTHER INFORMATION CONTACT:

    Thomas A. Nies, Executive Director, New England Fishery Management Council; telephone: (978) 465-0492.

    SUPPLEMENTARY INFORMATION: Agenda

    The Committee will discuss the Wiedenmann report and how groundfish catch recommendations might be improved. They will receive an update and comment on a plan for the 5-year catch shares review of the scallop LACG ITQ management program. Also on the agenda is an update on NRCC discussions of operational assessment process and schedule. They will discuss other business as needed.

    Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during these meetings. Action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Act, provided the public has been notified of the Council's intent to take final action to address the emergency.

    Special Accommodations

    This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Thomas A. Nies, Executive Director, at (978) 465-0492, at least 5 days prior to the meeting date.

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: May 11, 2016. Jeffrey N. Lonergan, Acting Deputy Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2016-11482 Filed 5-13-16; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XE627 Western Pacific Fishery Management Council; Public Meetings AGENCY:

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

    ACTION:

    Notice of public meetings and hearings.

    SUMMARY:

    The Western Pacific Fishery Management Council (Council) will hold its 123rd Scientific and Statistical Committee (SSC) meeting and its 166th Council meeting to take actions on fishery management issues in the Western Pacific Region. The Council will also hold meetings of its advisory groups, namely: (1) The Guam Regional Ecosystem Advisory Committee (REAC); (2) Commonwealth of the Northern Mariana Islands (CNMI) REAC; (3) Joint Guam and CNMI Marianas Advisory Panel (AP); (4) Fishery Data Collection and Research Committee (FDCRC); (5) Program Planning and Research Standing Committee; and (6) Executive and Budget Standing Committee.

    DATES:

    The meetings will be held between May 31, 2016 and June 10, 2016. For specific dates, times and agendas, see SUPPLEMENTARY INFORMATION.

    ADDRESSES:

    The 123rd SSC will be held at the Council office, 1164 Bishop Street, Suite 1400, Honolulu, HI 96813, phone: (808) 522-8220. The Guam REAC will be held at Hilton Guam Resort and Spa, 202 Hilton Road, Tumon Bay, Guam 96913, phone (671) 646-1835. The CNMI REAC and Joint Guam and CNMI Marianas AP, will be held at Saipan Fiesta Resort and Spa, P.O. Box 501029, Saipan, MP 96950, telephone: (670) 234-6412. The FDCRC, Program Planning and Research Standing Committee, and Executive and Budget Standing Committee will be held at the Hyatt Regency Saipan, Royal Palm Avenue, Micro Beach Road, Garapan, Saipan, MP 96950 Saipan, telephone: (1-670) 234-1234. The first two days of the 166th Council meeting will be held at Saipan Fiesta Resort and Spa, P.O. Box 501029, Saipan, MP 96950, telephone: (670) 234-6412 and the last two days at the Hilton Guam Resort and Spa, 202 Hilton Road, Tumon Bay, Guam 96913, telephone: (671) 646-1835.

    FOR FURTHER INFORMATION CONTACT:

    Kitty M. Simonds, Executive Director, phone: (808) 522-8220.

    SUPPLEMENTARY INFORMATION:

    The 123rd SSC meeting will be held between 8:30 a.m. and 5 p.m. on May 31-June 2, 2016. The Guam REAC will be held on June 2, 2016. The CNMI REAC on June 3, 2016. The Joint Guam and CNMI Marianas AP meeting will be held between 8:30 a.m. and 4 p.m. on June 4, 2016. The FDCRC will be held between 9 a.m. to 12 p.m. on June 4, 2016. The Program Planning and Research Standing Committee will be held between 1 p.m. to 3 p.m. on June 4, 2016. Executive and Budget Standing Committee will be on June 4, 2016, from 3 p.m. to 5 p.m. The 166th Council meeting will be held from 8:30 to 5 p.m. on June 6-7 and 9-10, 2016.

    In addition to the agenda items listed here, the Council and its advisory bodies will hear recommendations from Council advisors. Public comment periods will be provided throughout the agendas. The order in which agenda items are addressed may change. The meetings will run as late as necessary to complete scheduled business. Background documents will be available from, and written comments should be sent to, Kitty M. Simonds, Executive Director; Western Pacific Fishery Management Council, 1164 Bishop Street, Suite 1400, Honolulu, HI 96813, phone: (808) 522-8220 or fax: (808) 522-8226.

    Agenda for 123rd SSC Meeting Tuesday, May 31, 2016, 8:30 a.m. to 5 p.m. 1. Introductions 2. Approval of Draft Agenda and Assignment of Rapporteurs 3. Status of the 122nd SSC Meeting Recommendations 4. Report from the Pacific Islands Fisheries Science Center Director 5. Insular Fisheries A. Evaluation of the existing Biological Reference Points Project B. Jungle histology and size at first maturity for reef fish C. Public Comment D. SSC Discussion and Recommendations Guest Speaker “Scraping Social Media for Unreported Catch” 6. Program Planning A. Report on the 2015 Annual/SAFE (Stock Assessment and Fishery Evaluation) Report 1. Archipelagic Annual/SAFE Report 2. Pelagic Annual/SAFE Report B. Evaluation of 2015 catch to 2015 Annual Catch Limits (ACLs) C. Options for revising the risk determination and uncertainty characterization process (Action Item) D. Five-year Research Priorities E. Climate Change 1. Pacific Islands Region Climate Action Plan 2. Pacific Islands Region Fish Stock Climate Vulnerability Assessment F. Cooperative Research Program 1. Cooperative Research Priorities 2. Cooperative Research Implementation Framework G. Public Comment H. SSC Discussion and Recommendations Wednesday, June 1, 2016, 8:30 a.m. to 5 p.m. 7. Pelagic Fisheries A. Impact of Effort Limit Area for Purse Seine (ELAPS) on America Samoa Economy B. Hawaii Shallow-set Observer Coverage C. Results from Hawaii Small Boat Survey 2014 D. International Fisheries 1. Eastern Pacific Ocean (EPO) bigeye tuna quota 2. Western and Central Pacific Fisheries Commission (WCPFC) Issues E. International Fishery Meetings 1. Inter-American Tropical Tuna Commission (IATTC) Science Committee 2. IATTC General Advisory Committee/Scientific Subcommittee (GAC/SAS) Meeting 3. IATTC Plenary 4. Quota tracking for Western and Central Pacific Ocean (WCPO) and EPO bigeye quotas F. Public Comment G. SSC Discussion and Recommendations 8. Protected Species A. Report of the Protected Species Advisory Committee Meeting B. Update on Pacific Islands Fisheries Science Center (PIFSC) Marianas Cetacean Surveys C. Updates on Endangered Species Act and Marine Mammal Protection Act Actions 1. Green Turtle Listing Final Rule 2. Humpback Whale Listing Final Rule 3. Other Actions D. Public Comment E. SSC Discussion and Recommendations Thursday, June 2, 2016, 8:30 a.m. to 5 p.m. 9. Other Business A. 124th SSC Meeting 10. Summary of SSC Recommendations to the Council Agenda for the Guam REAC Thursday, June 2, 2016, 8:30 a.m. to 3 p.m. 1. Fishery Ecosystem Plan (FEP) Review and Modification Overview 2. Annual Report Modification Overview and Process 3. Highlights from 2015 Annual Report Draft A. Fishery Data B. Biomass and Life History C. Protected Species D. Socioeconomics E. Habitat 4. WPFMC Committees Review of Annual Report and Recommendations 5. Chapter 3 Data Integration: Initial Discussion 6. Public Comment 7. Other Business 8. REAC Discussion and Recommendations Agenda for CNMI REAC Friday, June 3, 2016, 1 p.m. to 5 p.m. 1. FEP Review and Modification Overview 2. Annual Report Modification Overview and Process 3. Highlights from 2015 Annual Report Draft A. Fishery Data B. Biomass and Life History C. Protected Species D. Socioeconomics E. Habitat 4. WPFMC Committees Review of Annual Report and Recommendations 5. Chapter 3 Data Integration: Initial Discussion 6. Public Comment 7. Other Business 8. REAC Discussion and Recommendations Agenda for Joint Marianas AP Saturday, June 4, 2016, 8:30 a.m. to 4 p.m. 1. Welcome and Introductions 2. Outstanding Council Mariana Recommendations 3. Council Issues A. Regional Research Needs B. Options for Revising the Risk Determination and Uncertainty Characterization Process 4. Mariana Archipelago FEP Community Activities A. CNMI B. Guam 5. Mariana FEP AP Issues A. Report of the Guam Subpanels B. Report of the CNMI Subpanels C. Other Issues 6. AP Training and Needs 7. Public Comment 8. Discussion and Recommendations 9. Other Business Agenda for FDCRC Saturday, June 4, 2016, 9 a.m. to 12 p.m. 1. Welcome Remarks 2. Introductions 3. Update on previous FDCRC recommendations 4. Agency reports on fishery data collection improvement efforts A. Western Pacific Fishery Management Council B. Pacific Islands Fisheries Science Center C. CNMI—Division of Fish and Wildlife D. Guam—Division of Aquatic and Wildlife Resources E. Guam—Bureau of Statistics and Plans F. Hawaii—Division of Aquatic Resources G. Am. Samoa—Department of Marine and Wildlife Resources 5. Pacific Islands Fisheries Research Program A. Action on the 2016 proposals 6. Alternative summarization and analytics interface 7. Report on the data requirement for the Annual/SAFE reports 8. Report on FDCRC-Technical Committee A. Action Items B. Recommendations 9. Process for monitoring the regional strategic plan 10. FDCRC technical equivalent of Marine States Fisheries Commission 11. Public Comment 12. Discussions and Recommendations 13. Adjourn Agenda for Program Planning and Research Standing Committee Saturday, June 4, 2016, 1 p.m. to 3 p.m. 1. Welcome and introductions 2. Highlights of the 2015 Annual/SAFE Report A. Archipelagic Annual/SAFE Report B. Pelagic Annual/SAFE Report 3. Evaluation of 2015 catch to 2015 ACLs 4. Options for revising the risk determination and uncertainty characterization process (Action Item) 5. Public Comment 6. Standing Committee Discussion & Recommendations Agenda for Executive and Budget Standing Committee Saturday, June 4, 2016, 3 p.m. to 5 p.m. 1. Administrative Report 2. Financial Report 3. Statement of Organization Practices and Procedures 4. Regional Operating Agreement Essential Fish Habitat (EFH) Policy 5. SSC Three Year Plan 6. Meetings and Workshops 7. Council Family Changes 8. Other Issues 9. Public Comment 10. Committee Discussion and Recommendations Agenda for the 166th Council Meeting Monday, June 6, 2016, 8:30 a.m. to 5 p.m. 1. Opening Ceremony and Introductions 2. Opening Remarks from Honorable Governor Ralph DLG Torres 3. Approval of the 166th Agenda 4. Approval of the 165th Meeting Minutes 5. Executive Director's Report 6. Agency Reports A. National Marine Fisheries Service 1. Pacific Islands Regional Office a. Transfer of submerged lands to CNMI b. Draft Monument Management Plan 2. Pacific Islands Fisheries Science Center B. NOAA Regional Counsel 1. Report on Compact Impact Related to Fishing C. U.S. Fish and Wildlife Service D. Enforcement 1. U.S. Coast Guard 2. NMFS Office for Law Enforcement 3. NOAA General Counsel for Enforcement and Litigation E. Public Comment F. Council Discussion and Action 7. Mariana Archipelago—Part 1: CNMI A. Arongol Falú B. Legislative Report C. Enforcement Issues D. Report on CNMI Fisheries 1. Coral Reef Fisheries 2. Bottomfish Fisheries 3. Pelagic Fisheries E. Report on Bio-Sampling Program F. Report on Database Analytics Project G. Report on CNMI Projects 1. Territory Science Initiative 2. Marine Recreational Improvement Program H. Community Activities and Issues 1. Northern Islands Community-based Marine Resource Management Plan I. Education and Outreach Initiatives 1. Report of the Lunar Calendar J. Advisory Group Reports and Recommendations K. SSC Recommendations L. Public Comment M. Council Discussion and Action 8. Program Planning and Research A. Highlights of the 2015 Annual/SAFE Report 1. Archipelagic Annual/SAFE Report 2. Pelagic Annual/SAFE Report B. Evaluation of 2015 catch to 2015 ACLs C. Options for Revising the Risk Determination and Uncertainty Characterization Process (Action Item) D. Council Five-Year Research Priorities E. Cooperative Research Program 1. Cooperative Research Priorities 2. Cooperative Research Implementation Framework F. Report on National EFH Summit G. Regional, National, International Education and Outreach H. Advisory Body Reports and Recommendations I. SSC Recommendations J. Standing Committee Recommendations K. Public Hearing L. Council Discussion and Action Monday, June 6, 2016, 6 p.m. to 9 p.m. Fishers Forum—Data, data everywhere, but not a megabyte to eat. Tuesday, June 7, 2016, 8:30 a.m. to 5 p.m. 9. Protected Species A. Report on the Mariana Islands Sea Turtle Programs B. Update on PIFSC Marianas Cetacean Surveys C. Updates on Endangered Species Act and Marine Mammal Protection Act Actions 1. Green Turtle Listing Revision 2. Humpback Whale Listing Final Rule 3. Other Actions D. Advisory Body Reports and Recommendations E. SSC Recommendations F. Public Comment G. Council Discussion and Action 10. American Samoa Archipelago A. Motu Lipoti B. Fono Report C. Enforcement Issues D. Community Activities and Issues 1. NOAA Pacific Island Regional Planning Body (PIRPB) Meetings Held in American Samoa a. PIRPB b. American Samoa Planning Team c. Public Listening Session 2. Fagatogo Fish Market Lease E. 17th Annual I'a Lapo'a Game Fish Tournament F. Education and Outreach Initiatives G. Advisory Group Report and Recommendations H. SSC Recommendations I. Public Comment J. Council Discussion and Action 11. Public Comment on Non-Agenda Items Thursday, June 9, 2016, 8:30 a.m. to 5 p.m. Welcoming Remarks from the Honorable Governor Eddie Calvo 12. Marianas Archipelago—Part 2: Guam A. Isla Informe B. Legislative Report C. Enforcement Issues D. Report on Guam Fisheries 1. Coral Reef Fisheries 2. Bottomfish Fisheries 3. Pelagic Fisheries E. Report on Bio-Sampling Program F. Guam Sea Turtle Management Plan G. Report on Guam Projects and Programs 1. FAS-Guam Fishing Conflict Study and Report 2. Coral Reef Fisheries Mapping Project H. Community Development Activities and Issues 1. Malesso Community-based Marine Resource Plan Update a. Status of Cocos Lagoon PCB assessment b. Resource Monitoring of Cocos Lagoon Marine Resources c. Upland and coastal water resource monitoring d. Zoning initiative for Cocos Lagoon 2. Yigo Draft Community-based Marine Resource Plan a. Overview of Yigo CBMP plan and outcomes b. Community input and feedback 3. NOAA Habitat Blue Print 4. Ritidian Point a. Proposed Firing Range b. National Wildlife Refuge—Access Issues I. Education and Outreach Initiatives 1. Report of the Lunar Calendar Festival 2. Festival of the Pacific Arts 2016 J. Advisory Body Reports and Recommendations K. SSC Recommendations L. Public Comment M. Council Discussion and Action 13. Pelagic and International Fisheries A. Guam and CNMI Small Vessel Pelagic Fisheries B. Impact of ELAPS on America Samoa Economy C. Hawaii Shallow-set Observer Coverage (Action Item) D. International Fisheries 1. EPO bigeye tuna quota 2. WCPFC Issues 3. Quota tracking for WCPO and EPO bigeye quotas E. International Fishery Meetings 1. IATTC Science Committee 2. IATTC GAC/SAS Meeting 3. IATTC Plenary F. Advisory Group Reports and Recommendations G. SSC Recommendations H. Public Hearing I. Council Discussion and Recommendations 14. Public Comment on Non-Agenda Items Thursday, June 9, 2016, 6 p.m. to 9 p.m. Fishers Forum—Mapping Fishery Resources Friday, June 10, 2016, 8:30 a.m. to 5 p.m. 15. Hawaii Archipelago A. Moku Pepa B. Legislative Report C. Enforcement D. Documenting the History of the Hawaii Bottomfish Fishery E. Scraping social media for unreported catch F. Community Projects, Activities and Issues 1. Proposed Expansion Papahanaumokuakea Marine National Monument 2. Recreational/Non-Commercial Licensing Initiative 3. Hokulea Voyage—Status update on Council Promise to Pae Aina G. Report on the Aha Moku System H. Outreach and Education Report I. Advisory Body Report and Recommendations J. SSC Recommendations K. Public Comment L. Council Discussion and Action 16. Administrative Matters A. Financial Reports B. Administrative Reports C. Council Policies and Agreements 1. SOPP Revision 2. Regional Operating Agreement—EFH Agreement 3. SSC Operational Guidelines and Three-Year Plan D. Council Family Changes 1. Social Science Planning Committee E. Meetings and Workshops 1. Council Coordination Committee 2. Other meetings, workshops and conferences F. Other Business G. Standing Committee Recommendations H. Public Comment I. Council Discussion and Action 17. Other Business

    Non-emergency issues not contained in this agenda may come before the Council for discussion and formal Council action during its 166th meeting. However, Council action on regulatory issues will be restricted to those issues specifically listed in this document and any regulatory issue arising after publication of this document that requires emergency action under section 305(c) of the Magnuson-Stevens Act, provided the public has been notified of the Council's intent to take action to address the emergency.

    Special Accommodations

    These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Kitty M. Simonds, (808) 522-8220 (voice) or (808) 522-8226 (fax), at least 5 days prior to the meeting date.

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: May 11, 2016. Jeffrey N. Lonergan, Acting Deputy Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2016-11480 Filed 5-13-16; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XE609 Gulf of Mexico Fishery Management Council; Public Meeting AGENCY:

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

    ACTION:

    Notice of a public meeting.

    SUMMARY:

    The Gulf of Mexico Fishery Management Council (Council) will hold a meeting of its Outreach and Education Technical Committee.

    DATES:

    The meeting will convene Wednesday, June 1, 2016, from 12 noon to 5 p.m. and Thursday, June 2, 2016, from 8:30 a.m. to 3:30 p.m.

    ADDRESSES:

    The meeting will take place at the Council's office, 2203 N. Lois Avenue, Suite 1100, Tampa, FL 33607; telephone: (813) 348-1630.

    FOR FURTHER INFORMATION CONTACT:

    Charlene Ponce, Public Information Officer, Gulf of Mexico Fishery Management Council; [email protected]ouncil.org; telephone: (813) 348-1630.

    SUPPLEMENTARY INFORMATION:

    The items of discussion on the agenda are as follows:

    Outreach and Education Technical Committee Agenda Wednesday, June 1, 2016, 12 noon to 5 p.m. • Introductions and Adoption of Agenda • Approval of Minutes • Election of Officers • Advisory Panel Orientation • Overview of current Council outreach/education/communication initiatives • Discussion—Public Hearing and Scoping Workshop Attendance • Discussion—Gulf Council Data Portal • Discussion—Potential for Shared Photo Library • Overview of Communications Survey Thursday, June 2, 2016, 8:30 a.m. to 3:30 p.m. Workshop • Culturally Sensitive and Targeted Outreach • Messages that Connect • Combat Communication for Conservationist • Other business — Meeting Adjourns—

    The Agenda is subject to change, and the latest version along with other meeting materials will be posted on the Council's file server. To access the file server, the URL is https://public.gulfcouncil.org:5001/webman/index.cgi, or go to the Council's Web site and click on the File Server link in the lower left of the Council Web site (http://www.gulfcouncil.org). The username and password are both “gulfguest”. Click on the “Library Folder”, then scroll down to “O&E Technical Committee”.

    The meeting will be webcast over the internet. A link to the webcast will be available on the Council's Web site, http://www.gulfcouncil.org.

    Although other non-emergency issues not on the agenda may come before the Technical Committee for discussion, in accordance with the Magnuson-Stevens Fishery Conservation and Management Act, those issues may not be the subject of formal action during this meeting. Actions of the Technical Committee will be restricted to those issues specifically identified in the agenda and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the Council's intent to take action to address the emergency.

    Special Accommodations

    This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Kathy Pereira at the Gulf Council Office (see ADDRESSES), at least 5 working days prior to the meeting.

    Dated: May 10, 2016. Jeffrey N. Lonergan, Acting Deputy Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2016-11429 Filed 5-13-16; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XE624 New England Fishery Management Council; Public Meeting AGENCY:

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

    ACTION:

    Notice; public meeting.

    SUMMARY:

    The New England Fishery Management Council (Council) is scheduling a public meeting of its Herring Advisory Panel to consider actions affecting New England fisheries in the exclusive economic zone (EEZ). Recommendations from this group will be brought to the full Council for formal consideration and action, if appropriate.

    DATES:

    This meeting will be held on Wednesday, June 1, 2016 at 10 a.m.

    ADDRESSES:

    The meeting will be held at the Four Points by Sheraton, One Audubon Road, Wakefield, MA 01880; phone: (781) 245-9300; fax: (781) 245-0842.

    Council address: New England Fishery Management Council, 50 Water Street, Mill 2, Newburyport, MA 01950.

    FOR FURTHER INFORMATION CONTACT:

    Thomas A. Nies, Executive Director, New England Fishery Management Council; telephone: (978) 465-0492.

    SUPPLEMENTARY INFORMATION:

    Agenda

    The Advisory Panel plans to review outcomes of the May 16-17, 2016 public workshop on the Management Strategy Evaluation of Atlantic Herring Acceptable Biological Catch control rules; and make any recommendations to the Herring Committee. They will also review Plan Development Team work to date on this action that considers revising the Georges Bank haddock catch cap and associated accountability measures and make any recommendations to the Herring Committee regarding the development of alternatives. The panel will also review/discuss the herring coverage target alternatives/impacts analysis; and make any recommendations to the Herring Committee for preliminary preferred alternatives. Other business will be discussed as necessary.

    Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Act, provided the public has been notified of the Council's intent to take final action to address the emergency.

    Special Accommodations

    This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Thomas A. Nies, Executive Director, at (978) 465-0492, at least 5 days prior to the meeting date.

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: May 10, 2016. Jeffrey N. Lonergan, Acting Deputy Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2016-11430 Filed 5-13-16; 8:45 am] BILLING CODE 3510-22-P
    COMMODITY FUTURES TRADING COMMISSION Notice of Proposed Amendment to and Request for Comment on the Final Order in Response to a Petition From Certain Independent System Operators and Regional Transmission Organizations To Exempt Specified Transactions Authorized by a Tariff or Protocol Approved by the Federal Energy Regulatory Commission or the Public Utility Commission of Texas From Certain Provisions of the Commodity Exchange Act Pursuant to the Authority Provided in the Act AGENCY:

    Commodity Futures Trading Commission.

    ACTION:

    Notice of proposed order and request for comment.

    SUMMARY:

    The Commodity Futures Trading Commission (“CFTC” or “Commission”) is proposing an amendment to an order issued on March 28, 2013 exempting specified transactions from certain provisions of the Commodity Exchange Act (“CEA” or “Act”) and Commission regulations.

    DATES:

    Comments for the Notice of Proposed Order must be received on or before June 15, 2016.

    ADDRESSES:

    You may submit comments by any of the following methods:

    CFTC Web site: http://comments.cftc.gov. Follow the instructions for submitting comments through the Comments Online process on the Web site.

    Mail: Christopher Kirkpatrick, Secretary of the Commission, Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st Street NW., Washington, DC 20581.

    Hand Delivery/Courier: Same as Mail, above.

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

    Please submit your comments using only one of these methods.

    All comments must be submitted in English, or if not, accompanied by an English translation. Comments will be posted as received to http://www.cftc.gov. You should submit only information that you wish to make available publicly. If you wish the Commission to consider information that you believe is exempt from disclosure under the Freedom of Information Act, a petition for confidential treatment of the exempt information may be submitted according to the established procedures in § 145.9 of the Commission's regulations, 17 CFR 145.9.

    The Commission reserves the right, but shall have no obligation, to review, pre-screen, filter, redact, refuse or remove any or all of your submission from http://www.cftc.gov that it may deem to be inappropriate for publication, such as obscene language. All submissions that have been redacted or removed that contain comments on the merits of this action will be retained in the public comment file and will be considered as required under the Administrative Procedure Act and other applicable laws, and may be accessible under the Freedom of Information Act.

    FOR FURTHER INFORMATION CONTACT:

    Robert B. Wasserman, Chief Counsel, 202-418-5092, [email protected], Alicia L. Lewis, Special Counsel, 202-418-5862, [email protected], or Andrée Goldsmith, Special Counsel, 202-418-6624, [email protected], Division of Clearing and Risk; David P. Van Wagner, Chief Counsel, 202-418-5481, [email protected], or Riva Spear Adriance, Senior Special Counsel, 202-418-5494, [email protected], Division of Market Oversight, in each case at the Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st Street NW., Washington, DC 20581.

    SUPPLEMENTARY INFORMATION:

    Overview

    The Commission is proposing to amend an order issued on March 28, 2013 pursuant to the authority in section 4(c)(6) of the Act 1 exempting specified electric energy transactions from certain provisions of the CEA and Commission regulations (“RTO-ISO Order”).2 The RTO-ISO Order was issued in response to a consolidated petition from certain regional transmission organizations (“RTOs”) and independent system operators (“ISOs”). The RTO-ISO Order exempted contracts, agreements, and transactions for the purchase or sale of the limited electric energy-related products that are specifically described within the RTO-ISO Order from the provisions of the CEA and Commission regulations, with the exception of the Commission's general anti-fraud and anti-manipulation authority, and scienter-based prohibitions, under CEA sections 2(a)(1)(B), 4(d), 4b, 4c(b), 4o, 4s(h)(1)(A), 4s(h)(4)(A), 6(c), 6(d), 6(e), 6c, 6d, 8, 9, and 13 of the Act, and any implementing regulations promulgated under these sections including, but not limited to, Commission regulations 23.410(a) and (b), 32.4, and part 180.3 The RTO-ISO Order did not specifically note that the exemption contained therein does not apply to actions pursuant to CEA section 22 with respect to those substantive provisions that are excepted from the exemption (i.e. the Excepted Provisions). Although the Commission did not intend to provide an exemption from the private right of action in CEA section 22, the Fifth Circuit held that this was the effect of the RTO-ISO Order. The Commission is thus proposing to amend the text of the RTO-ISO Order to explicitly provide that the RTO-ISO Order does not exempt the entities covered under the RTO-ISO Order from the private right of action found in section 22 of the CEA 4 with respect to the Excepted Provisions (“Proposed Amendment”). A copy of the RTO-ISO Order is available at 78 FR 19880, and on the Commission's Web site at http://www.cftc.gov/idc/groups/public/@lrfederalregister/documents/file/2013-07634a.pdf.

    1 7 U.S.C. 1 et seq.

    2 Final Order in Response to a Petition From Certain Independent System Operators and Regional Transmission Organizations to Exempt Specified Transactions Authorized by a Tariff or Protocol Approved by the Federal Energy Regulatory Commission or the Public Utility Commission of Texas From Certain Provisions of the Commodity Exchange Act Pursuant to the Authority Provided in the Act, 78 FR 19880, Apr. 2, 2013. The RTO-ISO Order was published in the Federal Register on April 2, 2013.

    3 The foregoing provisions are referred to as the “Excepted Provisions.”

    4 7 U.S.C. 25.

    Table of Contents I. Relevant Dodd-Frank Provisions II. Background A. RTO-ISO Order B. Aspire v. GDF Suez C. Southwest Power Pool Proposed Order III. Proposed Amendment A. Private Right of Action Under CEA Section 22 B. Section 4(c) Analysis 1. Overview of CEA Section 4(c) 2. Section 4(c) Determinations IV. Related Matters A. Regulatory Flexibility Act B. Paperwork Reduction Act C. Cost-Benefit Considerations 1. Consideration of Costs and Benefits 2. Consideration of CEA Section 15(a) Factors V. Request for Comment on the Proposed Amendment to the RTO-ISO Order I. Relevant Dodd-Frank Provisions 5

    5 For a fuller discussion, see RTO-ISO Order at 19881-82.

    On July 21, 2010, President Obama signed the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank Act”).6 Title VII of the Dodd-Frank Act amended the CEA and altered the scope of the Commission's exclusive jurisdiction.7 In particular, it expanded the Commission's exclusive jurisdiction, which had included futures traded, executed, and cleared on CFTC-regulated exchanges and clearinghouses, to also cover swaps traded, executed, or cleared on CFTC-regulated exchanges or clearinghouses.8 As a result, the Commission's exclusive jurisdiction now includes swaps as well as futures.

    6See Dodd-Frank Act, Pub. L. 111-203, 124 Stat. 1376 (2010). The text of the Dodd-Frank Act may be accessed at http://www.cftc.gov/ucm/groups/public/@swaps/documents/file/hr4173_enrolledbill.pdf.

    7 Section 722(e) of the Dodd-Frank Act.

    8See 7 U.S.C. 2(a)(1)(A). The Dodd-Frank Act also added section 2(h)(1)(A), which requires swaps to be cleared if required to be cleared and not subject to a clearing exception or exemption. See 7 U.S.C. 2(h)(1)(A).

    The Dodd-Frank Act also added a savings clause that addresses the roles of the Commission, the Federal Energy Regulatory Commission (“FERC”), and state regulatory authorities as they relate to certain agreements, contracts, or transactions traded pursuant to the tariff or rate schedule of an RTO or ISO that has been approved by FERC or the state regulatory authority.9 That savings clause, paragraph (I)(i) of CEA section 2(a)(1), preserves the statutory authority of FERC and state regulatory authorities over agreements, contracts, or transactions entered into pursuant to a tariff or rate schedule approved by FERC or a State regulatory authority, that are (1) not executed, traded, or cleared on an entity or trading facility subject to registration, or (2) executed, traded, or cleared on a registered entity or trading facility owned or operated by an RTO or ISO.10 However, paragraph (I)(ii) of CEA section 2(a)(1) also preserves the Commission's statutory authority over such agreements, contracts, or transactions.11

    9See 7 U.S.C. 2(a)(1)(I).

    10 7 U.S.C. 2(a)(1)(I)(i).

    11See 7 U.S.C. 2(a)(1)(I)(ii).

    The Dodd-Frank Act granted the Commission specific powers to exempt certain contracts, agreements, or transactions from duties otherwise required by statute or Commission regulation by adding, as relevant here, new section 4(c)(6) to the CEA. Section 4(c)(6) provides that the Commission shall, if certain conditions are met, issue exemptions from the “requirements” of the CEA for certain transactions entered into pursuant to a tariff or rate schedule approved or permitted to take effect by FERC or a state regulatory authority.12

    12See 7 U.S.C. 6(c)(6). CEA section 4(c)(6) provides that the Commission shall issue an exemption only if the Commission determines that the exemption would be consistent with the public interest and the purposes of the Act. Moreover, the Commission must act in accordance with 4(c)(1) and 4(c)(2) when issuing an exemption under section 4(c)(6).

    The Commission must act “in accordance with” sections 4(c)(1) and (2) of the CEA when issuing an exemption under section 4(c)(6).13 Section 4(c)(1) grants the Commission the authority to exempt any agreement, contract, or transaction or class of transactions, including swaps, from certain provisions of the CEA, in order to promote responsible economic or financial innovation and fair competition.14 Section 4(c)(2) 15 of the Act further provides that the Commission may not grant exemptive relief unless it determines that: (1) The exemption would be consistent with the public interest and the purposes of the CEA; (2) the transaction will be entered into solely between “appropriate persons” as that term is defined in section 4(c); 16 and (3) the exemption will not have a material adverse effect on the ability of the Commission or any contract market to discharge its regulatory or self-regulatory responsibilities under the CEA.17 In enacting section 4(c), Congress noted that the purpose of the provision is to give the Commission a means of providing certainty and stability to existing and emerging markets so that financial innovation and market development can proceed in an effective and competitive manner.18

    13 7 U.S.C. 6(c)(6).

    14 7 U.S.C. 6(c)(1).

    15 7 U.S.C. 6(c)(2).

    16 Section 4(c)(3) of the CEA further outlines who may constitute an appropriate person for the purpose of a particular 4(c) exemption and includes, as relevant to the RTO-ISO Order: (a) Any person that qualifies for one of ten defined categories of appropriate persons; or (b) such other persons that the Commission determines to be appropriate in light of their financial or other qualifications, or the applicability of appropriate regulatory protections.

    17 7 U.S.C. 6(c)(2).

    18 H.R. Rep. No. 102-978, 102d Cong. 2d Sess., 1992 U.S.C.C.A.N. 3179, 3213 (1992).

    II. Background A. RTO-ISO Order

    On March 28, 2013, the Commission issued the RTO-ISO Order, which exempts specified transactions of particular RTOs and ISOs 19 from certain provisions of the CEA and Commission regulations. The scope of the RTO-ISO Order includes transactions that fall within the definitions of “Financial Transmission Rights,” “Energy Transactions,” “Forward Capacity Transactions,” or “Reserve or Regulation Transactions” 20 (collectively, the “Covered Transactions”) and that are offered or sold in a market administered by one of the petitioning RTOs or ISOs pursuant to a tariff, rate schedule, or protocol that has been approved or permitted to take effect by FERC or PUCT.21 In addition, to be eligible for the exemption in the RTO-ISO Order, all parties to the agreements, contracts, or transactions that are covered by the RTO-ISO Order must be: (1) “Appropriate persons,” as defined in section 4(c)(3)(A) through (J) of the CEA; (2) “eligible contract participants,” as defined in section 1a(18)(A) of the CEA and in Commission regulation 1.3(m); or (3) in the business of (i) generating, transmitting, or distributing electric energy, or (ii) providing electric energy services that are necessary to support the reliable operation of the transmission system.22 To be eligible for the exemption in the RTO-ISO Order, the transactions must comply with all other enumerated terms and conditions in the RTO-ISO Order.23

    19 Six entities (the “Requesting Parties”) jointly filed a petition requesting the exemption provided in the RTO-ISO Order: Midwest Independent Transmission System Operator, Inc. (“MISO”), ISO New England, Inc. (“ISO NE”), and PJM Interconnection, L.L.C. (“PJM”) are RTOs subject to regulation by FERC; California Independent System Operator Corporation (“CAISO”) and New York Independent System Operator, Inc. (“NYISO”) are ISOs subject to regulation by FERC; and the Electric Reliability Council of Texas, Inc. (“ERCOT”) performs the role of an ISO and is subject to regulation by the Public Utility Commission of Texas (“PUCT”). See RTO-ISO Order at 19882.

    20See id. at 19912-13.

    21See id. at 19913. The exemption in the RTO-ISO Order also applies to “any person or class of persons offering, entering into, rendering advice, or rendering other services with respect” to any of the Covered Transactions. See id. at 19912. These entities, including the six Requesting Parties (see supra note 19) are hereinafter referred to collectively as the “Covered Entities.”

    22See id. at 19913-14.

    23See id. at 19912-15.

    In the RTO-ISO Order, the Commission excepted from the exemption the Commission's general anti-fraud and anti-manipulation authority, and scienter-based prohibitions, under CEA sections 2(a)(1)(B), 4(d), 4b, 4c(b), 4o, 4s(h)(1)(A), 4s(h)(4)(A), 6(c), 6(d), 6(e), 6c, 6d, 8, 9, and 13 of the Act, and any implementing regulations promulgated under these sections including, but not limited to, Commission regulations 23.410(a) and (b), 32.4, and part 180.24 The RTO-ISO Order did not discuss the application of CEA section 22 with respect to those substantive provisions that are excepted from the exemption (i.e. the Excepted Provisions).25

    24See id. at 19912.

    25See id.

    B. Aspire v. GDF Suez

    In February 2015, the United States District Court for the Southern District of Texas dismissed a private lawsuit on the ground that the CEA section 22 private right of action was not available to the plaintiffs under the RTO-ISO Order.26 The lawsuit alleged that certain electricity generators in ERCOT's market manipulated the market price of electricity by, among other things, intentionally withholding electricity generation during times of tight supply.27 The suit further alleged that this conduct created artificial and unpredictable prices in the secondary futures markets.28 The claim thus alleged that defendants were manipulating contract prices in the derivatives commodities market in violation of the Act.29 The District Court dismissed the claim, finding that under the RTO-ISO Order, the private right of action in CEA section 22 was “unavailable to [p]laintiffs.” 30 In February 2016, the United States Court of Appeals for the Fifth Circuit affirmed the District Court's ruling.31

    26Aspire Commodities, L.P. v. GDF Suez Energy N. Am., Inc., No. H-14-1111, 2015 WL 500482 (S.D. Tex. Feb. 3, 2015).

    27Id. at *1-*2.

    28Id. at *2.

    29See id.

    30Id. at *5.

    31See Aspire Commodities, L.P. v. GDF Suez Energy N. Am., Inc., No. 15-20125, 2016 WL 758689 (5th Cir. Feb. 25, 2016).

    C. Southwest Power Pool Proposed Order

    Southwest Power Pool (“SPP”) is an RTO subject to regulation by FERC. On October 17, 2013, SPP filed an Exemption Application 32 with the Commission requesting that the Commission exercise its authority under section 4(c)(6) of the CEA 33 and section 712(f) of the Dodd-Frank Act 34 to exempt certain contracts, agreements, and transactions for the purchase or sale of specified electric energy products, that are offered pursuant to a FERC-approved tariff, from most provisions of the Act.35 The relief that SPP requested was substantially similar to the relief the Commission granted in the RTO-ISO Order.36

    32 SPP filed an amended Exemption Application on August 1, 2014. Citations herein to “Exemption Application” are to the amended Exemption Application.

    33 7 U.S.C. 6(c)(6).

    34See section 712(f) of the Dodd-Frank Act.

    35See Exemption Application at 1. SPP was not one of the entities that petitioned for the RTO-ISO Order because SPP did not at that time offer the types of transactions covered by that order. See id. at 7.

    36See id. at 2.

    On May 18, 2015, the Commission issued a proposed order with respect to SPP's Exemption Application (“SPP Proposed Order”).37 The exemptive relief proposed in the SPP Proposed Order was substantially similar to the exemptive relief granted by the Commission in the RTO-ISO Order. Like the RTO-ISO Order, the SPP Proposed Order excepted from the exemption the Commission's general anti-fraud and anti-manipulation authority, and scienter-based prohibitions, under CEA sections 2(a)(1)(B), 4(d), 4b, 4c(b), 4o, 4s(h)(1)(A), 4s(h)(4)(A), 6(c), 6(d), 6(e), 6c, 6d, 8, 9, and 13, and any implementing regulations promulgated thereunder including, but not limited to, Commission regulations 23.410(a) and (b), 32.4, and part 180.38

    37 Notice of Proposed Order and Request for Comment on an Application for an Exemptive Order From Southwest Power Pool, Inc. From Certain Provisions of the Commodity Exchange Act Pursuant to the Authority Provided in Section 4(c)(6) of the Act, 80 FR 29490, May 21, 2015. The SPP Proposed Order was published in the Federal Register on May 21, 2015.

    38 SPP Proposed Order at 29516.

    As proposed, the SPP Proposed Order would not exempt SPP from the private right of action under CEA section 22 for violations of the manipulation, fraud, and scienter-based provisions from which SPP will not be exempted. The Commission explained in the SPP Proposed Order that neither the proposed nor the final RTO-ISO Order discussed, referred to, or mentioned CEA section 22, which provides for private rights of action for damages against persons who violate the CEA, or persons who willfully aid, abet, counsel, induce, or procure the commission of a violation of the Act.39 The Commission explained that by enacting CEA section 22, Congress provided private rights of action as a means for addressing violations of the Act as an alternative or supplement to Commission enforcement action.40 The Commission observed that it would be highly unusual for the Commission to reserve to itself the power to pursue claims for fraud and manipulation—a power that includes the option of seeking restitution for persons who have sustained losses from such violations or a disgorgement of gains received in connection with such violations—while at the same time, without explanation, denying private rights of action and damages remedies for the same violations.41 The Commission stated that if it intended to take such a differentiated approach (i.e., to limit the rights of private persons to bring such claims while reserving to itself the right to bring the same claims), the RTO-ISO Order would have included a discussion or analysis of the reasons therefore.42 The Commission therefore stated that it did not intend to create such a limitation, and that, in the Commission's view, the RTO-ISO Order does not prevent private claims for fraud or manipulation under the CEA.43 The Commission further stated that this view would apply equally to the SPP Proposed Order.44

    39Id. at 29493.

    40Id.

    41Id.

    42Id.

    43Id.

    44Id.

    The public comment period on the SPP Proposed Order ended on June 22, 2015. The Commission received thirteen (13) comment letters on the SPP Proposed Order,45 the majority of which argued that the exemptions contained in the RTO-ISO Order extended to include private claims for fraud and manipulation under section 22 of the CEA, and that the exemption in the final SPP exemptive order should also include those private claims.

    45 All comment letters received in response to the SPP Proposed Order are available through the Commission's Web site at: http://comments.cftc.gov/PublicComments/CommentList.aspx?id=1586.

    III. Proposed Amendment A. Private Right of Action Under CEA Section 22

    Currently, Paragraph 1 of the RTO-ISO Order states that the Commission:

    Exempts, subject to the conditions and limitations specified herein, the execution of the electric energy-related agreements, contracts, and transactions that are specified in paragraph 2 of this Order and any person or class of persons offering, entering into, rendering advice, or rendering other services with respect thereto, from all provisions of the CEA, except, in each case, the Commission's general anti-fraud and anti-manipulation authority, and scienter-based prohibitions, under CEA sections 2(a)(1)(B), 4(d), 4b, 4c(b), 4o, 4s(h)(1)(A), 4s(h)(4)(A), 6(c), 6(d), 6(e), 6c, 6d, 8, 9, and 13, and any implementing regulations promulgated under these sections including, but not limited to, Commission regulations 23.410(a) and (b), 32.4, and part 180.46

    46See RTO-ISO Order at 19912.

    Under the RTO-ISO Order, for those CEA requirements from which the RTOs and ISOs are exempt, it follows that there can be no claim under CEA section 22 with respect to those requirements. The RTO-ISO Order did not specifically note that the exemption contained therein does not apply to actions pursuant to CEA section 22 with respect to the Excepted Provisions.

    In light of the Aspire court ruling discussed above,47 the Commission is proposing to amend the text of the RTO-ISO Order to clarify that the Covered Entities are not exempt from the private right of action in CEA section 22 with respect to the Excepted Provisions. Specifically, the Commission proposes to amend Paragraph 1 of the RTO-ISO Order to read as follows (the additional language is italicized):

    47See supra section II.B.

    Exempts, subject to the conditions and limitations specified herein, the execution of the electric energy-related agreements, contracts, and transactions that are specified in paragraph 2 of this Order and any person or class of persons offering, entering into, rendering advice, or rendering other services with respect thereto, from all provisions of the CEA, except, in each case, the Commission's general anti-fraud and anti-manipulation authority, and scienter-based prohibitions, under CEA sections 2(a)(1)(B), 4(d), 4b, 4c(b), 4o, 4s(h)(1)(A), 4s(h)(4)(A), 6(c), 6(d), 6(e), 6c, 6d, 8, 9, and 13, and any implementing regulations promulgated under these sections including, but not limited to, Commission regulations 23.410(a) and (b), 32.4, and part 180. This exemption also does not apply to actions pursuant to CEA section 22 with respect to the foregoing enumerated provisions. 48

    48 The Commission's Proposed Amendment to the RTO-ISO Order does not alter any of the other terms or conditions of the RTO-ISO Order.

    The Commission believes that the treatment of the section 22 private right of action should be consistent across all RTOs and ISOs.49 The Commission therefore proposes the foregoing amendment to the RTO-ISO Order in order to ensure clarity, and for the additional reasons stated below.

    49 One commenter on the SPP Proposed Order expressed the concern that if the final SPP exemptive order contained preamble language to the effect that SPP would not be exempt from the CEA section 22 private right of action, it would be inconsistent with the RTO-ISO Order. In amending the RTO-ISO Order and finalizing the SPP exemptive order, the Commission will ensure that the language of both orders and both preambles is consistent.

    It has been suggested that preserving the private right of action in CEA section 22 would cause regulatory uncertainty or inconsistent or duplicative regulation. However, the Covered Entities will be subject to the same substantive CEA provisions, including judicial interpretations of those provisions, regardless of whether the plaintiff who brings an action alleging a violation of one of those provisions is the Commission or a private party acting under CEA section 22.50 When such interpretations are necessary in a civil action, the identity of the plaintiff is of little significance. Thus, any potential for conflict among regulators and others or for conflicting judicial interpretations does not depend on whether the plaintiff is a private litigant or the Commission. The Commission also notes that the CFTC frequently participates as amicus curiae in cases where significant interpretive issues arise under the CEA. The existence of a private right of action also is not inconsistent with or detrimental to cooperation between the CFTC and FERC. Therefore, amending the RTO-ISO Order to explicitly preserve the private right of action with respect to fraud and manipulation will not cause regulatory uncertainty or duplicative or inconsistent regulation. Moreover, conflicting judicial interpretations regarding the nature of the Covered Transactions would not affect the jurisdiction of FERC or any relevant state regulatory authority.51

    50 For this reason, the Commission does not believe that the Proposed Amendment to the RTO-ISO Order undermines any reasonable reliance interests on the part of the Covered Entities. The affected parties should have been aware of, and complying with, the CEA provisions on fraud and manipulation whether or not a private plaintiff could sue for violating them, because they knew or should have known that the Commission could bring an action to redress violations of those provisions.

    51 To the extent that a court, during a civil proceeding alleging fraud or manipulation under CEA section 22, deems one of the Covered Transactions to be a swap, such a finding would not affect FERC's or PUCT's authority over the Covered Transactions. Section 2(a)(1)(I)(i) of the CEA provides that nothing in the Act shall limit or affect any statutory authority of FERC or a State regulatory authority with respect to an agreement, contract, or transaction that is entered into pursuant to a tariff or rate schedule approved by FERC or a State regulatory authority and is—(1) not executed, traded, or cleared on a registered entity or trading facility; or (2) executed, traded, or cleared on a registered entity or trading facility owned or operated by an RTO] or ISO.

    By the terms of the RTO-ISO Order, all of the Covered Transactions must be offered or sold pursuant to a Requesting Party's tariff that has been approved or permitted to take effect by FERC or PUCT (which is a state regulatory authority). See RTO-ISO Order at 19913. In addition, the RTO-ISO Order exempts the Covered Entities from registration requirements under the CEA, and the Proposed Amendment does not change that. As a result, none of the Covered Entities is a “registered entity” as defined in CEA section 1a(40). Thus, the Covered Transactions, to the extent they are cleared, would fall within CEA section 2(a)(1)(I)(i)(I). Moreover, to the extent the Covered Transactions are executed or traded on a “trading facility,” any such trading facility would be owned or operated by an RTO or ISO, since the Covered Transactions are offered or sold in a market administered (i.e., owned or operated by) one of the Requesting Parties. As such, the Covered Transactions would fall within CEA section 2(a)(1)(I)(i)(II). Therefore, given the savings clause in CEA section 2(a)(1)(I)(i), nothing in the CEA could limit or otherwise affect FERC's or PUCT's authority over the Covered Transactions, regardless of any judicial finding regarding the nature of the Covered Transactions.

    Second, the private right of action in the CEA is instrumental in protecting the American public, deterring bad actors, and maintaining the credibility of the markets subject to the Commission's jurisdiction. Private claims serve the public interest by empowering injured parties to seek compensation for damages where the Commission lacks the resources to do so on their behalf. Moreover, the prospect of private rights of action serves the public interest by deterring misconduct in and maintaining the integrity of the markets subject to the Commission's jurisdiction.

    Third, the private right of action under CEA section 22 was established by Congress as an integral part of the CEA's enforcement and remedial scheme. The Act grants the Commission various administrative tools to enforce the statute,52 and it also authorizes the Commission to seek redress in court in the form of injunctions, penalties, and restitution for injured parties.53 But Congress deemed those tools insufficient, and, in the Futures Trading Act of 1982, codified an express private right of action because it found that private damages actions are “critical to protecting the public and fundamental to maintaining the creditability of the futures market.” 54 The Federal Power Act (“FPA”), on the other hand, expressly prohibits private rights of action for fraud and manipulation with respect to the purchase or sale of electric energy subject to FERC's jurisdiction.55 The fact that Congress made different judgments with respect to a private right of action in the CEA and the FPA does not persuade the Commission to strip injured parties of their remedy under the CEA, nor does it amount to a conflict between the two statutes. The difference between the two statutes in this respect is by Congress's design, subject to the proviso that the Commission is to issue exemptions where it determines exemptions would be in the public interest.56

    52E.g., 7 U.S.C. 9(4).

    53See 7 U.S.C. 13a-1.

    54 H.R. Rep. No. 97-565, at 57 (1982).

    55See FPA section 222(a), 16 U.S.C. 824v(a) (prohibiting the use of any manipulative or deceptive device or contrivance in connection with the purchase or sale of electric energy or transmission services subject to the jurisdiction of FERC) and FPA section 222(b), 16 U.S.C. 824v(b) (stating that nothing in that section shall be construed to create a private right of action.).

    Under section 306 of the FPA, however, a person or entity may initiate an administrative proceeding with FERC for a violation of the FPA, see 16 U.S.C. 825e, and FERC has ruled that a person or entity may initiate an administrative proceeding alleging market manipulation in violation of 16 U.S.C. 824v. See Blumenthal v. ISO New England Inc., 128 FERC ¶ 61,182, at para. 56 (Aug. 24, 2009).

    56See 7 U.S.C. 6(c)(6).

    Finally, the Commission's preservation of section 22 liability with respect to the Excepted Provisions is consistent with the Commission's actions in prior 4(c) orders. Section 22 establishes liability for any person “who violates” the Act or “who willfully aids, abets, counsels, induces, or procures the commission of a violation” of the Act.57 The beneficiary of an order under section 4(c) does not violate the Act by noncompliance with CEA requirements from which it is exempt. For instance, in a 4(c) order issued in 2011, the Commission granted temporary exemptive relief from certain provisions of the CEA added or amended by Title VII of the Dodd-Frank Act that referenced certain terms that the Commission had not yet defined.58 That order expressly stated that exemption from section 22 liability was “not necessary” because, “[t]o the extent that the Final Order provides exemptive relief under CEA section 4(c) [from certain provisions of the CEA], such exemptive relief would, in effect, preclude a person from succeeding in a private right of action under CEA section 22(a) for a violation of such provisions.” 59 In other words, no private right of action exists for noncompliance with exempted CEA provisions, as such conduct would not “violate[ ]” the Act within the meaning of section 22. On the other hand, exempting the Covered Entities from private liability for violations of CEA requirements with which they must comply—the prohibitions on fraud and manipulation—would not be consistent with the Commission's actions in prior 4(c) exemptive orders.

    57 7 U.S.C. 25(a)(1).

    58 Effective Date for Swap Regulation, 76 FR 42508, Jul. 19, 2011.

    59Id. at 42517.

    Moreover, in prior 4(c) exemptive orders issued by the Commission that reserved anti-fraud and anti-manipulation provisions, the Commission has never reserved its own ability to sue for such behavior while at the same time denying private rights of action for the same conduct.60 In certain instances, the Commission specifically reserved certain substantive CEA provisions prohibiting fraud and manipulation, but did not include section 22 in that list.61 In such cases, however, the orders did not explicitly preserve any means of enforcing those prohibitions, including Commission enforcement actions or private lawsuits. The Commission does not believe that these exemptions were intended to preserve the prohibitions on fraud and manipulation but to eliminate any means of enforcing them. Therefore, the Proposed Amendment, which explicitly clarifies that section 22 is reserved with respect to claims for fraud and manipulation, is consistent with the Commission's treatment of such claims in prior 4(c) exemptive orders.62

    60See, e.g., Exemptive Order for SPDR Gold Futures Contracts, 73 FR 31979, 31979-80, June 5, 2008 (exempting transactions in SPDR gold futures contracts “from those provisions of the Act and the Commission's regulations thereunder that, if the underlying were considered to be a commodity that is not a security, would be inconsistent with the trading and clearing of SPDR gold futures contracts as security futures”); Order: (1) Pursuant to Section 4(c) of the Commodity Exchange Act (a) Permitting Eligible Swap Participants To Submit for Clearing and ICE Clear U.S., Inc. and Futures Commission Merchants To Clear Certain Over-The-Counter Agricultural Swaps and (b) Determining Certain Floor Brokers and Traders To Be Eligible Swap Participants; and (2) Pursuant to Section 4d of the Commodity Exchange Act, Permitting Certain Customer Positions in the Foregoing Swaps and Associated Property To Be Commingled With Other Property Held in Segregated Accounts, 73 FR 77015, 77016 n.4, Dec. 18, 2008 (noting that jurisdiction over the subject transactions was retained for the “provisions of the CEA proscribing fraud and manipulation”); Order Exempting the Trading and Clearing of Certain Products Related to the CBOE Gold ETF Volatility Index and Similar Products, 75 FR 81977, 81979, Dec. 29, 2010 (exempting the trading and clearing of certain products “from the provisions of the CEA and the regulations thereunder, to the extent necessary to permit such products to be so traded and cleared” on SEC-regulated entities).

    With respect to the last 4(c) order listed above, the Commission exempted the trading and clearing of the subject transactions from the CEA only “to the extent necessary” to permit them to be traded and cleared on SEC-regulated entities. The Commission notes that this exemption does not extend to the fraud and manipulation provisions of the CEA because it is not “necessary” to act fraudulently or manipulatively in order to trade and clear such contracts on SEC-regulated entities, nor is exemption from the private right of action for acting fraudulently or manipulatively “necessary” to permit the trading and clearing of such contracts on SEC-regulated entities. Moreover, in all of the orders listed above, specific mention of CEA section 22 was not needed because, to the extent the orders did not provide an exemption from the anti-fraud and anti-manipulation provisions of the CEA, any violation of such provisions would be subject to a private right of action.

    61See, e.g., Exemption for Certain Swap Agreements, 58 FR 5587, 5594, Jan. 22, 1993; Exemption for Certain Contracts Involving Energy Products, 58 FR 21286, 21294, Apr. 20, 1993.

    62 The Commission notes that it has, in two prior 4(c) orders, specifically enumerated section 22 as one of the reserved provisions. See A New Regulatory Framework for Clearing Organizations, 65 FR 78020, 78027, Dec. 13, 2000; A New Regulatory Framework for Multilateral Transaction Execution Facilities, Intermediaries and Clearing Organizations, 65 FR 77962, 77986, Dec. 13, 2000. However, the fact that section 22 was explicitly preserved in two orders but not in others does not provide a counterexample for the proposition that the Commission has never reserved its own ability to sue for fraud and manipulation while at the same time denying private rights of action for the same conduct.

    B. Section 4(c) Analysis 1. Overview of CEA Section 4(c) a. Sections 4(c)(6)(A) and (B)

    As discussed above in section I., the Dodd-Frank Act amended CEA section 4(c) to add sections 4(c)(6)(A) and (B), which provide authority to exempt certain transactions “from the requirements” of the CEA entered into: (a) Pursuant to a tariff or rate schedule approved or permitted to take effect by FERC, or (b) pursuant to a tariff or rate schedule establishing rates or charges for, or protocols governing, the sale of electric energy approved or permitted to take effect by the regulatory authority of the State or municipality having jurisdiction to regulate rates and charges for the sale of electric energy within the State or municipality.63 Indeed, section 4(c)(6) provides that if the Commission determines that the exemption would be consistent with the public interest and the purposes of the Act, the Commission shall issue such an exemption.64 However, any exemption considered under section 4(c)(6)(A) and/or (B) must be done “in accordance with [CEA section 4(c)(1) and (2)].” 65

    63 The exemption language in section 4(c)(6) states that if the Commission determines that the exemption would be consistent with the public interest and the purposes of the Act, the Commission shall, in accordance with paragraphs (1) and (2), exempt from the requirements of this Act an agreement, contract, or transaction that is entered into (A) pursuant to a tariff or rate schedule approved or permitted to take effect by the Federal Energy Regulatory Commission; (B) pursuant to a tariff or rate schedule establishing rates or charges for, or protocols governing, the sale of electric energy approved or permitted to take effect by the regulatory authority of the State or municipality having jurisdiction to regulate rates and charges for the sale of electric energy within the State or municipality; or (C) between entities described in section 201(f) of the Federal Power Act (16 U.S.C. 824(f)).

    64 7 U.S.C. 6(c)(6).

    65 7 U.S.C. 6(c)(6).

    Based on the difference in language between section 4(c)(6), under which the RTO-ISO Order was issued, and section 4(c)(1), the Commission notes that it is not clear that section 4(c)(6) provides the Commission with the authority to exempt the Covered Entities from the private right of action found in section 22. Section 4(c)(1) authorizes the Commission to grant exemptions from the Act's “requirements” or “from any other provision of this Act,” with certain exceptions.66 Section 4(c)(6), by contrast, empowers the Commission to exempt agreements, contracts, or transactions from “requirements” of the Act only. It is not clear that the section 22 private right of action itself is a “requirement” and, therefore, it is not clear that the power to provide an exemption from section 22 is within the scope of the power granted to the Commission by section 4(c)(6).

    66 7 U.S.C. 6(c)(1).

    b. Section 4(c)(1)

    As described above,67 CEA section 4(c)(1) requires that the Commission act by rule, regulation, or order, after notice and opportunity for hearing. It also provides that the Commission may act either unconditionally or on stated terms or conditions or for stated periods and either retroactively or prospectively, or both and that the Commission may provide an exemption from any provisions of the CEA except subparagraphs (C)(ii) and (D) of section 2(a)(1).

    67See supra section I.

    c. Section 4(c)(2)

    As set forth above in section I., CEA section 4(c)(2) requires the Commission to determine that: To the extent an exemption provides relief from any of the requirements of CEA section 4(a), the requirement should not be applied to the agreement, contract or transaction; the exempted agreement, contract, or transaction will be entered into solely between appropriate persons; 68 and the exemption will not have a material adverse effect on the ability of the Commission or any contract market to discharge its regulatory or self-regulatory duties under the CEA.69

    68See 7 U.S.C. 6(c)(2)(B)(i). See also the discussion of CEA section 4(c)(3) below.

    69See 7 U.S.C. 6(c)(2)(B)(ii). CEA section 4(c)(2)(A) also requires that the exemption would be consistent with the public interest and the purposes of the CEA, but that requirement duplicates the requirement of section 4(c)(6).

    d. Section 4(c)(3)

    As explained in section I. above, CEA section 4(c)(3) outlines who may constitute an appropriate person for the purpose of a 4(c) exemption, including as relevant to the RTO-ISO Order: (a) Any person that fits in one of ten defined categories of appropriate persons; or (b) such other persons that the Commission determines to be appropriate in light of their financial or other qualifications, or the applicability of appropriate regulatory protections.70

    70See 7 U.S.C. 6(c)(3). CEA section 4(c)(3) provides that the term “appropriate person” shall be limited to the following persons or classes thereof: (A) A bank or trust company (acting in an individual or fiduciary capacity); (B) A savings association; (C) An insurance company; (D) An investment company subject to regulation under the Investment Company Act of 1940 (15 U.S.C. 80a-1 et seq.); (E) A commodity pool formed or operated by a person subject to regulation under this Act; (F) A corporation, partnership, proprietorship, organization, trust, or other business entity with a net worth exceeding $1,000,000 or total assets exceeding $5,000,000, or the obligations of which under the agreement, contract or transaction are guaranteed or otherwise supported by a letter of credit or keepwell, support, or other agreement by any such entity or by an entity referred to in subparagraph (A), (B), (C), (H), (I), or (K) of this paragraph; (G) An employee benefit plan with assets exceeding $1,000,000, or whose investment decisions are made by a bank, trust company, insurance company, investment adviser registered under the Investment Advisers Act of 1940 (15 U.S.C. 80a-1 et seq.), or a commodity trading advisor subject to regulation under this Act; (H) Any governmental entity (including the United States, any state, or any foreign government) or political subdivision thereof, or any multinational or supranational entity or any instrumentality, agency, or department of any of the foregoing; (I) A broker-dealer subject to regulation under the Securities Exchange Act of 1934 (15 U.S.C. 78a et seq.) acting on its own behalf or on behalf of another appropriate person; (J) A futures commission merchant, floor broker, or floor trader subject to regulation under this Act acting on its own behalf or on behalf of another appropriate person; (K) Such other persons that the Commission determines to be appropriate in light of their financial or other qualifications, or the applicability of appropriate regulatory protections.

    2. Section 4(c) Determinations a. Consistent With the Public Interest and the Purposes of the CEA

    As required by CEA section 4(c)(2)(A), as well as section 4(c)(6), the Commission previously determined that the exemption set forth in the RTO-ISO Order is consistent with the public interest and the purposes of the CEA.71 The Proposed Amendment does not alter the Commission's prior determinations with respect to the public interest and purposes of the CEA, and the Commission proposes to incorporate such prior determinations herein.72

    71See RTO-ISO Order at 19894-95, 19900-02. The Commission's prior determination was based on a number of findings, including that (a) the Covered Transactions have been, and are, subject to a long-standing, regulatory framework for the offer and sale of the Transactions established by FERC or PUCT; (b) the Covered Transactions administered by the RTOs, ISOs, or ERCOT are part of, and inextricably linked to, the organized wholesale electric energy markets that are subject to FERC and PUCT regulation and oversight; (c) the Covered Transactions are entered into primarily by commercial participants that are in the business of generating, transmitting, and distributing electric energy; (d) the Requesting Parties were established for the purpose of providing affordable, reliable electric energy to consumers within their geographic region; (e) the Covered Transactions that take place on the Requesting Parties' markets are overseen by Market Monitoring Units, required by FERC and PUCT to identify manipulation of electric energy on the Covered Entities' markets; (f) the Covered Transactions are inextricably tied to the Requesting Parties' physical delivery of electric energy; (g) the RTO-ISO Order is explicitly limited to Covered Transactions taking place on markets that are monitored by either an independent Market Monitoring Unit, a market administrator (the RTO, ISO, or ERCOT), or both, and a government regulator (FERC or PUCT); (h) the standards set forth in FERC regulation 35.47 appear to achieve goals similar to the regulatory objectives of the Commission's DCO Core Principles, and substantial compliance with such requirements was key to the Commission's determination that the tariffs and activities of the Requesting Parties and supervision by FERC or PUCT are congruent with, and—in the context of the Covered Transactions—sufficiently accomplish, the regulatory objectives of each DCO Core Principle; (i) the Requesting Parties' policies and procedures appear to be consistent with, and to accomplish sufficiently for purposes of the RTO-ISO Order, the regulatory objectives of the DCO Core Principles in the context of the Covered Transactions; and (j) the Requesting Parties' policies and procedures appear to be consistent with, and to accomplish sufficiently for purposes of the RTO-ISO Order, the regulatory objectives of the SEF Core Principles in the context of the Covered Transactions. Id.

    72 The Commission notes that, since the Commission did not intend to provide an exemption from the private right of action in CEA section 22 in the RTO-ISO Order, the RTO-ISO Order did not consider or make any determination that it would be in the public interest to do so.

    In addition, the Commission proposes to determine that the Proposed Amendment to the RTO-ISO Order, which would explicitly preserve the section 22 private right of action with respect to the Excepted Provisions, serves the public interest by helping to deter fraudulent conduct and maintain the credibility of the markets under the Commission's jurisdiction. In the same vein, private civil actions for fraud and manipulation serve the public interest by supplementing the Commission's ability to address the same conduct. Further, the Commission proposes to determine that the Proposed Amendment is consistent with the purposes of the CEA because it will deter and prevent price manipulation or any other disruptions to market integrity.73

    73See 7 U.S.C. 5(b) (listing the purposes of the CEA).

    b. Other 4(c) Determinations

    In the RTO-ISO Order, the Commission made a number of other determinations under CEA section 4(c), including:

    • The Dodd-Frank Act applies to contracts and instruments traded in RTO or ISO markets pursuant to a FERC- or state-approved tariff or rate schedule, subject to the Commission's authority under CEA section 4(c)(6) to exempt contracts, agreements, or transactions traded pursuant to such a tariff or rate schedule upon determining that the exemption would be in the public interest and consistent with the purposes of the CEA; that the exemption would be applied only to agreements, contracts, or transactions that are entered into solely between appropriate persons; and that the exemption will not have a material adverse effect on the ability of the Commission or any contract market to discharge its regulatory or self-regulatory duties under the CEA.74

    74See RTO-ISO Order at 19893-94; see also CEA section 4(c)(6).

    • Due to the FERC or PUCT regulatory scheme and the RTO or ISO market structure already applicable to the Covered Transactions, the linkage between the Covered Transactions and those regulatory schemes, and the unique nature of the market participants that are eligible to rely on the exemption in the RTO-ISO Order, CEA section 4(a) should not apply to the Covered Transactions under the RTO-ISO Order.75

    75See RTO-ISO Order at 19895; see also CEA section 4(c)(2)(A).

    • Eligible contract participants, as defined in section 1a(18)(A) of the CEA and in Commission regulation 1.3(m), are appropriate persons for purposes of the RTO-ISO Order in light of their financial or other qualifications, or the applicability of regulatory protections.76 In addition, a “person who actively participates in the generation, transmission, or distribution of electric energy,” as defined within the RTO-ISO Order, is an appropriate person for purposes of the exemption provided therein.77

    76See RTO-ISO Order at 19896; see also CEA section 4(c)(2)(B)(i).

    77See RTO-ISO Order at 19897; see also CEA section 4(c)(2)(B)(i).

    • The exemption in the RTO-ISO Order for the Covered Transactions would not have a material adverse effect on the Commission's or any contract market's ability to discharge its regulatory function.78

    78See RTO-ISO Order at 19903-04; see also CEA section 4(c)(2)(B)(ii).

    The Proposed Amendment does not alter the Commission's determination with respect to any of the above 4(c) determinations. Therefore, the Commission proposes to incorporate such prior 4(c) determinations, and the findings on which such determinations are based, herein. All transactions that were permitted pursuant to the exemption set forth in the RTO-ISO Order would still be permitted under the RTO-ISO Order with the Proposed Amendment. The only change to the RTO-ISO Order made by the Proposed Amendment is that the Proposed Amendment would provide explicitly an additional means of deterring fraudulent or manipulative conduct—conduct that was already prohibited under the RTO-ISO Order—consistent with the public interest and the purposes of the Act.

    IV. Related Matters A. Regulatory Flexibility Act

    The Regulatory Flexibility Act (“RFA”) requires that the Commission consider whether the Proposed Amendment to the RTO-ISO Order will have a significant economic impact on a substantial number of small entities and, if so, provide a regulatory flexibility analysis respecting the impact.79 In the RTO-ISO Order, the Commission determined that the RTO-ISO Order would not have a significant economic impact on a substantial number of small entities,80 and the RFA analysis in the RTO-ISO Order is still valid. Specifically, the RTOs and ISOs covered by the RTO-ISO Order should not be considered small entities based on the central role they play in the operation of the electronic transmission grid and the creation of organized wholesale electric markets that are subject to FERC and PUCT regulatory oversight,81 analogous to functions performed by DCMs and DCOs, which the Commission has previously determined not to be “small entities.” 82 In addition, the RTO-ISO Order, with the amendment proposed herein, includes entities that qualify as (1) “appropriate persons” pursuant to CEA sections 4(c)(3)(A) through (J), (2) ECPs, as defined in CEA section 1a(18)(A) and Commission regulation 1.3(m), or (3) persons who are in the business of: (i) Generating, transmitting, or distributing electric energy, or (ii) providing electric energy services that are necessary to support the reliable operation of the transmission system. The Commission has previously determined that ECPs are not “small entities” for purposes of the RFA.83 The Commission is of the view that, based on the Commission's existing information about the RTOs' and ISOs' markets, their market participants consist mostly of entities exceeding the thresholds defining “small entities.” 84

    79 5 U.S.C. 601 et seq.

    80See RTO-ISO Order at 19906-07. The RFA analysis in the RTO-ISO Order determined that the Requesting Parties (CAISO, NYISO, PJM, MISO, ISO NE., and ERCOT) are not small entities. See id.

    81 The regulations of the Small Business Administration (“SBA”) define the threshold for a small Electric Bulk Power Transmission and Control entity to be 500 employees. See 13 CFR 121.201 (Sector 22, Subsector 221; NAICS code 221121). FERC has previously determined under this standard that five of the Requesting Parties (CAISO, NYISO, PJM, MISO, and ISO NE) are not small entities. See Settlement Intervals and Shortage Pricing in Markets Operated by Regional Transmission Organizations and Independent System Operators, 80 FR 58393, 58403, Sept. 29, 2015. Additionally, the Commission understands that ERCOT is not a small entity, as defined by SBA's regulations.

    82See RTO-ISO Order at 19906; see also A New Regulatory Framework for Clearing Organizations, 66 FR 45604, 45609, Aug. 29, 2001 (DCOs); Policy Statement and Establishment of Definitions of “Small Entities” for Purposes of the Regulatory Flexibility Act, 47 FR 18618, 18618-19, Apr. 30, 1982 (DCMs).

    83See RTO-ISO Order at 19906; see also Opting Out of Segregation, 66 FR 20740, 20743, Apr. 25, 2001.

    84See RTO-ISO Order at 19907; see also supra note 81.

    Also, the RTO-ISO Order, with the amendment proposed herein, would continue to alleviate the economic impact that the exempt entities, including any small entities that may opt to take advantage of the exemption set forth in the RTO-ISO Order, otherwise would be subjected to by continuing to exempt certain of their transactions from the application of substantive regulatory compliance requirements of the CEA and Commission regulations thereunder. In addition, there is no evidence of any substantial litigation with respect to fraud and manipulation under CEA section 22 in the RTO or ISO markets, particularly against any small entities that opt to take advantage of the exemption set forth in the RTO-ISO Order. Accordingly, the Commission does not expect the RTO-ISO Order, with the Proposed Amendment, to have a significant economic impact on a substantial number of small entities. Therefore, the Chairman, on behalf of the Commission, hereby certifies, pursuant to 5 U.S.C. 605(b), that the exemption set forth in the RTO-ISO Order, with the amendment proposed herein, would not have a significant economic impact on a substantial number of small entities.

    B. Paperwork Reduction Act

    The purposes of the Paperwork Reduction Act of 1995 (“PRA”) 85 are, among other things, to minimize the paperwork burden to the private sector, ensure that any collection of information by a government agency is put to the greatest possible uses, and minimize duplicative information collections across the government. The PRA applies to all information, “regardless of form or format,” whenever the government is “obtaining, causing to be obtained [or] soliciting” information, and includes and requires “disclosure to third parties or the public, of facts or opinions,” when the information collection calls for “answers to identical questions posed to, or identical reporting or recordkeeping requirements imposed on, ten or more persons.” 86

    85 44 U.S.C. 3501 et seq.

    86 44 U.S.C. 3502(3).

    The Commission previously determined that the RTO-ISO Order did not impose any new recordkeeping or information collection requirements, or other collections of information on ten or more persons that require OMB approval.87 The Commission's Proposed Amendment to the RTO-ISO Order does not impose any recordkeeping or information collection requirements, or other collections of information on ten or more persons that require OMB approval.

    87See RTO-ISO Order at 19907-08.

    C. Cost-Benefit Considerations 1. Consideration of Costs and Benefits a. Introduction

    Section 15(a) of the CEA 88 requires the Commission to “consider the costs and benefits” of its actions before promulgating a regulation under the CEA or issuing certain orders. In proposing this amendment to the RTO-ISO Order, the Commission is required by CEA section 4(c)(6) to ensure the same is consistent with the public interest. In much the same way, section 15(a) further specifies that the costs and benefits shall be evaluated in light of five broad areas of market and public concern: (1) Protection of market participants and the public; (2) efficiency, competitiveness, and financial integrity of futures markets; (3) price discovery; (4) sound risk management practices; and (5) other public interest considerations. The Commission considers the costs and benefits resulting from its discretionary determinations with respect to the section 15(a) factors.

    88 7 U.S.C. 19(a).

    As discussed above, the RTO-ISO Order currently exempts contracts, agreements, and transactions for the purchase or sale of the limited electric energy-related products that are specifically described within the RTO-ISO Order from certain provisions of the CEA and Commission regulations, with the exception of the Commission's general anti-fraud and anti-manipulation authority, and scienter-based prohibitions, under CEA sections 2(a)(1)(B), 4(d), 4b, 4c(b), 4o, 4s(h)(1)(A), 4s(h)(4)(A), 6(c), 6(d), 6(e), 6c, 6d, 8, 9, and 13, and any implementing regulations promulgated under these sections including, but not limited to, Commission regulations 23.410(a) and (b), 32.4, and part 180.89 The RTO-ISO Order does not specifically note that the exemption contained therein does not apply to actions pursuant to CEA section 22 with respect to the Excepted Provisions. The Commission is proposing to amend the RTO-ISO Order to clarify that the RTO-ISO Order does not exempt the Covered Entities from the private right of action found in section 22 of the CEA with respect to the Excepted Provisions.90 The Commission's Proposed Amendment to the RTO-ISO Order does not alter any of the other terms or conditions of the RTO-ISO Order.

    89See RTO-ISO Order at 19912.

    90See supra section III.A.

    In the discussion that follows, the Commission considers the costs and benefits of the Proposed Amendment to the RTO-ISO Order to the public and market participants generally, and to the Covered Entities specifically. It also considers the costs and benefits of the Proposed Amendment in light of the public interest factors enumerated in CEA section 15(a).

    b. Proposed Baseline

    The Commission's proposed baseline for consideration of the costs and benefits of the Proposed Amendment to the RTO-ISO Order is the costs and benefits that the public and market participants would experience if the existing RTO-ISO Order is interpreted to exempt market participants from liability under the CEA section 22 private right of action.

    In the discussion that follows, where reasonably feasible, the Commission endeavors to estimate quantifiable dollar costs of the Proposed Amendment to the RTO-ISO Order. The costs and benefits of the Proposed Amendment, however, are not presently susceptible to meaningful quantification. Where it is unable to quantify, the Commission discusses proposed costs and benefits in qualitative terms.

    c. Benefits

    Using the hypothetical baseline described above,91 the Commission notes that preserving the CEA section 22 private right of action with respect to fraud and manipulation will benefit the market because private claims for fraud and manipulation protect market participants and the public generally, as well as the financial markets for electric energy products. Moreover, making the preservation of the CEA section 22 private right of action with respect to fraud and manipulation explicit will benefit the market because it will clarify the scope of the RTO-ISO Order and prevent future uncertainty regarding the availability of the private right of action under CEA section 22 with respect to fraud and manipulation.

    91See supra section IV.C.1.b.

    d. Costs

    Using the hypothetical baseline described above,92 the Commission recognizes that subjecting market participants to the CEA section 22 private right of action with respect to fraud and manipulation may increase legal and compliance costs due to a marginally increased chance of litigation, particularly to the extent that private counsel may pursue litigation based upon private, rather than public, concerns. However, this is a common criticism of private rights of action generally, and the Commission does not believe that such a possibility is a sufficient reason to exempt the Covered Transactions and Covered Entities from the private right of action that Congress explicitly provided for by statute. Thus, the Commission elects to propose to amend the RTO-ISO Order to expressly retain the CEA section 22 private right of action with respect to Excepted Provisions.

    92See supra section IV.C.1.b.

    e. Consideration of Alternatives

    The Commission considered not issuing the Proposed Amendment to the RTO-ISO Order. The Commission considered the uncertainty that has arisen with respect to the scope of the RTO-ISO Order and the availability of a private right of action under the RTO-ISO Order, particularly following the court rulings in the Aspire v. GDF Suez action,93 and proposes to determine that a no-amendment alternative would prolong such uncertainty and thus be contrary to the public interest.

    93See supra section II.B.

    The Commission also considered the costs and benefits of amending the RTO-ISO Order to explicitly exempt the CEA section 22 private right of action with respect to fraud and manipulation. In the absence of the availability of a private right of action to address fraudulent and manipulative conduct, the potential for market disruption would increase since market participants would not be able to address such conduct through private claims. On the other hand, the costs of private litigation would be avoided under this alternative. The Commission has considered these costs and benefits and has declined to elect the alternative of explicitly exempting the Covered Entities from the CEA section 22 private right of action.

    The Commission has considered the costs and benefits of retaining the CEA section 22 private right of action with respect to fraud and manipulation that the Commission determined to except from the RTO-ISO Order, and has elected to propose to amend the RTO-ISO Order to expressly retain the CEA section 22 private right of action with respect to the Excepted Provisions.

    2. Consideration of CEA Section 15(a) Factors a. Protection of Market Participants and the Public

    The Commission believes that the Proposed Amendment, by clarifying the existence of a private right of action with respect to fraud and manipulation, will serve to protect market participants and the public because private actions for fraud and manipulation will help to deter misconduct in and maintain credibility of the markets subject to Commission jurisdiction.

    b. Efficiency, Competitiveness, and Financial Integrity of Futures Markets

    The Commission does not believe that the Proposed Amendment will have an effect on the efficiency, competitiveness, and financial integrity of the futures markets.

    c. Price Discovery

    The Commission does not believe that the Proposed Amendment will have an effect on price discovery.

    d. Sound Risk Management Practices

    The Commission does not believe that the Proposed Amendment will have a material effect on sound risk management practices.

    e. Other Public Interest Considerations

    The Commission does not believe that there are any additional public interest considerations with respect to the Proposed Amendment.

    3. Request for Public Comment on Costs and Benefits

    The Commission invites public comment on its cost-benefit considerations of the Proposed Amendment to the RTO-ISO Order, including the consideration of reasonable alternatives. Commenters are invited to submit any data or other information that they may have quantifying or qualifying the costs and benefits of the proposal with their comment letters.

    V. Request for Comment on the Proposed Amendment to the RTO-ISO Order

    The Commission requests comment on all aspects of its Proposed Amendment to the RTO-ISO Order. In addition, the Commission specifically requests comment on the specific provisions and issues highlighted in the discussion above and on the issues presented in this section. For each comment submitted, please provide a detailed rationale supporting the response.

    1. To the extent there are concerns that explicitly amending the RTO-ISO Order to preserve private claims for fraud and manipulation under CEA section 22 would result in frivolous litigation, the Commission requests comment on the following issues regarding such litigation.

    a. Please provide details as to the specifics of such litigation, including:

    i. What type of entity might sue what other type of entity?

    ii. What are the theories under which such litigation might be brought?

    iii. How might the causes of action in such litigation derive from the enumerated fraud and manipulation provisions of the CEA that are excepted from the RTO-ISO Order?

    b. To the extent there is a concern about an increase in litigation regarding filed rates, how would such litigation survive a motion to dismiss based on the filed rate doctrine? 94

    94See Nantahala Power & Light Co. v. Thornburg, 106 S. Ct. 2349, 2354-57 (1986); Texas Commercial Energy v. TXU Energy, Inc., 413 F.3d 503, 508-10 (5th Cir. 2005).

    2. In a letter submitted to the Commission's Energy and Environmental Markets Advisory Committee, PJM, ERCOT, and CAISO argued that “[a]llowing private actions will undermine the legal certainty provided by the exemptions and potentially could divest FERC and the PUCT of jurisdiction over certain ISO and RTO transactions.” 95 The letter then set forth a hypothetical scenario involving alleged market manipulation in the RTO-ISO markets, and noted that, “[b]ecause the CFTC's jurisdiction over swaps is `exclusive,' if a number of federal circuits hold that [financial transmission rights] or other ISO and RTO transactions are swaps or futures contracts, no other federal or state agency could regulate ISOs and RTOs or their transactions.” 96 The Commission requests comment on how, given the effect of the savings clause in CEA section 2(a)(1)(I)(i), discussed supra in note 51, FERC or PUCT would be divested of jurisdiction in the event of a judicial finding that one or more of the Covered Transactions is a swap. More broadly, the Commission requests comment on how, given that savings clause, preservation of the private right of action would result in regulatory uncertainty and/or inconsistent rulings.

    95 Letter from Paul J. Pantano, Jr. to Christopher Kirkpatrick, Secretary of the Commission, Feb. 24, 2016, at 4, available at http://www.cftc.gov/idc/groups/public/@aboutcftc/documents/file/eemac022516_pantano.pdf.

    96Id. at 5.

    3. To the extent any commenters believe that preserving the private right of action in the RTO-ISO Order will have any other detrimental effect(s) on the RTO-ISO markets or market participants, the Commission requests that such commenters provide a specific and detailed basis for such a conclusion.

    Issued in Washington, DC, on May 9, 2016, by the Commission. Robert N. Sidman, Deputy Secretary of the Commission. Note:

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

    Appendices to Notice of Proposed Amendment To and Request for Comment on the Final Order in Response to a Petition From Certain Independent System Operators and Regional Transmission Organizations To Exempt Specified Transactions Authorized by a Tariff or Protocol Approved by the Federal Energy Regulatory Commission or the Public Utility Commission of Texas From Certain Provisions of the Commodity Exchange Act Pursuant to the Authority Provided in the Act—Commission Voting Summary, Chairman's Statement, and Commissioner's Statement Appendix 1—Commission Voting Summary

    On this matter, Chairman Massad and Commissioner Bowen voted in the affirmative. Commissioner Giancarlo voted in the negative.

    Appendix 2—Statement of Chairman Timothy Massad in Support of the Proposed Amendment to the RTO-ISO Order

    The proposal we have approved today would amend a 2013 CFTC order that exempted specified transactions of six independent system operators (“ISOs”) and regional transmission organizations (“RTOs”) from certain provisions of the Commodity Exchange Act (CEA). That order explicitly did not exempt ISOs and RTOs from the general CEA provisions that prohibit fraud and manipulation. If adopted, the proposed amendment would make clear that this exemption does not prohibit private rights of action for violations of the very same anti-fraud and anti-manipulation provisions that are explicitly reserved in the order.

    Private rights of action have been instrumental in helping to protect market participants and deter bad actors. These actions can also augment the limited enforcement resources of the CFTC, and serve the public interest by allowing harmed parties to seek damages in instances where the Commission lacks the resources to do so on their behalf.

    I appreciate the desire of businesses to have as little regulatory uncertainty as possible. Indeed, providing certainty for market participants is something upon which we're always striving to improve. But we also must make sure there is adequate recourse for those participants.

    Moreover, private rights of action were called for by Congress under the CEA, to ensure wronged parties were provided with an appropriate remedy. Congress determined that the benefits to the public good outweigh any potential costs that may be incurred. Our job is to ensure that determination is properly implemented and enforced.

    While some believe the Commission must have intended to exempt ISOs from private rights of action in the original order because it did not specifically preserve them, the proposal points out that it would be unusual for the Commission to have such an intention and say nothing about it, given that it expressly excluded general anti-fraud and anti-manipulation authority from the exemption. Regardless, we should decide the issue now on the merits. The proposal invites comment from all market participants and members of the public.

    Finally, let me say that we are giving this proposal careful thought and consideration. We want to balance the value of regulatory certainty with the need to make sure that there is adequate recourse for market participants. We have heard from market participants in a number of venues, including a February meeting of the Energy and Environmental Markets Advisory Committee, and in other requests for comment. And we have tried to incorporate those concerns into the discussion of this proposal. This Notice of Proposed Amendment poses a number of specific questions that seek further detail with respect to the concerns we have heard from market participants. I encourage all interested parties to carefully consider these questions, and provide the Commission with your feedback.

    I thank all those who have already provided us with the benefit of their perspective, as well as the CFTC staff and my fellow Commissioners for their work on this proposal. I look forward to hearing more as the comment period transpires.

    Appendix 3—Statement of Dissent by Commissioner J. Christopher Giancarlo

    I dissent from the proposed amendment to the final RTO-ISO Order issued by the Commission in 2013.

    For over three years, U.S. power market participants have been operating in reliance on the RTO-ISO Order. They have trusted in the reasonable, unambiguous understanding that transactions covered by the Order are exempt from all provisions of the Commodity Exchange Act (“CEA or Act”) except for those specifically enumerated as reserved (the “Reserved Provisions”). They have relied on the plain language of the RTO-ISO Order that “[e]xempts . . . the execution of [specified] electric energy-related agreements, contracts and transactions . . . and any person or class of persons offering, entering into, rendering advice or rendering other services with respect thereto, from all provisions of the CEA except, in each case, the Commission's general anti-fraud and anti-manipulation authority, and scienter-based prohibitions . . . ” 1 Too bad for them.

    1 RTO-ISO Order, 78 FR 19880, 19912 (Apr. 2, 2013) (emphasis added) (referring to CEA sections 2(a)(1)(B), 4(d), 4b, 4c(b), 4o, 4s(h)(1)(A), 4s(h)(4)(A), 6(c), 6(d), 6(e), 6c, 6d, 8, 9, and 13).

    Today's proposal manages to simultaneously toss legal certainty to the wind and threaten the household budgets of low and middle-income ratepayers by permitting private lawsuits in heavily regulated markets that are at the heart of the U.S. economy.

    By this action, the Commission contends that its silence with respect to section 22 of the CEA should be interpreted as evincing its intention all along to retain a private right of action for violations of the Reserved Provisions and that the proposed addition of section 22 to that list is nothing more than a technical clarification.

    With all due respect, the Commission's position is disingenuous. It flies in the face of well-accepted legal precedent established by the U.S. Supreme Court,2 and was soundly rejected recently by the courts in the Aspire litigation.3

    2 Under well-accepted canons of construction, when a general rule is stated, “[but] there are enumerated exceptions[,] `additional exceptions are not to be implied . . . .' ” In re Condor Ins. Ltd., 601 F3d 319, 324 (5th Cir. 2010) (quoting Andrus v. Glover Constr. Co., 446 U.S. 608, 616-17 (1980)). This is a well-settled application of the canon expressio unius est exclusio alterius, which provides that when some provisions are listed, but other related provisions are omitted, courts infer “that items not mentioned were excluded by deliberate choice, not inadvertence.” Barnhart v. Peabody Coal Co., 537 U.S. 149, 168 (2003). Moreover, the Supreme Court has explained that ordinarily, silence does not convey any meaning, much less the potential for sweeping liability. See Cmty. For Creative Non-Violence v. Reid, 490 U.S. 730, 749 (1989) (“Ordinarily, Congress' silence is just that—silence.”).

    3Aspire Commodities, L.P. v. GDF Suez Energy N. Am., Inc., No. H-14-1111, 2015 WL 500482 (S.D. Tex. Feb. 3, 2015), aff'd, No. 15-20125, 2016 WL 758689 (5th Cir. Feb. 25, 2016).

    Of course, the Commission is free to change its mind and amend final orders through the notice and comment process, as it proposes to do now. Still, by taking this action the Commission is introducing a disturbing precedent regarding the legal certainty of its orders.4 In particular, the Commission's proposal to change the scope of the RTO-ISO Order, based not on any change in facts or circumstances but on a legal fiction that it intended to reserve section 22 all along, calls into question the legal certainty of all other section 4(c) orders in which the Commission failed to discuss or reserve the applicability of section 22 for violations of the Act or regulations reserved for itself.5 Commission orders should not be amended, expanded or withdrawn absent a change in facts or circumstances or the law.

    4 The Supreme Court has cautioned that when an administrative agency changes its mind, which the Commission has clearly done here—its claim of clarification notwithstanding—it must be mindful of reliance interests that regulated persons have formed in the interim. FCC v. Fox Television Stations, Inc., 556 U.S. 502, 514-16 (2009) (citing Smiley v. Citibank (South Dakota), N.A., 517 U.S. 735, 742 (1996)).

    5 It is not unusual for the Commission to reserve its anti-fraud or anti-manipulation authority without also reserving section 22; the Commission has done so in the past. See, e.g., A New Regulatory Framework for Clearing Organizations, 65 FR 78020, 78025, 78027 (Dec. 13, 2000) (specifically enumerating section 22 as reserved for reserved provisions of the Act and regulations); A New Regulatory Framework for Multilateral Transaction Execution Facilities, Intermediaries and Clearing Organizations, 65 FR 77962, 77976, 77986 (Dec. 13, 2000) (specifically enumerating section 22 as reserved for reserved violations of the Act and regulations in connection with transactions executed of Derivatives Transaction Execution Facilities and as not reserved for certain purposes); Effective Date for Swap Regulation, 76 FR 42508, 42517 (Jul. 19, 2011) (discussing exemption from section 22); see also RTO-ISO Comment Letter at 6-7, n.11 (Jun. 22, 2015). To remove all doubt, treating the failure to reserve section 22 as intentional is consistent with Commission practice. As the 4(c) orders cited above demonstrate, when the Commission intends to reserve section 22, it has had little trouble either specifically enumerating section 22 as reserved, or including a discussion of its applicability or inapplicability.

    It can be argued that private claims may serve the public interest by empowering injured parties to seek compensation for damages where the Commission lacks the resources to do so on their behalf. Yet, the extensive regulation and monitoring of RTOs and ISOs significantly obviates the policing role of private suits in these markets. The six entities covered by the RTO-ISO Order are subject to extensive and effective regulation by the RTO-ISO's primary regulator (the Federal Energy Regulatory Commission, “FERC” or the Public Utility Commission of Texas, “PUCT”), and overseen by an independent market monitor responsible to the RTO-ISO's primary regulator. As the FERC has explained, RTOs and ISOs operate not only transmission facilities, but also markets for trading electric energy among utilities, and the “RTO and ISO markets and transmission services are tightly integrated and are regulated to a greater extent than other commodity markets.” 6 The FERC has explained that these entities are “critical components in carrying out the FERC's statutory responsibilities,” 7 and the FERC therefore regulates them “more extensively than other public utilities.” 8

    6 FERC Comment Letter on Proposed Order and Request for Comment on Petition of ISOs and RTOs for Exemption of Specified Transactions from Certain Provisions of the CEA, at 2 (Sept. 27, 2012).

    7Id. at 1.

    8Id. at 2.

    I believe that with the protection provided by such extensive regulatory oversight the Commission should not permit private litigation. Doing so would result in too many cooks in the proverbial oversight kitchen. It will lead to conflicting outcomes depriving market participants of the regulatory certainty and coherence Congress intended when it directed the CFTC and the FERC to apply “their respective authorities in a manner so as to ensure effective and efficient regulation in the public interest,” to resolve conflicts concerning their overlapping jurisdiction and to avoid, “to the extent possible, conflicting or duplicative regulation.” 9 Moreover, exempting the transactions from section 22 would promote the congressionally-directed harmony between the CEA and the Federal Power Act (“FPA”), which expressly disclaims any private right of action for manipulative or deceptive trade practices.10

    9 15 U.S.C. 8308(a)(1).

    10 16 U.S.C. 824v (2012).

    Disallowing private suits under the CEA does not leave persons alleging harm from fraudulent or manipulative practices without recourse. The CFTC may seek restitution on their behalf.11 In addition, section 306 of the FPA permits the filing of private complaints with the FERC for any violation of the FPA.12

    11 7 U.S.C. 13a-1(d)(3) (2012).

    12See Joint Trade Associations, Comment Letter on Proposed Order and Request for Comment on an Application for an Exemptive Order From Southwest Power Pool, Inc. From Certain Provisions of the Commodity Exchange Act Pursuant to the Authority Provided in Section 4(c)(6) of the Act, at 7 n.17 (Jun. 22, 2015) (citations omitted); see also PUCT Comment Letter at 6-7 (Jun. 22, 2015) (explaining that market participants regulated by the Electric Reliability Council of Texas (“ERCOT”) aggrieved by the activities of other market participants may bring complaints for adjudication by ERCOT, whose decisions are subject to review by PUCT and the Texas state courts).

    Aside from the injustice of changing the scope of the RTO-ISO Order three years after it was issued, subjecting the transactions covered by the Order to private suits under the CEA undermines carefully considered policy designed to promote affordable and reliable electricity for millions of American consumers. The defendants' conduct in the Aspire litigation was explicitly permitted under Texas law and related PUCT regulations.13 Indeed, the plaintiffs in Aspire brought suit only after they tried and failed to convince the PUCT to change its rules permitting the conduct at issue.14

    13Aspire, 2015 WL 500482, at *1; see also 16 Tex. Admin. Code 25.504(c) (2006). I take no position on the specific PUCT Rule at issue, other to note that it appears to be backed by a broad consensus of Texas electricity stakeholders and vigorously defended by the PUCT. See Aspire, 2016 WL 758689, Brief for PUCT as Amicus Curiae, at 27-29.

    14Aspire, 2015 WL 500482, at *1.

    In my view, the Aspire case is a telling example of the problems with subjecting RTO-ISO transactions to private section 22 litigation. Even if a firm is only involved in the generation or transmission of electric power (and not in the derivatives markets), it may nonetheless be subject to extensive litigation—lasting years, exacting significant sums in defense costs, subjecting ratepayers to potential damages and distracting the firm from its core business—all for merely complying with standards crafted and enforced by its primary regulator.15 Moreover, subjecting electricity providers to private litigation will deprive them of the certainty that the RTO-ISO Order was supposed to provide; if private section 22 claims are allowed, it will be impossible for market participants to be certain which FERC or state rules governing power markets can be adhered to without incurring liability. I fail to see how permitting these kinds of suits would “promote responsible economic or financial innovation and fair competition” that the Commission's exemptive authority is supposed to provide.16

    15See PUCT Comment Letter on Proposed Order and Request for Comment on an Application for an Exemptive Order From Southwest Power Pool, Inc. From Certain Provisions of the Commodity Exchange Act Pursuant to the Authority Provided in Section 4(c)(6) of the Act, at 7-10 (Jun. 22, 2014) (describing the Aspire litigation and its potential deleterious effects on the RTO-ISO markets).

    16 7 U.S.C. 6(c); see also Feb. 25, 2016 Energy and Environmental Markets Advisory Committee Meeting, transcript at 21-70 (discussing the consequences for consumers and rate payers that would flow from permitting private rights of action against RTO-ISO participants).

    Indeed, permitting these suits is in tension with long-standing jurisprudence disallowing private litigants from collaterally attacking a rate, tariff, protocol and/or rule approved or permitted to take effect by the PUCT and/or the FERC. Courts have regularly relied on the so-called “filed rate doctrine,” which deprives them of jurisdiction to hear otherwise valid private rights of action where such action seeks to undermine or attack “any `filed rate'—that is, one approved by the governing regulatory agency—[because such a rate] is per se reasonable and unassailable in judicial proceedings brought by ratepayers.” 17

    17Tex. Commercial Energy v. TXU Energy, 413 F.3d 503, 508 (5th Cir. 2005 (quoting Wegoland, Ltd. v. NYNEX Corp., 27 F.3d 17, 18 (2d Cir. 1994) (barring otherwise valid antitrust law claim on the basis of the filed-rate doctrine based on PUCT oversight over the relevant electricity market).

    Here, the Commission dismisses concerns that preserving the section 22 private right of action may cause regulatory uncertainty or inconsistent or duplicative regulation by arguing that the same result could occur if the CFTC were to bring enforcement actions for violations of the Reserved Provisions. This is a concern, to be sure. But the CFTC may bring suit only after an affirmative vote of a majority of Commissioners and in accordance with its Memorandum of Understanding with the FERC under which staff of the CFTC and the FERC have agreed to consult each other on matters of mutual interest and overlapping jurisdiction.18 The CFTC would therefore be far likelier than a private plaintiff to consider the impact an action for violating the CEA could have on the regulatory policy of co-equal regulators operating in their primary field. Furthermore, unlike private plaintiffs, the CFTC would have a thorough appreciation of a potential defendant's positions in derivatives markets and access to a potential defendant's positions in the cash markets, ensuring that only cases of true merit would be brought. One would expect the CFTC to conduct an extensive investigation and carefully consider any impact an action for CEA violations would have on electricity regulation before bringing suit. I certainly will. As commenters have pointed out, private parties—who may be interested primarily in winning a cash award and/or securing attorneys' fees—will not consider the matter so broadly.

    18 Memorandum of Understanding between the FERC and the CFTC (Jan. 2, 2014), http://www.cftc.gov/idc/groups/public/@newsroom/documents/file/cftcfercjmou2014.pdf.

    In conclusion, adding section 22 to the list of Reserved Provisions is a serious misstep. At a time of stagnant wage growth, today's proposal may needlessly subject millions of American ratepayers to higher utility bills as a result of the almost certain increase in litigation, court costs and settlement damages. Permitting private rights of action in the heavily regulated RTO-ISO markets is in great tension with the congressional command that the CFTC, the FERC and where applicable, state regulators, work to ensure effective, efficient regulation that provides the RTO-ISO market participants with legal certainty.

    As such, I emphatically dissent from the proposal.

    [FR Doc. 2016-11385 Filed 5-13-16; 8:45 am] BILLING CODE 6351-01-P
    BUREAU OF CONSUMER FINANCIAL PROTECTION [Docket No: CFPB-2016-0021] Agency Information Collection Activities: Submission for OMB Review; Comment Request AGENCY:

    Bureau of Consumer Financial Protection.

    ACTION:

    Notice and request for comment.

    SUMMARY:

    In accordance with the Paperwork Reduction Act of 1995 (PRA), the Consumer Financial Protection Bureau (Bureau) is proposing to renew the Office of Management and Budget (OMB) approval for an existing information collection titled, “Application Process for Designation of Rural Area under Federal Consumer Financial Law.”

    DATES:

    Written comments are encouraged and must be received on or before June 15, 2016 to be assured of consideration.

    ADDRESSES:

    You may submit comments, identified by the title of the information collection, OMB Control Number (see below), and docket number (see above), by any of the following methods:

    Electronic: http://www.regulations.gov. Follow the instructions for submitting comments.

    OMB: Office of Management and Budget, New Executive Office Building, Room 10235, Washington, DC 20503 or fax to (202) 395-5806. Mailed or faxed comments to OMB should be to the attention of the OMB Desk Officer for the Bureau of Consumer Financial Protection.

    Please note that comments submitted after the comment period will not be accepted. In general, all comments received will become public records, including any personal information provided. Sensitive personal information, such as account numbers or social security numbers, should not be included.

    FOR FURTHER INFORMATION CONTACT:

    Documentation prepared in support of this information collection request is available at www.reginfo.gov (this link active on the day following publication of this notice). Select “Information Collection Review,” under “Currently under Review”, use the dropdown menu “Select Agency” and select “Consumer Financial Protection Bureau” (recent submissions to OMB will be at the top of the list). The same documentation is also available at http://www.regulations.gov. Requests for additional information should be directed to the Consumer Financial Protection Bureau, (Attention: PRA Office), 1700 G Street, NW., Washington, DC 20552, (202) 435-9575, or email: [email protected] Please do not submit comments to this email box.

    SUPPLEMENTARY INFORMATION:

    Title of Collection: Application Process for Designation of Rural Area under Federal Consumer Financial Law.

    OMB Control Number: 3170-0061.

    Type of Review: Extension without change of a currently approved collection.

    Affected Public: Private sector (banks and credit unions).

    Estimated Number of Respondents: 1.

    Estimated Total Annual Burden Hours: 5.

    Abstract: Section 89002 of the HELP Rural Communities Act (Pub. L. 114-94) requires the Bureau to establish an application process under which a person may apply to have an area designated by the Bureau as a rural area for purposes of a Federal consumer financial law. On March 3, 2016, the Bureau published a Final rule in the Federal Register (81 FR 11099) which sets forth the procedure for making this application and requires the applicant to submit information identifying the area for which the request is made, and the justification for granting the area rural status. While the rule specifies what information is to be included, it does not specify to the form or format of the information.

    Request for Comments: The Bureau issued a 60-day Federal Register notice on February 18, 2016 (81 FR 8179). Comments were solicited and continue to be invited on: (a) Whether the collection of information is necessary for the proper performance of the functions of the Bureau, including whether the information will have practical utility; (b) The accuracy of the Bureau's estimate of the burden of the collection of information, including the validity of the methods and the assumptions used; (c) Ways to enhance the quality, utility, and clarity of the information to be collected; and (d) Ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval. All comments will become a matter of public record.

    Dated: May 10, 2016. Darrin A. King, Paperwork Reduction Act Officer, Bureau of Consumer Financial Protection.
    [FR Doc. 2016-11425 Filed 5-13-16; 8:45 am] BILLING CODE 4810-AM-P
    BUREAU OF CONSUMER FINANCIAL PROTECTION [Docket No. CFPB-2016-0022] Agency Information Collection Activities: Comment Request AGENCY:

    Bureau of Consumer Financial Protection.

    ACTION:

    Notice and request for comment.

    SUMMARY:

    In accordance with the Paperwork Reduction Act of 1995 (PRA), the Consumer Financial Protection Bureau (Bureau) is requesting to renew the Office of Management and Budget (OMB) approval for an existing information collection titled, “Evaluation of Financial Empowerment Training Program.”

    DATES:

    Written comments are encouraged and must be received on or before July 15, 2016 to be assured of consideration.

    ADDRESSES:

    You may submit comments, identified by the title of the information collection, OMB Control Number (see below), and docket number (see above), by any of the following methods:

    Electronic: http://www.regulations.gov. Follow the instructions for submitting comments.

    Mail: Consumer Financial Protection Bureau (Attention: PRA Office), 1700 G Street, NW., Washington, DC 20552.

    Hand Delivery/Courier: Consumer Financial Protection Bureau (Attention: PRA Office), 1275 First Street NE., Washington, DC 20002.

    Please note that comments submitted after the comment period will not be accepted. In general, all comments received will become public records, including any personal information provided. Sensitive personal information, such as account numbers or Social Security numbers, should not be included.

    FOR FURTHER INFORMATION CONTACT:

    Documentation prepared in support of this information collection request is available at www.regulations.gov. Requests for additional information should be directed to the Consumer Financial Protection Bureau, (Attention: PRA Office), 1700 G Street NW., Washington, DC 20552, (202) 435-9575, or email: [email protected] Please do not submit comments to this mailbox.

    SUPPLEMENTARY INFORMATION:

    Title of Collection: Evaluation of Financial Empowerment Training Program.

    OMB Control Number: 3170-0038.

    Type of Review: Extension with change of a currently approved collection.

    Affected Public: Individuals, government social services entities, and not-for-profit institutions.

    Estimated Number of Respondents: 15,750.

    Estimated Total Annual Burden Hours: 10,338.

    Abstract: The Bureau's Office of Financial Empowerment (Empowerment) is responsible for developing strategies to improve the financial capability of low-income and economically vulnerable consumers, such as consumers who are unbanked or underbanked, those with thin or no credit file, and households with limited savings. To address the needs of these consumers, Empowerment has developed the Your Money, Your Goals toolkit and training program. These resources equip frontline staff and volunteers in a range of organizations to provide relevant and effective information, tools, and technical assistance designed to improve the financial outcomes and capability of these vulnerable consumers. The Bureau seeks to renew approval of the information collection plan (ICP) to collect qualitative data related to evaluating the effectiveness of this toolkit, collateral materials, and training program. The proposed collections will focus on evaluating: (1) Your Money, Your Goals training practices, toolkit, and collateral materials in enhancing the ability of frontline staff and volunteers to inform and educate low-income consumers about managing their finances; (2) and to assess the scope of workshop participants' use of the resources with the people they serve. The Bureau expects to collect qualitative data through paper-based and web-based surveys.

    Request for Comments: Comments are invited on: (a) Whether the collection of information is necessary for the proper performance of the functions of the Bureau, including whether the information will have practical utility; (b) The accuracy of the Bureau's estimate of the burden of the collection of information, including the validity of the methods and the assumptions used; (c) Ways to enhance the quality, utility, and clarity of the information to be collected; and (d) Ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval. All comments will become a matter of public record.

    Dated: May 10, 2016. Darrin A. King, Paperwork Reduction Act Officer, Bureau of Consumer Financial Protection.
    [FR Doc. 2016-11424 Filed 5-13-16; 8:45 am] BILLING CODE 4810-AM-P
    BUREAU OF CONSUMER FINANCIAL PROTECTION Supervisory Highlights: Winter 2016 AGENCY:

    Bureau of Consumer Financial Protection.

    ACTION:

    Supervisory Highlights; notice.

    SUMMARY:

    The Bureau of Consumer Financial Protection (CFPB) is issuing its tenth edition of its Supervisory Highlights. In this issue, the CFPB shares findings from recent examinations in the areas of student loan servicing, remittances, mortgage origination, debt collection, and consumer reporting. This issue also shares important updates to past fair lending settlements reached by the CFPB. As in past editions, this report includes information about recent public enforcement actions that resulted, at least in part, from our supervisory work. Finally, the report recaps recent developments to the CFPB's supervision program, such as the release of updated fair lending examination procedures and guidance documents in the areas of credit reporting, in-person debt collection, and preauthorized electronic fund transfers.

    DATES:

    The Bureau released this edition of the Supervisory Highlights on its Web site on March 8, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Christopher J. Young, Managing Senior Counsel and Chief of Staff, Office of Supervision Policy, 1700 G Street NW., 20552, (202) 435-7408.

    SUPPLEMENTARY INFORMATION:

    1. Introduction

    The Consumer Financial Protection Bureau (CFPB or Bureau) is committed to a consumer financial marketplace that is fair, transparent, and competitive, and that works for all consumers. One of the tools the CFPB uses to further this goal is the supervision of bank and nonbank institutions that offer consumer financial products and services. In this tenth edition of Supervisory Highlights, the CFPB shares recent supervisory observations in the areas of consumer reporting, debt collection, mortgage origination, remittances, student loan servicing, and fair lending. One of the Bureau's goals is to provide information that enables industry participants to ensure their operations remain in compliance with Federal consumer financial law. The findings reported here reflect information obtained from supervisory activities completed during the period under review as captured in examination reports or supervisory letters. In some instances, not all corrective actions, including through enforcement, have been completed at the time of this report's publication.

    The CFPB's supervisory activities have either led to or supported three recent public enforcement actions, resulting in $52.75 million in consumer remediation and other payments and an additional $8.5 million in civil money penalties. The Bureau also imposed other corrective actions at these institutions, including requiring improved compliance management systems (CMS). In addition to these public enforcement actions, Supervision continues to resolve violations using non-public supervisory actions. When Supervision examinations determine that a supervised entity has violated a statute or regulation, Supervision directs the entity to implement appropriate corrective measures, including remediation of consumer harm when appropriate. Recent supervisory resolutions have resulted in restitution of approximately $14.3 million to more than 228,000 consumers. Other corrective actions have included, for example, furnishing corrected information to consumer reporting agencies, improving training for employees to prevent various law violations, and establishing and maintaining required policies and procedures.

    This report highlights supervision work generally completed between September 2015 and December 2015, though some completion dates may vary. Any questions or comments from supervised entities can be directed to [email protected]

    2. Supervisory Observations

    Summarized below are some recent examination observations in consumer reporting, debt collection, mortgage origination, remittances, student loan servicing, and fair lending. As the CFPB's Supervision program progresses, we will continue to share positive practices found in the course of examinations (see sections 2.2.1, 2.4.4, and 2.5.1), as well as common opportunities for improvement.

    One such common area for improvement is the accuracy of information about consumers that is supplied to consumer reporting agencies. As discussed in previous issues, credit reports are vital to a consumer's access to credit; they can be used to determine eligibility for credit, and how much consumers will pay for that credit. Given this, the accuracy of information furnished by financial institutions to consumer reporting agencies is of the utmost importance. As in the last issue of Supervisory Highlights, this issue shares observations regarding the furnishing of consumer information across a number of product areas (see sections 2.1.1, 2.1.2, 2.1.4, 2.2.1 and 2.5.5).

    2.1 Consumer Reporting

    CFPB examiners conducted one or more reviews of compliance with furnisher obligations under the Fair Credit Reporting Act (FCRA) and its implementing regulation, Regulation V, at depository institutions. The reviews focused on (i) entities furnishing information (furnishers) to nationwide specialty consumer reporting agencies (NSCRAs) that specialize in reporting in connection with deposit accounts and (ii) NSCRAs themselves.

    2.1.1 Furnisher Failure To Have Reasonable Policies and Procedures Regarding Information Furnished to NSCRAs

    Regulation V requires companies that furnish information to consumer reporting companies to establish and implement reasonable written policies and procedures regarding the accuracy and integrity of the information they furnish. Whether policies and procedures are reasonable depends on the nature, size, complexity, and scope of each furnisher's activities. Examiners found that while one or more furnishers had policies and procedures generally pertaining to FCRA furnishing obligations, they failed to have policies and procedures addressing the furnishing of information related to deposit accounts. One or more furnishers also lacked processes or policies to verify data furnished through automated internal systems. For example, one or more furnishers established automated systems to inform NSCRAs when an account was paid-in-full and when the account balance reached zero. But the furnishers did not have controls to check whether such information was actually furnished. To correct this deficiency, Supervision directed one or more furnishers to establish and implement policies and procedures to monitor the automated functions of its deposit furnishing processes.

    2.1.2 Furnisher Failure To Promptly Update Outdated Information

    The FCRA requires furnishers that regularly and in the ordinary course of business furnish information to consumer reporting agencies to promptly update information they determine is incomplete or inaccurate. Examiners found that one or more such furnishers of deposit account information failed to correct and update the account information they had furnished to NSCRAs and/or did not institute reasonable policies and procedures regarding accuracy, including prompt updating of outdated information. When consumers paid charged-off accounts in full, one or more furnishers would update their systems of records to reflect the payment, but would not update the change in status from “charged-off” to “paid-in-full” and send the update to the NSCRAs. One or more furnishers also required consumers to call the entity to request updated furnishing information when they made final payments on settlement accounts. If a consumer did not call, furnishing on accounts settled-in-full were not updated to the NSCRAs. Not updating an account to paid-in-full or settled-in-full status could adversely affect consumers' attempts to establish new deposit or checking accounts. Supervision directed one or more furnishers to update the furnishing for all impacted accounts.

    2.1.3 NSCRAs Ensuring Data Quality

    Supervision conducted examinations of one or more NSCRAs to assess their efforts to ensure data quality in their consumer reports. Examiners noted that one or more NSCRAs had internal inconsistencies in linking certain identifying information (e.g., Social Security numbers and last names) to consumer records associated with negative involuntary account closures, such as checking account closures for fraud or account abuse. These inconsistencies in some cases resulted in incorrect information being placed in consumers' files. Based on the weaknesses identified, Supervision directed one or more NSCRAs to develop and implement internal processes to monitor, detect, and prevent the association of account closures to incorrect consumer profiles, and to notify affected consumers.

    2.1.4 NSCRA Oversight of Furnishers

    Examiners reviewed one or more NSCRAs, focusing on their various systems and processes used to oversee and approve furnishers. They found that one or more NSCRAs had weaknesses in their systems and processes for credentialing of furnishers before the furnishers were allowed to supply consumer information to an NSCRA. Specifically, examiners found that one or more NSCRAs did not always follow their own policies and procedures for issuing credentials to furnishers and did not implement a timeframe for furnishers to submit NSCRA-required documentation during the credentialing process. In addition, one or more NSCRAs failed to maintain documentation adequate under their policies and procedures to demonstrate the steps that were taken to approve a furnisher after the initial credentialing process. Supervision directed one or more NSCRAs to strengthen their oversight and establish documented policies and procedures for the timely tracking of credentialing and re-credentialing of furnishers.

    2.2 Debt Collection

    The Supervision program covers certain bank and nonbank creditors who originate and collect their own debt, as well as the larger nonbank third-party debt collectors. During recent examinations, examiners observed a beneficial practice that involved using exception reports provided by consumer reporting agencies (CRAs) to improve the accuracy and integrity of information furnished to CRAs. However, examiners also identified several violations of the Fair Debt Collection Practices Act (FDCPA), including failing to honor consumers' requests to cease communication, and using false, deceptive or misleading representations or means regarding garnishment.

    2.2.1 Use of Exception Reports by Furnishers To Reduce Errors in Furnished Information

    Banks and nonbanks that engage in collections activity and that furnish information about consumers' debts to CRAs must comply with the FCRA and Regulation V. As noted above, furnishers must establish and implement reasonable written policies and procedures regarding the accuracy and integrity of the information that they furnish to a CRA. CRAs routinely provide or make available exception reports to furnishers. These exception reports identify for furnishers the specific information a CRA has rejected from the furnisher's data submission to the CRA, and thus has not been included in a consumer's credit file. The reports also provide information that a furnisher can use to understand why the furnished information was rejected. In some circumstances, these rejections may help identify mechanical problems in transmitting data or potential inaccuracies of the information the furnisher attempted to furnish.

    In responding to a matter requiring attention requiring one or more entities engaging in collections activities to enhance policies and procedures to ensure proper and timely identification of information rejected by the CRAs, one or more entities enhanced its policies and procedures regarding the utilization of exception reports to resolve rejected information. Examiners found that the one or more entities reviewed and corrected rejections related to errors in consumer names, updated name and address information through customer outreach, and met regularly with the CRAs to discuss the exception reports and to identify patterns in rejections. As a result of these efforts, one or more entities had a significant reduction in errors and exceptions, which led to greater accuracy in the information furnished to CRAs.

    2.2.2 Cease-Communication Requests

    Under section 805(c) of the FDCPA, when consumers notify a debt collector in writing that they refuse to pay a debt or that they wish the debt collector to cease further communication with them, the debt collector must, with certain exceptions, cease communication with the consumer with respect to the debt. Examiners determined that one or more debt collectors failed to honor some consumers' written requests to cease communication. The failures resulted from system data migration errors and from mistakes during manual data entry. In some instances, the debt collectors had not properly coded the accounts to prevent further calls. In other instances, debt collectors changed the accounts back to “active” status, allowing further communications to be made. Supervision directed one or more debt collectors to improve training for their employees on how to identify and properly handle cease-communication requests.

    2.2.3 False, Deceptive or Misleading Representations Regarding Garnishment

    Under section 807 of the FDCPA, a debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt. Examiners determined that one or more debt collectors used false, deceptive, or misleading representations or means regarding administrative wage garnishment when performing collection services of defaulted student loans for the Department of Education. The debt collectors threatened garnishment against certain borrowers who were not eligible for garnishment under the Department of Education's guidelines. The debt collectors also gave borrowers inaccurate information about when garnishment would begin, creating a false sense of urgency. Supervision directed one or more debt collectors to conduct a root-cause analysis of what led their employees to make these statements and to improve training to prevent such statements in the future.

    2.3 Mortgage Origination

    During the period covered by this report, the Title XIV rules were the focus of mortgage origination examinations. In addition, these examinations evaluated compliance for other applicable Federal consumer financial laws as well as evaluating entities' compliance management systems. Findings from examinations within this period demonstrate, with some exceptions, general compliance with the Title XIV rules. Exceptions include, for example, the absence of written policies and procedures at depository institutions required under the loan originator rule. Examiners also found certain deficiencies in compliance management systems, as discussed below.

    2.3.1 Failure To Maintain Written Policies and Procedures Required by the Loan Originator Rule

    The loan originator rule under Regulation Z requires depository institutions to establish and maintain written policies and procedures for loan originator activities, which specifically cover prohibited payments, steering, qualification requirements, and identification requirements. In one or more examinations, depository institutions violated this provision by failing to maintain such written policies and procedures. In most of these cases, examiners found violations of one or more related substantive provisions of the rule. For example, one or more institutions did not provide written policies and procedures—a violation itself—and violated the rule by failing to comply with the requirement to include the loan originator's name and Nationwide Multistate Licensing System and Registry identification on loan documents. In these instances, examiners determined that the failure to have written policies and procedures covering identification requirements was a violation of the rule and Supervision directed one or more institutions to establish and maintain the required written policies and procedures.

    2.3.2 Deficiencies in Compliance Management Systems

    At one or more institutions, examiners concluded that a weak compliance management system allowed violations of Regulations X and Z to occur. For example, one or more supervised entities failed to allocate sufficient resources to ensure compliance with Federal consumer financial law. As a result, these entities were unable to institute timely corrective-action measures, failed to maintain adequate systems, and had insufficient preventive controls to ensure compliance and the correct implementation of established policies and procedures. Supervision notified the entities' management of these findings, and corrective action was taken to improve the entities' compliance management systems.

    2.4 Remittances

    The CFPB's amendments to Regulation E governing international money transfers (or remittances) became effective on October 28, 2013. Regulation E, Subpart B (or the Remittance Rule) provides new protections, including disclosure requirements, and error resolution and cancellation rights to consumers who send remittance transfers to other consumers or businesses in a foreign country. The amendments implement statutory requirements set forth in the Dodd-Frank Act.

    The CFPB began examining large banks for compliance with the Remittance Rule after the effective date, and, in December 2014, the Bureau gained supervisory authority over certain nonbank remittance transfer providers pursuant to one of its larger participant rules. The CFPB's examination program for both bank and nonbank remittance providers assesses the adequacy of each entity's CMS for remittance transfers. These reviews also check for providers' compliance with the Remittance Rule and other applicable Federal consumer financial laws. Below are some recent findings from Supervision's remittance transfer examination program.

    In all cases where examiners found violations of the Remittance Rule, Supervision directed entities to make appropriate changes to compliance management systems to prevent future violations and, where appropriate, to remediate consumers for harm they experienced.

    2.4.1 Compliance Management Systems

    Overall, remittance transfer providers examined by Supervision have implemented changes to their CMS to address compliance with the Remittance Rule. But for some providers, CMS is in the early stages of development and weaknesses were noted. At both bank and nonbank remittance transfer providers, boards of directors and management have dedicated some resources to comply with the Remittance Rule, and have updated policies and procedures, complaint management and training programs to cover this area. But some providers did not implement these changes until sometime after the effective date of the Remittance Rule. Moreover, examiners found implementation gaps or systems issues, some of which were not addressed by pre-implementation testing and post-implementation monitoring and audit. For example, examiners found that failure by one or more remittance transfer providers to conduct adequate testing of their systems led to consumers receiving inaccurate disclosures or, in some instances, no disclosures at all. At some nonbank remittance transfer providers, Supervision found weaknesses in the oversight of agents/service providers, consumer complaint response, and compliance audit.

    2.4.2 Violations of the Remittance Rule

    The Remittance Rule requires that providers of remittance transfers give their customers certain disclosures before (i.e., a prepayment disclosure) and after (i.e., a receipt) the customer pays for the remittance transfer. The prepayment disclosure must include, among other things, the amount to be transferred; front-end fees and taxes; the applicable exchange rate; covered third-party fees (if applicable); the total amount to be received by the designated recipient; and a disclaimer that the total amount received by the designated recipient may be less than disclosed due to recipient bank fees and foreign taxes. The receipt includes all the information on the prepayment disclosure and additional information, including the date the funds will be available, disclosures on cancellation, refund and error resolution rights, and whom to contact with issues related to the transfer. In lieu of separate disclosures, a provider can provide a combined disclosure when it would otherwise provide a prepayment disclosure and a proof of payment when it would otherwise provide a receipt.

    Examiners noted the following violations at one or more providers:

    • Providing incomplete, and in some instances, inaccurate disclosures • Failing to adhere to the regulatory timeframes (typically three business days) for refunding cancelled transactions • Failing to communicate the results of error investigations at all or within the required timeframes, or communicating the results to an unauthorized party instead of the sender; and • Failing to promptly credit consumers' accounts (for amounts transferred and fees) when errors occurred.

    The Remittance Rule requires that certain disclosures be given to consumers orally in transactions conducted orally and entirely by telephone. Examiners have also cited various violations of the rule related to oral disclosures. The Remittance Rule further requires disclosures in each of the foreign languages that providers principally use to advertise, solicit, or market remittance transfer services, or in the language primarily used by the sender to conduct the transaction, provided that the sender uses the language that is principally used by the remittance transfer provider to advertise, solicit, or market remittance transfer services. Compliance with the Remittance Rule's foreign language requirements has generally been adequate, though Supervision has cited one or more providers for failing to give oral disclosures and/or written results of investigations in the appropriate language.

    2.4.3 Deceptive Representations

    One or more remittance providers made deceptive statements leaving consumers with a false impression regarding the conditions placed on designated recipients in order to access transmitted funds. Supervision directed one or more entities to review their marketing materials and make the necessary changes to cease these deceptive representations.

    2.4.4 Zero-Money-Received Transactions

    At one or more remittance transfer providers, examiners observed transactions in which the provider disclosed to consumers that the recipients would receive zero dollars after fees were deducted. In some cases, consumers completed these transactions after receiving disclosures indicating that no funds would be received. When examiners informed providers of these transactions, multiple providers took voluntary proactive steps to alter their systems to either provide consumers with an added warning to ensure they understood the possible result of the transaction, or simply prevent these transactions from being completed. While not a violation of the Remittance Rule, the CFPB is continuing to gather information about transactions with this possible outcome.

    2.5 Student Loan Servicing

    In September of last year, the Bureau released joint principles of student loan servicing together with the Departments of Education and Treasury as a framework to improve student loan servicing practices, promote borrower success and minimize defaults. We are committed to ensuring that student loan servicing is consistent, accurate and actionable, accountable, and transparent. The Bureau has made it a priority to take action against companies that are engaging in illegal servicing practices. To that end, supervising the student loan servicing market has therefore been a priority for the Supervision program. Our ongoing supervisory program has already touched a significant portion of the student loan servicing market, and industry members who service student loans would be well served by carefully reviewing the findings described below.

    The CFPB continues to examine entities servicing both Federal and private student loans, primarily assessing whether entities have engaged in unfair, deceptive, or abusive acts or practices prohibited by the Dodd-Frank Act. As in all applicable markets, Supervision also reviews student loan servicers' practices related to furnishing of consumer information to CRAs for compliance with the FCRA and its implementing regulation, Regulation V. In the Bureau's student loan servicing examinations, examiners have identified a number of positive practices, as well as several unfair acts or practices, and Regulation V violations.

    2.5.1 Improved Student Loan Payment Allocation and Loan Modification Practices at Some Servicers

    As described in previous editions of Supervisory Highlights, examiners have found UDAAPs relating to payment allocation among multiple student loans in a borrower's account. However, examiners have also found that one or more servicers have adopted payment allocation policies for overpayments designed to be more beneficial to consumers by minimizing interest expense. For example, one or more servicers allocated payments exceeding the total monthly payment on the account by allocating the excess funds to the loan with the highest interest rate. These servicers also clearly explained the allocation methodology to consumers, communicated that consumers can provide instructions on allocating overpayments, and provided mechanisms for providing these instructions, so that borrowers could choose to allocate excess funds in a different manner if they'd like.

    Several reports of the CFPB Student Loan Ombudsman have noted that some private student loan borrowers have complained that they were not being offered repayment plans or loan modifications to assist them when they were struggling to make payments. In light of that, Supervision notes that it has observed reasonable borrower work-out plans at some private student loan servicers, suggesting that providing this kind of assistance is feasible.

    2.5.2 Auto-Default

    Some private student loan promissory notes contain “whole loan due” clauses. In general, these clauses provide that if certain events occur, such as a consumer's bankruptcy or death, the loan will be accelerated and become immediately due. If the consumer does not satisfy the accelerated loan, the servicer will place the loan in default. This practice is sometimes referred to as an “auto-default.”

    Examiners determined that one or more servicers engaged in an unfair practice in violation of the Dodd-Frank Act relating to auto-default. When a private student loan had a borrower and a cosigner, one or more servicers would auto-default both borrower and cosigner if either filed for bankruptcy. These auto-defaults were unfair where the whole loan due clause was ambiguous on this point because reasonable consumers would not likely interpret the promissory notes to allow their own default based on a co-debtor's bankruptcy. Further, one or more servicers did not notify either co-debtor that the loan was placed in default. Some consumers only learned that a servicer placed the loan in a default status when they identified adverse information on their consumer reports, the servicer stopped accepting loan payments, or they were contacted by a debt collector.

    Supervision directed one or more servicers to immediately cease this practice. Additionally, since the CFPB's April 2014 report first highlighted auto-defaults as a concern, some companies have voluntarily ceased the practice.

    2.5.3 Failure To Disclose Impact of Forbearance on Cosigner Release Eligibility

    In one or more examinations, examiners determined that servicers committed unfair practices by failing to disclose a significant adverse consequence of forbearance. For some private student loans, a borrower's use of forbearance can delay, or permanently foreclose, the cosigner release option agreed to in the contract. Examiners found that one or more servicers committed an unfair practice by not disclosing this potential consequence when borrowers applied for forbearance. Consumers are at risk of substantial injury when, as a result of forbearance, the ability to release a cosigner is delayed or foreclosed. As a result of these findings, examiners directed one or more servicers to improve the content of its communications regarding the impact that forbearance use has on the availability of cosigner release.

    2.5.4 Servicing Conversion Errors Costing Borrowers Money

    Multiple loan owners have their loans serviced by student loan servicers. When ownership of student loans changes but the servicer continues to service the account, a servicer may need to “convert” the account to reflect the new loan owner. Similar conversions might be necessary when other major changes are made to the account (like the identity of the primary borrower). At one or more servicers, examiners found unfair practices connected to these conversions. Examiners found that, during a loan conversion process, one or more servicers used inaccurate interest rates that exceeded the rate for which the consumer was liable under the promissory note instead of using the correct interest rate information to update the relevant loan records. Examiners found this to be an unfair practice, and Supervision directed one or more servicers that committed this unfair practice to implement a plan to reimburse all affected consumers.

    2.5.5 Furnishing and Regulation V

    Compliance with the FCRA and Regulation V remains a top priority in the CFPB's student loan servicing examinations. Regulation V requires companies that furnish information on consumers to CRAs to establish and implement reasonable written policies and procedures regarding the accuracy and integrity of the information they furnish. Whether policies and procedures are reasonable depends on the nature, size, complexity, and scope of the entity's furnishing activities. Servicers and other furnishers must consider the guidelines in Appendix E to 12 CFR 1022 in developing their policies and procedures and incorporate those guidelines that are appropriate.

    Many student loan servicers have extensive furnishing operations, sending information on millions of consumers to CRAs every month. During one or more student loan servicing examinations, examiners found one or more servicers that did not have any written policies and procedures regarding the accuracy and integrity of information furnished to the CRAs. Examiners also found policies and procedures that were insufficient to meet the obligations imposed by Regulation V. For example, examiners found:

    • Policies and procedures that do not reference one another so that it is difficult to determine which policy or procedure applies;

    • Policies and procedures that do not contemplate record retention, internal controls, audits, testing, third party vendor oversight, or the technology used to furnish information to CRAs; and

    • Policies and procedures that lack sufficient detail on employee training.

    In light of the extensive nature, size, complexity, and scope of the furnishing activities, examiners found that these policies and procedures were not reasonable according to Regulation V. Supervision directed one or more servicers to enhance their policies and procedures regarding the accuracy and integrity of information furnished to CRAs, including by addressing the conduct described in the bullets listed above.

    2.6 Fair Lending 2.6.1 Updates: Fair Lending Enforcement Settlement Administration Ally Financial Inc. and Ally Bank

    On December 19, 2013, working in close coordination with the DOJ, the CFPB ordered Ally Financial Inc. and Ally Bank (Ally) to pay $80 million in damages to harmed African-American, Hispanic, and Asian and/or Pacific Islander borrowers. This public enforcement action represented the Federal Government's largest auto loan discrimination settlement in history.

    On January 29, 2016, harmed borrowers participating in the settlement were mailed checks by the Ally settlement administrator, totaling $80 million, plus interest. The Bureau found that Ally had a policy of allowing dealers to increase or “mark up” consumers' risk-based interest rates, and paying dealers from those markups, and that the policy lacked adequate controls or monitoring. As a result, the Bureau found that between April 2011 and December 2013, this markup policy resulted in African-American, Hispanic, Asian and Pacific Islander borrowers paying more for auto loans than similarly situated non-Hispanic white borrowers.

    In the summer and fall of 2015, the Ally settlement administrator contacted potentially eligible borrowers to confirm their eligibility and participation in the settlement. To be eligible for a payment, a borrower must have:

    • Obtained an auto loan from Ally between April 2011 and December 2013;

    • Had at least one borrower on the loan who was African-American, Hispanic, Asian or Pacific Islander; and

    • Been overcharged.

    Through that process, the settlement administrator identified approximately 301,000 eligible, participating borrowers and co-borrowers who were overcharged as a result of Ally's discriminatory markup policy during the relevant time period, representing approximately 235,000 loans.

    In addition to the $80 million in settlement payments for consumers who were overcharged between April 2011 and December 2013, and pursuant to its continuing obligations under the terms of the orders, Ally recently paid approximately $38.9 million to consumers that Ally determined were both eligible and overcharged on auto loans issued during 2014.

    Additional information regarding this public enforcement action can be found in the Summer 2014 edition of Supervisory Highlights.

    Synchrony Bank, formerly known as GE Capital Retail Bank

    On June 19, 2014, the CFPB, as part of a joint enforcement action with the DOJ, ordered Synchrony Bank, formerly known as GE Capital, to provide $169 million in relief to about 108,000 borrowers excluded from debt relief offers because of their national origin, in violation of ECOA. This public enforcement action represented the Federal Government's largest credit card discrimination settlement in history.

    In the course of administering the settlement, Synchrony Bank identified additional consumers who have a mailing address in Puerto Rico or who indicated a preference to communicate in Spanish and were excluded from these offers. Synchrony Bank provided a total of approximately $201 million in redress including payments, credits, interest, and debt forgiveness to approximately 133,463 eligible consumers. This amount includes approximately $4 million of additional redress based on the bank's identification of additional eligible consumers. Redress to consumers in the Synchrony matter was completed as of August 8, 2015. Additional information regarding this enforcement action can be found in the Fall 2014 edition of Supervisory Highlights.

    3. Remedial Actions 3.1 Public Enforcement Actions

    The Bureau's supervisory activities resulted in or supported the following public enforcement actions.

    3.1.1 EZCORP, Inc.

    On December 16, 2015, the CFPB announced a consent order with EZCORP, Inc., a short-term, small-dollar lender, for illegal debt collection practices, some of which were initially discovered during the course of a Bureau examination. These practices related to in-person collection visits at consumers' homes or workplaces, risking disclosing the existence of consumers' debt to unauthorized third parties, falsely threatening consumers with litigation for non-payment of debts, misrepresenting consumers' rights, and unfairly making multiple electronic withdrawal attempts from consumer accounts which caused mounting bank fees. EZCORP violated the Electronic Fund Transfer Act and the Dodd-Frank Act's prohibition against unfair or deceptive acts or practices.

    EZCORP will refund $7.5 million to 93,000 consumers, pay a $3 million civil money penalty, and stop collection of remaining payday and installment loan debts owed by roughly 130,000 consumers. The consent order also bars EZCORP from future in-person debt collection. In addition, the CFPB issued an industry-wide warning about potentially unlawful conduct during in-person collections at homes or workplaces.

    3.1.2 Fifth Third Bank

    On September 28, 2015, the CFPB resolved an action with Fifth Third Bank (Fifth Third) that requires Fifth Third to change its pricing and compensation system by substantially reducing or eliminating discretionary markups to minimize the risks of discrimination. On that same date, the DOJ filed a complaint and proposed consent order in the U.S. District Court for the Southern District of Ohio addressing the same conduct. That consent order was entered by the court on October 1, 2015. The CFPB found and the DOJ alleged that Fifth Third's past practices resulted in thousands of African-American and Hispanic borrowers paying higher interest rates than similarly-situated non-Hispanic white borrowers for their auto loans. The consent orders require Fifth Third to pay $18 million in restitution to affected borrowers.

    As of the second quarter of 2015, Fifth Third was the ninth largest depository auto loan lender in the United States and the seventeenth largest auto loan lender overall. As an indirect auto lender, Fifth Third sets a risk-based interest rate, or “buy rate,” that it conveys to auto dealers. Fifth Third then allows auto dealers to charge a higher interest rate when they finalize the transaction with the consumer. This is typically called “discretionary markup.” Markups can generate compensation for dealers while giving them the discretion to charge similarly-situated consumers different rates. Fifth Third's policy permitted dealers to mark up consumers' interest rates as much as 2.5% during the period under review.

    From January 2013 through May 2013, the Bureau conducted an examination that reviewed Fifth Third's indirect auto lending business for compliance with ECOA and Regulation B. On March 6, 2015, the Bureau referred the matter to the DOJ. The CFPB found and the DOJ alleged that Fifth Third's indirect lending policies resulted in minority borrowers paying higher discretionary markups, and that Fifth Third violated ECOA by charging African-American and Hispanic borrowers higher discretionary markups for their auto loans than non-Hispanic white borrowers without regard to the creditworthiness of the borrowers. The CFPB found and the DOJ alleged that Fifth Third's discriminatory pricing and compensation structure resulted in thousands of minority borrowers from January 2010 through September 2015 paying, on average, over $200 more for their auto loans.

    The CFPB's administrative consent order and the DOJ's consent order require Fifth Third to reduce dealer discretion to mark up the interest rate to a maximum of 1.25% for auto loans with terms of five years or less, and 1% for auto loans with longer terms, or move to non-discretionary dealer compensation. Fifth Third is also required to pay $18 million to affected African-American and Hispanic borrowers whose auto loans were financed by Fifth Third between January 2010 and September 2015. The Bureau did not assess penalties against Fifth Third because of the bank's responsible conduct, namely the proactive steps the bank is taking that directly address the fair lending risk of discretionary pricing and compensation systems by substantially reducing or eliminating that discretion altogether. In addition, Fifth Third Bank must hire a settlement administrator who will contact consumers, distribute the funds, and ensure that affected borrowers receive compensation. The CFPB will release a consumer advisory with contact information for the settlement administrator once a settlement administrator is named.

    3.1.3 M&T Bank, as Successor to Hudson City Savings Bank

    On September 24, 2015, the CFPB and the DOJ filed a joint complaint against Hudson City Savings Bank (Hudson City) alleging discriminatory redlining practices in mortgage lending and a proposed consent order to resolve the complaint. The complaint alleges that from at least 2009 to 2013, Hudson City illegally redlined in violation of the Equal Credit Opportunity Act (ECOA) by providing unequal access to credit to neighborhoods in New York, New Jersey, Connecticut, and Pennsylvania. The DOJ also alleged that Hudson City violated the Fair Housing Act, which also prohibits discrimination in residential mortgage lending. Specifically, the complaint alleges that Hudson City structured its business to avoid and thereby discourage prospective borrowers in majority-Black-and-Hispanic neighborhoods from accessing mortgages. The consent order requires Hudson City to pay $25 million in direct loan subsidies to qualified borrowers in the affected communities, $2.25 million in community programs and outreach, and a $5.5 million penalty. This represents the largest redlining settlement in history as measured by such direct subsidies. On November 1, 2015, Hudson City was acquired by M&T Bank Corporation, and Hudson City was merged into Manufacturers Banking and Trust Company (M&T Bank), with M&T Bank as the surviving institution. As the successor to Hudson City, M&T Bank is responsible for carrying out the terms of the Consent Order.

    Hudson City was a federally-chartered savings association with 135 branches and assets of $35.4 billion and focused its lending on the origination and purchase of mortgage loans secured by single-family properties. According to the complaint, Hudson City illegally avoided and thereby discouraged consumers in majority-Black-and-Hispanic neighborhoods from applying for credit by:

    • Placing branches and loan officers principally outside of majority-Black-and-Hispanic communities;

    • Selecting mortgage brokers that were mostly located outside of, and did not effectively serve, majority-Black-and-Hispanic communities;

    • Focusing its limited marketing in neighborhoods with relatively few Black and Hispanic residents; and

    • Excluding majority-Black-and-Hispanic neighborhoods from its credit assessment areas.

    The consent order which was entered by the court on November 4, 2015, requires Hudson City to pay $25 million to a loan subsidy program that will offer residents in majority-Black-and-Hispanic neighborhoods in New Jersey, New York, Connecticut, and Pennsylvania mortgage loans on a more affordable basis than otherwise available from Hudson City; spend $1 million on targeted advertising and outreach to generate applications for mortgage loans from qualified residents in the affected majority-Black-and-Hispanic neighborhoods; spend $750,000 on local partnerships with community-based or governmental organizations that provide assistance to residents in majority-Black-and-Hispanic neighborhoods; and spend $500,000 on consumer education, including credit counseling and financial literacy. In addition to the monetary requirements, the decree orders Hudson City to open two full-service branches in majority-Black-and-Hispanic neighborhoods, expand its assessment areas to include majority-Black-and-Hispanic communities, assess the credit needs of majority-Black-and-Hispanic communities, and develop a fair lending compliance and training program.

    3.2 Non-Public Supervisory Actions

    In addition to the public enforcement actions above, recent supervisory activities have resulted in approximately $14.3 million in restitution to more than 228,000 consumers. These non-public supervisory actions generally have been the product of CFPB ongoing supervision and/or targeted examinations, often involving either examiner findings or self-reported violations of Federal consumer financial law. Recent non-public resolutions were reached in the areas of deposits, debt collection, and mortgage origination.

    4. Supervision Program Developments 4.1 Examination Procedures 4.1.1 Updated ECOA Baseline Review Modules

    On October 30, 2015, the CFPB published an update to the ECOA baseline review modules, which are part of the CFPB Supervision and Examination Manual. Examination teams use the ECOA baseline review modules to evaluate how institutions' compliance management systems identify and manage fair lending risks under ECOA. The procedures have been reorganized into five modules: Fair Lending supervisory history; Fair Lending compliance management system; and modules on Fair Lending risks related to origination, servicing, and underwriting models. Examination teams will use the second module, “Fair Lending compliance management system,” to evaluate compliance management as part of in-depth ECOA targeted reviews. The fifth module, “Fair Lending risks related to models,” is a new addition that examiners will use to review models that supervised financial institutions may use. The ECOA baseline review modules are consistent with and cross-reference the FFIEC interagency Fair Lending examination procedures. They can be utilized to evaluate fair lending risk at any supervised institution and in any product line.

    When using the modules to conduct an ECOA baseline review, CFPB examination teams review an institution's fair lending supervisory history, including any history of fair lending risks or violations previously identified by the CFPB or any other Federal or state regulator. Examination teams collect and evaluate information about an entity's fair lending compliance program, including board of director and management participation, policies and procedures, training materials, internal controls and monitoring and corrective action. In addition to responses obtained pursuant to information requests, examination teams may also review other sources of information, including any publicly available information about the entity as well as information obtained through interviews with institution staff or supervisory meetings with an institution.

    4.2 Recent CFPB Guidance

    The CFPB is committed to providing guidance on its supervisory priorities to industry and members of the public.

    4.2.1 Bulletin on Furnisher Fair Credit Reporting Act (FCRA) Obligation To Have Reasonable Written Policies and Procedures

    On February 3, 2016, the CFPB issued a bulletin 1 to emphasize the obligation of furnishers under the FCRA and its implementing Regulation V to establish and implement reasonable written policies and procedures regarding the accuracy and integrity of information relating to consumers that they furnish to CRAs. The supervisory experience of the Bureau suggests that some financial institutions are not compliant with their obligations under Regulation V with regard to furnishing to specialty CRAs. This obligation, which has been required under Regulation V since July 2010, applies to furnishing to all CRAs, including furnishing to specialty CRAs, such as the furnishing of deposit account information to CRAs. The bulletin emphasizes that furnishers must have policies and procedures that meet this requirement with respect to all CRAs to which they furnish.

    1 Published in the Federal Register on February 4, 2016 (81 FR 5992).

    4.2.2 Bulletin on In-Person Collection of Consumer Debt

    Bulletin 2015-07, released on December 16, 2015, notes that both first-party and third-party debt collectors may run a heightened risk of committing unfair acts or practices in violation of the Dodd-Frank Act when they conduct in-person debt collection visits, including to a consumer's workplace or home. An act or practice is unfair under the Dodd-Frank Act when it causes or is likely to cause substantial injury to consumers which is not reasonably avoidable by consumers and is not outweighed by countervailing benefits to consumers or to competition. With respect to substantial injury, the bulletin explains that depending on the facts and circumstances, these visits may cause or be likely to cause substantial injury to consumers. For example, in-person collection visits may result in third parties such as consumers' co-workers, supervisors, roommates, landlords, or neighbors learning that the consumers have debts in collection, which could harm the consumer's reputation and, with respect to in-person collection at a consumer's workplace, result in negative employment consequences.

    In addition, depending on the facts and circumstances, in-person collection visits may result in substantial injury to consumers even when there is no risk that the existence of the debt in collections will be disclosed to third parties. For example, a consumer who is not allowed to have visitors at work may suffer adverse employment consequences as a result of these visits, regardless of whether there is a risk of disclosure to third parties. Further, if the likely or actual consequence of the visits is to harass the consumer, an in-person collection visit may also be likely to cause substantial injury to the consumer.

    Finally, the bulletin also notes that third-party debt collectors and others subject to the FDCPA engaging in in-person collection visits risk violating certain provisions of the FDCPA, such as section 805(b) of the FDCPA's prohibition on communicating with third parties in connection with the collection of any debt (subject to certain exceptions).

    4.2.3 Bulletin on Requirements for Consumer Authorizations for Preauthorized Electronic Fund Transfers

    On November 23, 2015, the CFPB released bulletin 2015-06, which reminds entities of their obligations under the Electronic Fund Transfer Act (EFTA) and its implementing regulation, Regulation E, when obtaining consumer authorizations for preauthorized electronic fund transfers (EFTs) from a consumer's account. The bulletin explains that oral recordings obtained over the phone may authorize preauthorized EFTs under Regulation E provided that these recordings also comply with the E-Sign Act. Further, the bulletin outlines entities' obligations to provide a copy of the terms of preauthorized EFT authorizations to consumers, summarizes the current law, highlights relevant supervisory findings, and articulates the CFPB's expectations for entities obtaining consumer authorizations for preauthorized EFTs to help them ensure their compliance with Federal consumer financial law.

    5. Conclusion

    The CFPB recognizes the value of communicating program findings to CFPB-supervised entities to aid them in their efforts to comply with Federal consumer financial law, and to other stakeholders to foster better understanding of the CFPB's work.

    To this end, the Bureau remains committed to publishing its Supervisory Highlights report periodically in order to share information regarding general supervisory and examination findings (without identifying specific institutions, except in the case of public enforcement actions), to communicate operational changes to the program, and to provide a convenient and easily accessible resource for information on the CFPB's guidance documents.

    6. Regulatory Requirements

    This Supervisory Highlights summarizes existing requirements under the law, summarizes findings made in the course of exercising the Bureau's supervisory and enforcement authority, and is a non-binding general statement of policy articulating considerations relevant to the Bureau's exercise of its supervisory and enforcement authority. It is therefore exempt from notice and comment rulemaking requirements under the Administrative Procedure Act pursuant to 5 U.S.C. 553(b). Because no notice of proposed rulemaking is required, the Regulatory Flexibility Act does not require an initial or final regulatory flexibility analysis. 5 U.S.C. 603(a), 604(a). The Bureau has determined that this Supervisory Highlights does not impose any new or revise any existing recordkeeping, reporting, or disclosure requirements on covered entities or members of the public that would be collections of information requiring OMB approval under the Paperwork Reduction Act, 44 U.S.C. 3501, et seq.

    Dated: May 10, 2016. Richard Cordray, Director, Bureau of Consumer Financial Protection.
    [FR Doc. 2016-11423 Filed 5-13-16; 8:45 am] BILLING CODE 4810-AM-P
    DEPARTMENT OF DEFENSE Department of the Army Army Science Board Request for Information on Robotic and Autonomous Systems-of-Systems (RAS) Technology Initiatives AGENCY:

    Department of the Army, DoD.

    ACTION:

    Request for information regarding support to Army RAS Competencies.

    SUMMARY:

    Pursuant to the Federal Advisory Committee Act of 1972 (5 U.S.C., Appendix, as amended), the Sunshine in Government Act of 1976 (U.S.C. 552b, as amended) and 41 Code of the Federal Regulations (CFR 102-3.140 through 160) the Department of the Army requests industry information on products, science and technology (S&T) research, operational concepts, and mission support innovations to support Army RAS competencies. No funds are available for any proposal or information submission and submitting information does not bind the Army for any future contracts/grants resulting from this request for information.

    The Army Science Board is requesting information from organizations external to the Army that will help the board complete its analysis and ensure that all viable sources of information are explored. Based on information submitted in response to this request, the Army Science Board may invite selected organizations to provide additional information on technologies of interest.

    To supplement the information developed in previous studies and otherwise available to the Board, organizations are invited to submit information on products or technologies to support RAS competencies and can be developed externally, either with support from the Army or from other sources.

    Specific information requested from industry on RAS products or technology (including Unmanned Air Systems (UAS) or Unmanned Ground Vehicles (UGV)) that companies are offering, or plan to offer, to government, civil or commercial customers is: Identification of the product and its capabilities; Description of the product or technology, including on-board processing architecture and functionality (e.g., vehicle guidance, navigation and control, sensor processing); Description of the current autonomous functionality and capabilities (e.g., waypoint navigation, sensor management, perception/reasoning); Description of plans to increase autonomy and changes, if any, to on-board processing architecture/functionality enabling greater autonomy; Description of the Human-RAS collaboration capabilities, or planned capabilities, and changes, if any, to on-board processing architecture/functionality enabling greater human-RAS collaboration; Assessment of utility of current, or planned, products or technologies to Army applications and missions.

    ADDRESSES:

    Written submissions are to be submitted to the: Army Science Board, ATTN: Designated Federal Officer, 2530 Crystal Drive, Suite 7098, Arlington, VA 22202.

    FOR FURTHER INFORMATION CONTACT:

    LTC Stephen K Barker at [email protected]

    SUPPLEMENTARY INFORMATION:

    Background. The Terms of Reference (ToR) provided by the Office of the Secretary of the Army directs the Army Science Board (ASB) to undertake a 2016 Study on “Robotic and Autonomous Systems-of-Systems Architecture.”

    In accordance with the ToR, this study will analyze and identify the Army formations with the greatest potential to benefit from adoption of RAS technology in both the near term (7-10 years) and the long term (10-25 years). For each selected application, the study team should define the benefits of RAS, considering such factors as cost, manpower reduction, survivability, and mission effectiveness. To the extent possible, the team should make maximum use of existing platforms available in the Army, other Services, or commercially. Among the concepts being studied by the study team, for which it is seeking input are on relevant products and technologies are: Counter Integrated Air Defense (IAD) System; Counter Armor and Counter Fires System; Combat Aviation Wingman; Manned-Unmanned Armor Platoon; Multi-Mission Aerial layer System; Soldier Situational Awareness (SA) System; and Point of Need Sustainment. This is not an exhaustive list. Other concepts are of interest as well.

    Submission Instructions and Format: To respond to this request for information, interested parties should submit all information detailed below. Packages must be submitted by Friday, May 27, 2016 by 4 p.m. Eastern Standard Time. Submissions should briefly summarize the technologies within a maximum of four pages (as broken down in paragraphs b, c, and d below), excluding quad chart, figures, references and the cover page. No proprietary information should be included in the responses. Submissions require both a CD and a hard copy of the response. The size of the CD submission will be limited to 20 MB. The hard copy format specifications include 12 point font, single-spaced, single-sided, 8.5 by 11 inches paper, with a 1 inch margin.

    a. Cover Page (1 page only):

    Title

    Industry

    Respondent's technical and administrative points of contact (names, addresses, phone and fax numbers, and email addresses).

    b. Abstract (1 page only): Summarize product or technology solutions and how they support Army RAS competencies. Respondents are encouraged to be as succinct as possible while providing sufficient detail to adequately convey the product or technology solutions.

    c. Product or Technology Description (4 pages maximum): Provide an enhanced view of the product or technology solution you are proposing, focusing on the advantages of the product or technology and its applicability to future Army RAS competencies. The description of each solution should include the current state of development and the predicted performance levels the product or technology should reasonably achieve. Of most interest to this study is a description of the current autonomous functionality of the product, the types of human-RAS collaboration that are supported by the product, any plans to increase autonomy and collaboration, and changes required to the on-board processing architecture needed to enable these planned improvements.

    d. Applicability to Future Army RAS competency (1 page only): Identify and expound upon how the product or technology supports the seven Study Concept areas mentioned above, concentrating on the added capability this solution provides that currently does not exist.

    All Proposers should review the NATIONAL INDUSTRIAL SECURITY PROGRAM OPERATING MANUAL, (NISPOM), dated February 28, 2006, as it provides the baseline standards for the protection of classified information and prescribes the requirements concerning Contractor Development information under paragraph 4-105. Defense Security Service (DSS) Site for the NISPOM is: http://www.dss.mil/isp/fac_clear/download_nispom.html.

    Unclassified white papers/CDs must be mailed to the POC listed (see ADDRESSES and FOR FURTHER INFORMATION CONTACT). Proposers who intend to include classified information or data in their white paper submission or who are unsure about the appropriate classification of their white papers should contact the POC for guidance and direction in advance of preparation at phone number (703) 545-8652.

    A listing of respondents and whether or not their submission was utilized will be made available for public inspection upon request. Open deliberation by the full committee is anticipated on or about July 18, 2016 in Irvine, CA. This meeting will be preceded by standard Federal Register notification.

    Brenda S. Bowen, Army Federal Register Liaison Officer.
    [FR Doc. 2016-11417 Filed 5-13-16; 8:45 am] BILLING CODE 5001-03-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 Threat Reduction Advisory Committee (“the Committee”).

    FOR FURTHER INFORMATION CONTACT:

    Jim Freeman, Advisory Committee Management Officer for the Department of Defense, 703-692-5952.

    SUPPLEMENTARY INFORMATION:

    This committee's charter is being renewed in accordance with the Federal Advisory Committee Act (FACA) of 1972 (5 U.S.C., Appendix, as amended) and 41 CFR 102-3.50(d). The charter and contact information for the Committee's Designated Federal Officer (DFO) can be obtained at http://www.facadatabase.gov/.

    The Committee provides the Secretary of Defense and the Deputy Secretary of Defense, through the Under Secretary of Defense for Acquisition, Technology, and Logistics and the Assistant Secretary of Defense for Nuclear, Chemical, and Biological Defense Programs, independent advice and recommendations on matters relating to combating Weapons of Mass Destruction (WMD). The Committee shall be composed of no more than 25 members who are eminent authorities in the fields of national defense, geopolitical and national security affairs, WMD, nuclear physics, chemistry, and biology. Members who are not full-time or permanent part-time Federal officers or employees are appointed as experts or consultants pursuant to 5 U.S.C. 3109 to serve as special government employee members. Members who are full-time or permanent part-time Federal officers or employees are appointed pursuant to 41 CFR 102-3.130(a) to serve as regular government employee members. Each member is 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 Committee-related travel and per diem, members serve without compensation. The DoD, as necessary and consistent with the Committee's mission and DoD policies and procedures, may establish subcommittees, task forces, or working groups to support the Committee, and all subcommittees must operate under the provisions of FACA and the Government in the Sunshine Act. Subcommittees will not work independently of the Committee and must report all recommendations and advice solely to the Committee 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 Committee. 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 Committee'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 Committee/subcommittee meeting. The public or interested organizations may submit written statements to the Committee membership about the Committee's mission and functions. Such statements may be submitted at any time or in response to the stated agenda of planned Committee meetings. All written statements must be submitted to the Committee's DFO who will ensure the written statements are provided to the membership for their consideration.

    Dated: May 11, 2016. Aaron Siegel, Alternate OSD Federal Register Liaison Officer, Department of Defense.
    [FR Doc. 2016-11452 Filed 5-13-16; 8:45 am] BILLING CODE 5001-06-P
    DEPARTMENT OF DEFENSE Office of the Secretary Notice of Availability (NOA) of a Draft Environmental Assessment (EA) Addressing the Closure of Former Defense Fuel Support Point (DFSP) Moffett Field Located in Santa Clara County, California AGENCY:

    Defense Logistics Agency (DLA), DoD.

    ACTION:

    Notice of Availability (NOA) of a draft Environmental Assessment (EA) addressing the Closure of Former DFSP Moffett Field located at Santa Clara County, California.

    SUMMARY:

    The DLA announces the availability of a draft EA that analyzes the potential environmental impacts associated with the Proposed Action to close the former DFSP, including removal of underground storage tanks and associated pipelines and equipment. The draft EA has been prepared as required under the National Environmental Policy Act (NEPA), (1969). In addition, the draft EA complies with DLA Regulation 1000.22.

    Cooperating Agency: National Aeronautics and Space Administration.

    DATES:

    The public comment period will end June 15, 2016.

    ADDRESSES:

    You may submit comments to one of the following:

    Mail: Defense Logistics Agency, Installation Support for Energy, Attn: Stacey Christenbury, 8725 John J. Kingman Road, Room 2828, Fort Belvoir, VA 22060.

    Email: [email protected]

    FOR FURTHER INFORMATION CONTACT:

    Stacey Christenbury at 703-767-6557 during normal business hours Monday through Friday, from 8:00 a.m. to 4:30 p.m. (EST) or by email: [email protected]

    SUPPLEMENTARY INFORMATION:

    Comments received by the end of the 30-day period will be considered when preparing the final version of the document. The draft EA is available in hardcopy at the Mountain View Public Library, located at 585 Franklin Street, Mountain View, California 94041, Phone: (650) 903-6337 or electronically at http://www.dla.mil/Portals/104/Documents/Energy/Publications/E_MoffettUSTClosure_160504.pdf.

    Documents referenced in the draft EA are available upon request.

    Dated: May 11, 2016. Aaron Siegel, Alternate OSD Federal Register Liaison Officer, Department of Defense.
    [FR Doc. 2016-11444 Filed 5-13-16; 8:45 am] BILLING CODE 5001-06-P
    DEPARTMENT OF DEFENSE Office of the Secretary [Docket ID: DOD-2013-HA-0192] Submission for OMB Review; Comment Request ACTION:

    Notice.

    SUMMARY:

    The Department of Defense has submitted to OMB for clearance, the following proposal for collection of information under the provisions of the Paperwork Reduction Act.

    DATES:

    Consideration will be given to all comments received by June 15, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Fred Licari, 571-372-0493.

    SUPPLEMENTARY INFORMATION:

    Title, Associated Form and OMB Number: Department of Defense Suicide Event Report (DoDSER); DD Form 2996; OMB Control Number 0720-0058.

    Type of Request: Revision of a currently approved collection.

    Number of Respondents: 1,375.

    Responses per Respondent: 1.

    Annual Responses: 1,375.

    Average Burden per Response: 10 minutes.

    Annual Burden Hours: 229.

    Needs and Uses: The revision of this information collection requirement is necessary for the continued provision of integrated enterprise and survey data to be used for direct reporting of suicide events and ongoing population-based health surveillance activities. These surveillance activities include the systematic collection, analysis, interpretation, and reporting of outcome-specific data for use in planning, implementation, evaluation, and prevention of suicide behaviors within the Department of Defense. Data is collected on individuals with reportable suicide and self-harm behaviors (to include suicide attempts, self-harm behaviors, and suicidal ideation). All other DoD active and reserve military personnel records collected without evidence of reportable suicide and self-harm behaviors will exist as a control group. Records are integrated from enterprise systems and created and revised by civilian and military personnel in the performance of their duties. We propose to revise the system to make specific changes that have been recommended for improving the completeness of DoDSER data.

    Affected Public: Individuals and households.

    Frequency: On occasion.

    Respondent's Obligation: Voluntary.

    OMB Desk Officer: Ms. Stephanie Tatham.

    Comments and recommendations on the proposed information collection should be emailed to Ms. Stephanie Tatham, DoD Desk Officer, at [email protected] Please identify the proposed information collection by DoD Desk Officer and the Docket ID number and title of the information collection.

    You may also submit comments and recommendations, identified by Docket ID number and title, by the following method:

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

    Instructions: All submissions received must include the agency name, Docket ID 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.

    DOD Clearance Officer: Mr. Frederick Licari.

    Written requests for copies of the information collection proposal should be sent to Mr. Licari at WHS/ESD Directives Division, 4800 Mark Center Drive, East Tower, Suite 02G09, Alexandria, VA 22350-3100.

    Dated: May 11, 2016. Aaron Siegel, Alternate OSD Federal Register Liaison Officer, Department of Defense.
    [FR Doc. 2016-11467 Filed 5-13-16; 8:45 am] BILLING CODE 5001-06-P
    DEPARTMENT OF EDUCATION Applications for New Awards; Investing in Innovation Fund—Scale-Up Grants AGENCY:

    Office of Innovation and Improvement, Department of Education.

    ACTION:

    Notice.

    Overview Information:

    Investing in Innovation Fund—Scale-up Grants.

    Notice inviting applications for new awards for fiscal year (FY) 2016.

    Catalog of Federal Domestic Assistance (CFDA) Number: 84.411A (Scale-up Grants).

    Dates:

    Applications Available: May 18, 2016.

    Deadline for Notice of Intent to Apply: June 6, 2016.

    Deadline for Transmittal of Applications: July 15, 2016.

    Deadline for Intergovernmental Review: September 13, 2016.

    Full Text of Announcement I. Funding Opportunity Description

    Purpose of Program: The Investing in Innovation Fund (i3), established under section 14007 of the American Recovery and Reinvestment Act of 2009 (ARRA), provides funding to support (1) local educational agencies (LEAs), and (2) nonprofit organizations in partnership with (a) one or more LEAs or (b) a consortium of schools. The i3 program is designed to generate and validate solutions to persistent educational challenges and to support the expansion of effective solutions to serve substantially larger numbers of students. The central design element of the i3 program is its multi-tier structure that links the amount of funding that an applicant may receive to the quality of the evidence supporting the efficacy of the proposed project. Applicants proposing practices supported by limited evidence can receive relatively small grants that support the development and initial evaluation of promising practices and help to identify new solutions to pressing challenges; applicants proposing practices supported by evidence from rigorous evaluations, such as large randomized controlled trials, can receive sizable grants to support expansion across the country. This structure provides incentives for applicants to build evidence of effectiveness of their proposed projects and to address the barriers to serving more students across schools, districts, and States.

    As importantly, all i3 projects are required to generate additional evidence of effectiveness. All i3 grantees must use part of their budgets to conduct independent evaluations (as defined in this notice) of their projects. This requirement ensures that projects funded under the i3 program contribute significantly to improving the information available to practitioners and policymakers about which practices work, for which types of students, and in what contexts.

    The Department awards three types of grants under this program: “Development” grants, “Validation” grants, and “Scale-up” grants. These grants differ in terms of the level of prior evidence of effectiveness required for consideration of funding, the level of scale the funded project should reach, and, consequently, the amount of funding available to support the project.

    This notice invites applications for Scale-up grants only. The notice inviting applications for Validation grants is published elsewhere in this issue of the Federal Register. The notice inviting applications for Development grants was published in the Federal Register on April 25, 2016 (81 FR 24070) and is available at https://www.thefederalregister.org/fdsys/pkg/F-2016-04-25/pdf/2016-09436.pdf.

    Scale-up grants provide funding to support expansion of projects supported by strong evidence of effectiveness (as defined in this notice) to the national level (as defined in this notice). In addition, as Scale-up projects seek to improve outcomes for students in high-need schools, they also generate important information about an intervention's effectiveness and the contexts for which a practice is most effective. We expect that Scale-up grants will increase practitioners' and policymakers' understanding of the implementation of proven practices and help identify effective approaches to expanding such practices while also maintaining or increasing their effectiveness across contexts.

    All Scale-up grantees must evaluate the effectiveness of the i3-supported practice that the project implements and expands. The evaluation of a Scale-up project must identify the core elements of, and codify, the i3-supported practice that the project implements in order to support adoption or replication by other entities. We also expect that evaluations of Scale-up grants will be conducted in a variety of contexts and for a variety of students in order to determine the context(s) and population(s) for which the i3-supported practice is most effective.

    We remind LEAs of the continuing applicability of the provisions of the Individuals with Disabilities Education Act (IDEA) for students who may be served under i3 grants. Any grants in which LEAs participate must be consistent with the rights, protections, and processes established under IDEA for students who are receiving special education and related services or who are in the process of being evaluated to determine their eligibility for such services.

    As described later in this notice, an applicant is required, as a condition of receiving assistance under this program, to make civil rights assurances, including an assurance that its program or activity will comply with section 504 of the Rehabilitation Act of 1973, as amended, and the Department's section 504 implementing regulations, which prohibit discrimination on the basis of disability. Regardless of whether a student with disabilities is specifically targeted as a “high-need student” (as defined in this notice) in a particular grant application, recipients are required to comply with all legal nondiscrimination requirements, including, but not limited to, the obligation to ensure that students with disabilities are not denied access to the benefits of the recipient's program because of their disability. The Department also enforces title II of the Americans with Disabilities Act (ADA), as well as the regulations implementing title II of the ADA, which prohibit discrimination on the basis of disability by public entities.

    Furthermore, title VI and title IX of the Civil Rights Act of 1964 prohibit discrimination on the basis of race, color, and national origin, and sex, respectively. On December 2, 2011, the Departments of Education and Justice jointly issued guidance that explains how educational institutions can promote student diversity or avoid racial isolation within the framework of title VI (e.g., through consideration of the racial demographics of neighborhoods when drawing assignment zones for schools or through targeted recruiting efforts). The “Guidance on the Voluntary Use of Race to Achieve Diversity and Avoid Racial Isolation in Elementary and Secondary Schools” is available on the Department's Web site at http://www2.ed.gov/about/offices/list/ocr/docs/guidance-ese-201111.pdf. 1

    1 In both 2013 and 2014, the Departments reiterated the continued viability of this 2011 guidance after two relevant Supreme Court decisions. Those guidance documents may be found at www.ed.gov/ocr/letters/colleague-201309.pdf, www.ed.gov/ocr/docs/dcl-qa-201309.pdf, and www.ed.gov/ocr/letters/colleague-201405-schuette-guidance.pdf.

    Background:

    Through its competitions, the i3 program seeks to improve the academic achievement of students in high-need schools by identifying and scaling promising solutions to pressing challenges in kindergarten through grade 12 (K-12). Now in its seventh year, the i3 program has invested over $1.3 billion—matched by over $200 million in private sector resources—in a portfolio of solutions and rigorous evaluations of several approaches that address critical challenges in education. When selecting the priorities for a given competition, the Department considers several factors including policy priorities, the need for new solutions in a particular priority area, the extent of the existing evidence supporting effective practices in a particular priority area, whether other available funding exists for a particular priority area, and the results and lessons learned from funded projects from prior i3 competitions. This year's competition does not include specific priorities for students with disabilities and English learners, as the program has successfully funded a range of projects serving these high-need populations under i3's broader priorities in previous competitions. Additionally, all applicants continue to be required to serve high-need student populations, and we continue to encourage applicants to consider how their proposed projects could serve students with disabilities or English learners. Applicants are encouraged to design an evaluation that will report findings on English learners, students with disabilities, and other subgroups.

    All i3 grantees are expected to improve academic outcomes for high-need students (as defined in this notice). The FY 2016 Scale-up competition includes four absolute priorities. These absolute priorities, as described below, identify persistent challenges in public education for which there are solutions that are supported by rigorous and generalizable evidence. We are particularly interested in supporting such efforts in rural areas. As such, and consistent with the past three competitions, applicants applying under the Serving Rural Communities priority (Absolute Priority 4) must also address one of the other three absolute priorities established for the FY 2016 i3 Scale-up competition. This structure has resulted in a strong set of grantees that are addressing the unique challenges in rural communities. We also include two competitive preference priorities for i3 applicants, as described below.

    First, we include an absolute priority for projects designed to implement and support the transition to internationally benchmarked, college- and career-ready academic content standards and associated assessments. Many States have raised the expectations for what schools should teach and their students should learn and do across the K-12 grade span by adopting new, more rigorous standards and assessments aligned to the demands of college and careers. Emerging research confirms that these exams are aligned to more rigorous standards.2 Educators are now faced with the important task of effectively implementing these higher standards and ensuring their students are adequately prepared for the associated assessments in order to ensure that all students are ready for post-secondary opportunities and their careers. Furthermore, throughout this continuing transition to higher standards and new assessments, schools and school districts need to continue to develop evidence-based approaches to increase the rigor of teaching and learning across various academic settings. For example, efforts are underway in districts across the country to provide teachers and school leaders with rich, student-specific information based on formative and summative assessments to help educators understand why students might be struggling—thereby enabling them to better align their subsequent instruction. Through this priority, the Department seeks to invest in strategies that leverage data and results from internationally benchmarked, college- and career-ready assessments to inform instruction and, ultimately, to support and improve student achievement.

    2 Doorey, N., and Polikoff, M. Evaluating the Content and Quality of Next Generation Assessments (2016). Thomas Fordham Institute. 1016 16th St. NW., 8th Floor, Washington, DC 20036. http://edex.s3-us-west-2.amazonaws.com/%2802.09%20-%20Final%20Published%29%20Evaluating%20the%20Content%20and%20Quality%20of%20Next%20Generation%20Assessments.pdf.

    Second, we include an absolute priority aimed at improving science, technology, engineering, and mathematics (STEM) education. Ensuring that all students can access and excel in STEM fields—which include coding and computer science—is essential to meeting the needs of our Nation's economy and encouraging our future prosperity.3 For example, the President highlights computer science specifically in his Computer Science for All Initiative.4 Careers in STEM fields are growing as are the knowledge and skills required to compete for and succeed in these specialized jobs.5 Recent Bureau of Labor Statistics data shows that, between 2010 and 2020, employment in STEM occupations is expected to expand faster than employment in non-STEM occupations (by 17 versus 14 percent).6 Also, by 2018, 51 percent of STEM jobs are projected to be in computer science-related fields.7 Moreover, STEM-related skills, such as data analysis and computational and technical literacy, are relevant to a wide array of postsecondary educational and professional pursuits. As such, the Department seeks to provide students with increased access to rigorous and engaging STEM programs and instruction across the K-12 grade span.

    3 Langdon, D., McKittrick, G., Beede, D., Khan, B., and Doms, M. U.S. Department of Commerce Economics and Statistics Administration. STEM: Good Jobs Now and for the Future (July 2011). ESA Issue Brief #03-11. Available at: www.esa.doc.gov/sites/default/files/stemfinalyjuly14_1.pdf.

    4 Smith, Megan. Computer Science for All (January 2016). https://www.whitehouse.gov/blog/2016/01/30/computer-science-all.

    5 Chairman's Staff of the Joint Economic Committee. Calculations using data from the Bureau of Labor Statistics. Employment Projections: 2010-20. Table 1.7 Occupational Employment and Job Openings Data, Projected 2010-20, and Worker Characteristics, 2010. February 2012. Available at: http://iedse.org/temp/wp-content/uploads/2015/02/www.iedse_.org_documents_STEM-Education-Preparing-for-the-Jobs-of-the-Future-.pdf. For the purposes of this calculation, STEM occupations are defined as in the U.S. Department of Commerce's Economics and Statistics Administration report, STEM: Good Jobs Now and for the Future. ESA Issue Brief #03-11. July 2011.

    6 Chairman's Staff of the Joint Economic Committee. Calculations using data from the Bureau of Labor Statistics. Employment Projections: 2010-20. Table 1.7 Occupational Employment and Job Openings Data, Projected 2010-20, and Worker Characteristics, 2010. February 2012. Available at: http://bls.gov/emp/. For the purposes of this calculation, STEM occupations are defined as in the U.S. Department of Commerce's Economics and Statistics Administration report, STEM: Good Jobs Now and for the Future. ESA Issue Brief #03-11. July 2011.

    7 Carnevale, A., Smith, N., Melton, M. Center on Education and the Workforce, Georgetown University. Science Technology Engineering Mathematics (2014). Available at: https://cew.georgetown.edu/wp-content/uploads/2014/11/stem-complete.pdf.

    Third, we include an absolute priority focused on improving low-performing schools. The Department desires to support whole-school models and strategies that lead to significant and sustained improvement in individual student performance and overall school performance and culture. Thousands of schools do not adequately prepare students to achieve at grade level and struggle to overcome the gaps in student performance across socioeconomic and racial groups.8 Research shows that the greatest portion of the gap in performance between Black and White students comes from the differences within a school as opposed to differences across school settings.9 Furthermore, while graduation rates have been steadily improving nationwide, in 17 States, less than 70 percent of students from economically disadvantaged backgrounds graduate from high school.10 While considerable attention has been paid to these schools in recent years, the pace of progress continues to be slow and school turnaround successes tend to be isolated rather than systematic. Whole-school models that successfully transform school culture and student outcomes can be comprised of a range of strategies, such as harnessing teacher leadership,11 creating small learning communities, academic interventions, and school redesign. Overall, we seek to support projects that work across schools and districts in multiple regions to transform the learning environment by instituting a range of evidence-based practices.

    8 PISA Results from 2012. Country Note: United States. www.oecd.org/pisa/keyfindings/PISA-2012-results-US.pdf.

    9 Bohrnstedt, G., Kitmitto, S., Ogut, B., Sherman, D., and Chan, D. (2015). School Composition and the Black-White Achievement Gap (NCES 2015-018). U.S. Department of Education, Washington, DC: National Center for Education Statistics. Retrieved September 24, 2015 from http://nces.ed.gov/pubsearch.

    10 U.S. Department of Education, National Center for Education Statistics (NCES): https://nces.ed.gov/ccd/tables/ACGR_RE_and_characteristics_2013-14.asp.

    11 School Turnarounds: How Successful Principals Use Teacher Leadership. (March 2016). http://publicimpact.com/school-turnarounds-how-successful-principals-use-teacher-leadership/.

    Finally, we include an absolute priority for serving rural communities. Students living in rural communities face unique challenges, such as lack of access to specialized courses or college advising. Applicants applying under this priority must also address one of the other three absolute priorities established for the FY 2016 i3 Scale-up competition, while serving students enrolled in rural local educational agencies (as defined in this notice).

    We also include two competitive preference priorities in the FY 2016 Scale-up competition. First, we include a competitive preference priority for projects that enable the broad adoption of effective practices. This competitive preference priority awards extra points to applicants that will implement systematic methods for identifying and supporting the expansion of these practices. While all Scale-up grantees must codify the core elements of their i3-supported practices, we are interested in projects that focus particularly on the documentation, dissemination, and replication of practices that have been demonstrated to be effective. We are particularly eager to support innovative partnership models to help share, disseminate, and scale effective practices among non-i3 grantees. In addition, practitioners and policymakers need access to strong, reliable data to make informed decisions about adopting effective practices, particularly to replace less effective alternatives. This competitive preference priority supports strategies that identify key elements of effective practices and that capture lessons learned about the implementation of these practices. In addition, an applicant addressing this priority must commit to implementing its approach in multiple settings and locations in order to ensure that the practice can be successfully replicated in different contexts.

    Second, to expand the reach of the i3 program and encourage entities that have not previously received an i3 grant to apply, the Department includes a competitive preference priority for novice i3 applicants. A novice i3 applicant is an applicant that has never received a grant under the i3 program. An applicant must identify whether it is a novice applicant when completing the applicant information sheet. Instructions on how to complete the applicant information sheet are included in the application package.

    Applicants should carefully review all of the application requirements and the requirements in the Eligibility Information section of this notice for instructions on how to demonstrate strong evidence of effectiveness and for information on the other eligibility and program requirements. In summary, applications must address one of the first three absolute priorities for this competition and propose projects designed to implement practices that serve students who are in grades K-12 at some point during the funding period. If an applicant chooses to also address the absolute priority regarding students in rural LEAs, that applicant must also address one of the other three absolute priorities established for the FY 2016 i3 Scale-up competition, while serving students enrolled in rural LEAs (as defined in this notice). Additionally, applicants must be able to show strong evidence of effectiveness (as defined in this notice) for the proposed process, product, strategy, or practice included in their applications. To meet the eligibility requirement regarding the applicant's record of improvement, an applicant must provide, in its application, sufficient supporting data or other information to allow the Department to determine whether the applicant has met the eligibility requirements. Note that, to address the statutory eligibility requirements in paragraphs (a)(1) or (2), and (b) (provided in the statutory eligibility requirements in the Eligibility Information section), applicants must provide data that demonstrate a change due to the work of the applicant with an LEA or schools. In other words, applicants must provide data for at least two definitive points in time when addressing this requirement in Appendix C of their applications. Additional information for this requirement can be found under the Eligibility Information section of this notice.

    The i3 program includes a statutory requirement for a private-sector match for all i3 grantees. For Scale-up grants, an applicant must obtain matching funds or in-kind donations from the private sector equal to at least five percent of its grant award. Each highest-rated application, as identified by the Department following peer review of the applications, must submit evidence of at least 50 percent of the required private-sector match prior to the awarding of an i3 grant. An applicant must provide evidence of the remaining 50 percent of the required private-sector match no later than three months after the project start date (i.e., for the FY 2016 competition, three months after January 1, 2017, or by April 1, 2017). The grant will be terminated if the grantee does not secure its private-sector match by the established deadline.

    This notice includes selection criteria for the FY 2016 Scale-up competition that are designed to ensure that applications selected for funding have the potential to generate substantial improvements in student achievement (and other key outcomes), and include well-articulated plans for the implementation and evaluation of the proposed projects. Applicants should review the selection criteria and submission instructions carefully to ensure their applications address this year's criteria.

    An entity that submits an application for a Scale-up grant should include the following information in its application: An estimate of the number of students to be served by the project; evidence of the applicant's ability to implement and appropriately evaluate the proposed project; and information about its capacity (e.g., management capacity, financial resources, and qualified personnel) to implement the project at a national level, working directly or through partners. We recognize that LEAs are not typically responsible for taking their practices, strategies, or programs to scale; however, all applicants can and should partner with others to disseminate their effective practices, strategies, and programs and take them to scale.

    The Department will screen applications that are submitted for Scale-up grants in accordance with the requirements in this notice and determine which applications meet the eligibility and other requirements. Peer reviewers will review all applications for Scale-up grants that are submitted by the established deadline.

    Applicants should note, however, that we may screen for eligibility at multiple points during the competition process, including before and after peer review; applicants that are determined to be ineligible will not receive a grant award regardless of peer reviewer scores or comments. If we determine that a Scale-up grant application is not supported by strong evidence of effectiveness, or that the applicant does not demonstrate the required prior record of improvement, or does not meet any other i3 requirement, the application will not be considered for funding.

    Please note that on December 10, 2015, the Every Student Succeeds Act (ESSA), which reauthorized the Elementary and Secondary Education Act of 1965, was signed into law. ESSA establishes the Education Innovation and Research Program (EIR), a new program that builds on the work led by the i3 program and its grantees. Accordingly, this FY 2016 i3 competition will be the final i3 competition under current statute and regulations. Pending congressional appropriations, the Department will launch the first EIR competition in FY 2017.

    Priorities: This competition includes four absolute priorities and two competitive preference priorities. Absolute Priority 1 is from the Department's notice of final supplemental priorities and definitions for discretionary grant programs, published in the Federal Register on December 10, 2014 (79 FR 73425) (Supplemental Priorities). Absolute Priorities 2, 3, and 4 and both competitive preference priorities are from the notice of final priorities, requirements, definitions, and selection criteria for this program, published in the Federal Register on March 27, 2013 (78 FR 18681) (2013 i3 NFP).

    Absolute Priorities: For FY 2016 and any subsequent year in which we make awards from the list of unfunded applications from this competition, these priorities are absolute priorities. Under 34 CFR 75.105(c)(3) we consider only applications that meet one of these priorities.

    Applicants must address one of the first four absolute priorities. An applicant that addresses Absolute Priority 4, Serving Rural Communities, must also address one of the first three absolute priorities. Because applications will be rank ordered by absolute priority, applicants must clearly identify the specific absolute priority that the proposed project addresses. Applications submitted under Absolute Priority 4 will be ranked with other applications under Absolute Priority 4, and not included in the ranking for the additional priority that the applicant identified. This design helps us ensure that applications under Absolute Priority 4 receive an “apples to apples” comparison with other applicants addressing the Serving Rural Communities priority.

    These priorities are:

    Absolute Priority 1—Implementing Internationally Benchmarked College- and Career-Ready Standards and Assessments.

    Under this priority, we provide funding to projects that are designed to support the implementation of, and transition to, internationally benchmarked college- and career-ready standards and assessments, including developing and implementing strategies that use the standards and information from assessments to inform classroom practices that meet the needs of all students.

    Absolute Priority 2—Improving Science, Technology, Engineering, and Mathematics (STEM) Education.

    Under this priority, we provide funding to projects addressing pressing needs for improving STEM education.

    Absolute Priority 3—Improving Low-Performing Schools.

    Under this priority, we provide funding to projects that address designing whole-school models and implementing processes that lead to significant and sustained improvement in individual student performance and overall school performance and culture. These models may incorporate such strategies as providing strong school leadership; strengthening the instructional program; embedding professional development that provides teachers with frequent feedback to increase the rigor and effectiveness of their instructional practice; redesigning the school day, week, or year; using data to inform instruction and improvement; establishing a school environment that promotes a culture of high expectations; addressing non-academic factors that affect student achievement; and providing ongoing mechanisms for parent and family engagement.

    Other requirements related to Priority 3:

    To meet this priority, a project must serve schools among (1) the lowest-performing schools in the State on academic performance measures; (2) schools in the State with the largest within-school performance gaps between student subgroups described in section 1111(b)(2) of the ESEA; or (3) secondary schools in the State with the lowest graduation rate over a number of years or the largest within-school gaps in graduation rates between student subgroups described in section 1111(b)(2) of the ESEA. Additionally, projects funded under this priority must complement the broader turnaround efforts of the school(s), LEA(s), or State(s) where the projects will be implemented.

    Absolute Priority 4—Serving Rural Communities.

    Under this priority, we provide funding to projects that address one of the absolute priorities established for the FY 2016 Scale-up i3 competition and under which the majority of students to be served are enrolled in rural local educational agencies (as defined in this notice).

    Competitive Preference Priorities: For FY 2016 and any subsequent year in which we make awards from the list of unfunded applications from this competition, these priorities are competitive preference priorities. Under 34 CFR 75.105(c)(2)(i) we award five additional points to applications that meet the requirements of the first competitive preference priority and we award three additional points to applications that meet the requirements of the second competitive preference priority.

    Applicants may address both competitive preference priorities. An applicant must identify in the project narrative section of its application the priority or priorities it wishes the Department to consider for purposes of earning competitive preference priority points. The Department will not review or award points under any competitive preference priority that the applicant fails to clearly identify.

    These priorities are:

    Competitive Preference Priority 1—Enabling Broad Adoption of Effective Practices (0 or 5 points).

    Under this priority, we provide funding to projects that enable broad adoption of effective practices. An application proposing to address this priority must, as part of its application:

    (a) Identify the practice or practices that the application proposes to prepare for broad adoption, including formalizing the practice (i.e., establish and define key elements of the practice), codifying (i.e., develop a guide or tools to support the dissemination of information on key elements of the practice), and explaining why there is a need for formalization and codification.

    (b) Evaluate different forms of the practice to identify the critical components of the practice that are crucial to its success and sustainability, including the adaptability of critical components to different teaching and learning environments and to diverse learners.

    (c) Provide a coherent and comprehensive plan for developing materials, training, toolkits, or other supports that other entities would need in order to implement the practice effectively and with fidelity.

    (d) Commit to assessing the replicability and adaptability of the practice by supporting the implementation of the practice in a variety of locations during the project period using the materials, training, toolkits, or other supports that were developed for the i3-supported practice.

    Competitive Preference Priority 2—Supporting Novice i3 Applicants (0 or 3 points).

    Eligible applicants that have never directly received a grant under this program.

    Definitions:

    The definitions of “large sample,” “logic model,” “multi-site sample,” “national level,” “quasi-experimental design study,” “randomized controlled trial,” “regional level,” “relevant outcome,” “strong evidence of effectiveness,” and “What Works Clearinghouse (WWC) Evidence Standards” are from 34 CFR 77.1. All other definitions are from the 2013 i3 NFP. We may apply these definitions in any year in which this program is in effect.

    Consortium of schools means two or more public elementary or secondary schools acting collaboratively for the purpose of applying for and implementing an i3 grant jointly with an eligible nonprofit organization.

    High-minority school is defined by a school's LEA in a manner consistent with the corresponding State's Teacher Equity Plan, as required by section 1111(b)(8)(C) of the ESEA. The applicant must provide, in its i3 application, the definition(s) used.

    High-need student means a student at risk of educational failure or otherwise in need of special assistance and support, such as students who are living in poverty, who attend high-minority schools (as defined in this notice), who are far below grade level, who have left school before receiving a regular high school diploma, who are at risk of not graduating with a diploma on time, who are homeless, who are in foster care, who have been incarcerated, who have disabilities, or who are English learners.

    High school graduation rate means a four-year adjusted cohort graduation rate consistent with 34 CFR 200.19(b)(1) and may also include an extended-year adjusted cohort graduation rate consistent with 34 CFR 200.19(b)(1)(v) if the State in which the proposed project is implemented has been approved by the Secretary to use such a rate under title I of the ESEA.

    Independent evaluation means that the evaluation is designed and carried out independent of, but in coordination with, any employees of the entities who develop a process, product, strategy, or practice and are implementing it.

    Innovation means a process, product, strategy, or practice that improves (or is expected to improve) significantly upon the outcomes reached with status quo options and that can ultimately reach widespread effective usage.

    Large sample means an analytic sample of 350 or more students (or other single analysis units), or 50 or more groups (such as classrooms or schools) that contain 10 or more students (or other single analysis units).

    Logic model (also referred to as theory of action) means a well-specified conceptual framework that identifies key components of the proposed process, product, strategy, or practice (i.e., the active “ingredients” that are hypothesized to be critical to achieving the relevant outcomes) and describes the relationships among the key components and outcomes, theoretically and operationally.

    Multi-site sample means more than one site, where site can be defined as an LEA, locality, or State.

    National level describes the level of scope or effectiveness of a process, product, strategy, or practice that is able to be effective in a wide variety of communities, including rural and urban areas, as well as with different groups (e.g., economically disadvantaged, racial and ethnic groups, migrant populations, individuals with disabilities, English learners, and individuals of each gender).

    Nonprofit organization means an entity that meets the definition of “nonprofit” under 34 CFR 77.1(c), or an institution of higher education as defined by section 101(a) of the Higher Education Act of 1965, as amended.

    Quasi-experimental design study means a study using a design that attempts to approximate an experimental design by identifying a comparison group that is similar to the treatment group in important respects. These studies, depending on design and implementation, can meet What Works Clearinghouse Evidence Standards with reservations (but not What Works Clearinghouse Evidence Standards without reservations).

    Randomized controlled trial means a study that employs random assignment of, for example, students, teachers, classrooms, schools, or districts to receive the intervention being evaluated (the treatment group) or not to receive the intervention (the control group). The estimated effectiveness of the intervention is the difference between the average outcomes for the treatment group and for the control group. These studies, depending on design and implementation, can meet What Works Clearinghouse Evidence Standards without reservations.

    Regional level describes the level of scope or effectiveness of a process, product, strategy, or practice that is able to serve a variety of communities within a State or multiple States, including rural and urban areas, as well as with different groups (e.g., economically disadvantaged, racial and ethnic groups, migrant populations, individuals with disabilities, English learners, and individuals of each gender). For an LEA-based project to be considered a regional-level project, a process, product, strategy, or practice must serve students in more than one LEA, unless the process, product, strategy, or practice is implemented in a State in which the State educational agency is the sole educational agency for all schools.

    Relevant outcome means the student outcome(s) (or the ultimate outcome if not related to students) the proposed process, product, strategy or practice is designed to improve; consistent with the specific goals of a program.

    Rural local educational agency means a local educational agency (LEA) that is eligible under the Small Rural School Achievement (SRSA) program or the Rural and Low-Income School (RLIS) program authorized under title VI, part B of the ESEA. Eligible applicants may determine whether a particular LEA is eligible for these programs by referring to information on the Department's Web site at http://www2.ed.gov/nclb/freedom/local/reap.html.

    Strong evidence of effectiveness means one of the following conditions is met:

    (i) There is at least one study of the effectiveness of the process, product, strategy, or practice being proposed that meets the What Works Clearinghouse Evidence Standards without reservations, found a statistically significant favorable impact on a relevant outcome (with no statistically significant and overriding unfavorable impacts on that outcome for relevant populations in the study or in other studies of the intervention reviewed by and reported on by the What Works Clearinghouse), includes a sample that overlaps with the populations and settings proposed to receive the process, product, strategy, or practice, and includes a large sample and a multi-site sample. (Note: Multiple studies can cumulatively meet the large and multi-site sample requirements as long as each study meets the other requirements in this paragraph).

    (ii) There are at least two studies of the effectiveness of the process, product, strategy, or practice being proposed, each of which: Meets the What Works Clearinghouse Evidence Standards with reservations, found a statistically significant favorable impact on a relevant outcome (with no statistically significant and overriding unfavorable impacts on that outcome for relevant populations in the studies or in other studies of the intervention reviewed by and reported on by the What Works Clearinghouse), includes a sample that overlaps with the populations and settings proposed to receive the process, product, strategy, or practice, and includes a large sample and a multi-site sample.

    Student achievement means—

    (a) For grades and subjects in which assessments are required under ESEA section 1111(b)(3): (1) A student's score on such assessments and may include (2) other measures of student learning, such as those described in paragraph (b), provided they are rigorous and comparable across schools within an LEA.

    (b) For grades and subjects in which assessments are not required under ESEA section 1111(b)(3): Alternative measures of student learning and performance such as student results on pre-tests, end-of-course tests, and objective performance-based assessments; student learning objectives; student performance on English language proficiency assessments; and other measures of student achievement that are rigorous and comparable across schools within an LEA.

    Student growth means the change in student achievement (as defined in this notice) for an individual student between two or more points in time. An applicant may also include other measures that are rigorous and comparable across classrooms.

    What Works Clearinghouse Evidence Standards means the standards set forth in the What Works Clearinghouse Procedures and Standards Handbook (Version 3.0, March 2014), which can be found at the following link: http://ies.ed.gov/ncee/wwc/DocumentSum.aspx?sid=19.

    Program Authority: ARRA, Division A, Section 14007, Public Law 111-5.

    Applicable Regulations: (a) The Education Department General Administrative Regulations (EDGAR) in 34 CFR parts 75, 77, 79, 81, 82, 84, 86, 97, 98, and 99. (b) The Office of Management and Budget Guidelines to Agencies on Governmentwide Debarment and Suspension (Nonprocurement) in 2 CFR part 180, as adopted and amended as regulations of the Department in 2 CFR part 3485. (c) The Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards in 2 CFR part 200, as adopted and amended as regulations of the Department in 2 CFR part 3474. (d) The 2013 i3 NFP. (e) The Supplemental Priorities.

    Note:

    The regulations in 34 CFR part 79 apply to all applicants except federally recognized Indian tribes.

    Note:

    The regulations in 34 CFR part 86 apply to institutions of higher education only.

    II. Award Information

    Type of Award: Cooperative agreements or discretionary grants.

    Estimated Available Funds: $103,100,000.

    These estimated available funds are the total available for all three types of grants under the i3 program (Development, Validation, and Scale-up grants). Contingent upon the availability of funds and the quality of applications, we may make additional awards in FY 2017 or later years from the list of unfunded applications from this competition.

    Estimated Range of Awards:

    Development grants: Up to $3,000,000.

    Validation grants: Up to $12,000,000.

    Scale-up grants: Up to $20,000,000.

    Note:

    The upper limit of the range of awards (e.g., $20,000,000 for Scale-up grants) is referred to as the “maximum amount of awards” under Other in section III of this notice.

    Estimated Average Size of Awards:

    Development grants: $3,000,000.

    Validation grants: $11,500,000.

    Scale-up grants: $19,000,000.

    Estimated Number of Awards:

    Development grants: 9-11 awards.

    Validation grants: 2-3 awards.

    Scale-up grants: 0-2 awards.

    Note:

    The Department is not bound by any estimates in this notice.

    Project Period: 36-60 months.

    III. Eligibility Information

    1. Innovations that Improve Achievement for High-Need Students: All grantees must implement practices that are designed to improve student achievement (as defined in this notice) or student growth (as defined in this notice), close achievement gaps, decrease dropout rates, increase high school graduation rates (as defined in this notice), or increase college enrollment and completion rates for high-need students (as defined in this notice).

    2. Innovations that Serve Kindergarten-through-Grade-12 (K-12) Students: All grantees must implement practices that serve students who are in grades K-12 at some point during the funding period. To meet this requirement, projects that serve early learners (i.e., infants, toddlers, or preschoolers) must provide services or supports that extend into kindergarten or later years, and projects that serve postsecondary students must provide services or supports during the secondary grades or earlier.

    3. Eligible Applicants: Entities eligible to apply for i3 grants include either of the following:

    (a) An LEA.

    (b) A partnership between a nonprofit organization and—

    (1) One or more LEAs; or

    (2) A consortium of schools.

    Statutory Eligibility Requirements: Except as specifically set forth in the Note about Eligibility for an Eligible Applicant that Includes a Nonprofit Organization that follows, to be eligible for an award, an eligible applicant must—

    (a)(1) Have significantly closed the achievement gaps between groups of students described in section 1111(b)(2) of the ESEA (economically disadvantaged students, students from major racial and ethnic groups, students with limited English proficiency, students with disabilities); or

    (2) Have demonstrated success in significantly increasing student academic achievement for all groups of students described in that section;

    (b) Have made significant improvements in other areas, such as high school graduation rates (as defined in this notice) or increased recruitment and placement of high-quality teachers and principals, as demonstrated with meaningful data;

    (c) Demonstrate that it has established one or more partnerships with the private sector, which may include philanthropic organizations, and that organizations in the private sector will provide matching funds in order to help bring results to scale; and

    (d) In the case of an eligible applicant that includes a nonprofit organization, provide in the application the names of the LEAs with which the nonprofit organization will partner, or the names of the schools in the consortium with which it will partner. If an eligible applicant that includes a nonprofit organization intends to partner with additional LEAs or schools that are not named in the application, it must describe in the application the demographic and other characteristics of these LEAs and schools and the process it will use to select them.

    Note:

    An entity submitting an application should provide, in Appendix C, under “Other Attachments Form,” of its application, information addressing the eligibility requirements described in this section. An applicant must provide, in its application, sufficient supporting data or other information to allow the Department to determine whether the applicant has met the eligibility requirements. Note that, to address the statutory eligibility requirements in paragraphs (a)(1) or (2), and (b), applicants must provide data that demonstrate a change due to the work of the applicant with an LEA or schools. In other words, applicants must provide data for at least two definitive points in time when addressing this requirement in Appendix C of their applications. For further guidance, please refer to the definition of “student achievement” in this notice, and the question and answer Webinar for FY 2016 i3 Scale-up and Validation Applications. Additionally, information on the statutory eligibility requirements can be found on the i3 Web site at http://innovation.ed.gov/what-we-do/innovation/investing-in-innovation-i3/. If the Department determines that an applicant has provided insufficient information in its application, the applicant will not have an opportunity to provide additional information.

    Note about LEA Eligibility: For purposes of this program, an LEA is an LEA located within one of the 50 States, the District of Columbia, or the Commonwealth of Puerto Rico.

    Note about Eligibility for an Eligible Applicant that Includes a Nonprofit Organization:

    The authorizing statute specifies that an eligible applicant that includes a nonprofit organization meets the requirements in paragraphs (a) and (b) of the eligibility requirements for this program if the nonprofit organization has a record of significantly improving student achievement, attainment, or retention. For an eligible applicant that includes a nonprofit organization, the nonprofit organization must demonstrate that it has a record of significantly improving student achievement, attainment, or retention through its record of work with an LEA or schools. Therefore, an eligible applicant that includes a nonprofit organization does not necessarily need to include as a partner for its i3 grant an LEA or a consortium of schools that meets the requirements in paragraphs (a) and (b) of the eligibility requirements in this notice.

    In addition, the authorizing statute specifies that an eligible applicant that includes a nonprofit organization meets the requirements of paragraph (c) of the eligibility requirements in this notice if the eligible applicant demonstrates that it will meet the requirement for private-sector matching.

    4. Cost Sharing or Matching: To be eligible for an award, an applicant must demonstrate that one or more private-sector organizations, which may include philanthropic organizations, will provide matching funds in order to help bring project results to scale. An eligible Scale-up applicant must obtain matching funds, or in-kind donations, equal to at least five percent of its Federal grant award. The highest-rated eligible applicants must submit evidence of 50 percent of the required private-sector matching funds following the peer review of applications. A Federal i3 award will not be made unless the applicant provides adequate evidence that the 50 percent of the required private-sector match has been committed or the Secretary approves the eligible applicant's request to reduce the matching-level requirement. An applicant must provide evidence of the remaining 50 percent of required private-sector match three months after the project start date.

    The Secretary may consider decreasing the matching requirement on a case-by-case basis, and only in the most exceptional circumstances. An eligible applicant that anticipates being unable to meet the full amount of the private-sector matching requirement must include in its application a request that the Secretary reduce the matching-level requirement, along with a statement of the basis for the request.

    Note:

    An applicant that does not provide a request for a reduction of the matching-level requirement in its application may not submit that request at a later time.

    5. Other: The Secretary establishes the following requirements for the i3 program. These requirements are from the 2013 i3 NFP. We may apply these requirements in any year in which this program is in effect.

    Evidence Standards: To be eligible for an award, an application for a Scale-up grant must be supported by strong evidence of effectiveness (as defined in this notice).

    Note:

    An applicant should identify up to four study citations to be reviewed against What Works Clearinghouse Evidence Standards for the purposes of meeting the i3 evidence standard requirement. An applicant should clearly identify these citations in Appendix D, under the “Other Attachments Form,” of its application. The Department will not review a study citation that an applicant fails to clearly identify for review. In addition to the four study citations, applicants should include a description of the intervention(s) the applicant plans to implement and the intended student outcomes that the intervention(s) attempts to impact in Appendix D.

    An applicant must either ensure that all evidence is available to the Department from publicly available sources and provide links or other guidance indicating where it is available; or, in the full application, include copies of evidence in Appendix D. If the Department determines that an applicant has provided insufficient information, the applicant will not have an opportunity to provide additional information at a later time. However, if the WWC determines that a study does not provide enough information on key aspects of the study design, such as sample attrition or equivalence of intervention and comparison groups, the WWC will submit a query to the study author(s) to gather information for use in determining a study rating. Authors are asked to respond to queries within ten business days. Should the author query remain incomplete within 14 days of the initial contact to the study author(s), the study will be deemed ineligible under the grant competition. After the grant competition closes, the WWC will continue to include responses to author queries and will make updates to study reviews as necessary. However, the competition can only take into account information that is available at the time the competition is open.

    Note:

    The evidence standards apply to the prior research that supports the effectiveness of the proposed project. The i3 program does not restrict the source of prior research providing evidence for the proposed project. As such, an applicant could cite prior research in Appendix D for studies that were conducted by another entity (i.e., an entity that is not the applicant) so long as the prior research studies cited in the application are relevant to the effectiveness of the proposed project.

    Funding Categories: An applicant will be considered for an award only for the type of i3 grant (i.e., Development, Validation, and Scale-up grant) for which it applies. An applicant may not submit an application for the same proposed project under more than one type of grant.

    Limit on Grant Awards: (a) No grantee may receive more than two new grant awards of any type under the i3 program in a single year; (b) in any two-year period, no grantee may receive more than one new Scale-up or Validation grant; and (c) no grantee may receive in a single year new i3 grant awards that total an amount greater than the sum of the maximum amount of funds for a Scale-up grant and the maximum amount of funds for a Development grant for that year. For example, in a year when the maximum award value for a Scale-up grant is $20 million and the maximum award value for a Development grant is $3 million, no grantee may receive in a single year new grants totaling more than $23 million.

    Subgrants: In the case of an eligible applicant that is a partnership between a nonprofit organization and (1) one or more LEAs or (2) a consortium of schools, the partner serving as the applicant and, if funded, as the grantee, may make subgrants to one or more entities in the partnership.

    Evaluation: The grantee must conduct an independent evaluation (as defined in this notice) of its project. This evaluation must estimate the impact of the i3-supported practice (as implemented at the proposed level of scale) on a relevant outcome (as defined in this notice). The grantee must make broadly available digitally and free of charge, through formal (e.g., peer-reviewed journals) or informal (e.g., newsletters) mechanisms, the results of any evaluations it conducts of its funded activities. For Scale-up and Validation grants, the grantee must also ensure that the data from its evaluation are made available to third-party researchers consistent with applicable privacy requirements.

    In addition, the grantee and its independent evaluator must agree to cooperate with any technical assistance provided by the Department or its contractor and comply with the requirements of any evaluation of the program conducted by the Department. This includes providing to the Department, within 100 days of a grant award, an updated comprehensive evaluation plan in a format and using such tools as the Department may require. Grantees must update this evaluation plan at least annually to reflect any changes to the evaluation. All of these updates must be consistent with the scope and objectives of the approved application.

    Communities of Practice: Grantees must participate in, organize, or facilitate, as appropriate, communities of practice for the i3 program. A community of practice is a group of grantees that agrees to interact regularly to solve a persistent problem or improve practice in an area that is important to them.

    Management Plan: Within 100 days of a grant award, the grantee must provide an updated comprehensive management plan for the approved project in a format and using such tools as the Department may require. This management plan must include detailed information about implementation of the first year of the grant, including key milestones, staffing details, and other information that the Department may require. It must also include a complete list of performance metrics, including baseline measures and annual targets. The grantee must update this management plan at least annually to reflect implementation of subsequent years of the project.

    IV. Application and Submission Information

    1. Address to Request Application Package: You can obtain an application package via the Internet or from the Education Publications Center (ED Pubs). To obtain a copy via the Internet, use the following address: http://innovation.ed.gov/what-we-do/innovation/investing-in-innovation-i3/. To obtain a copy from ED Pubs, write, fax, or call: ED Pubs, U.S. Department of Education, P.O. Box 22207, Alexandria, VA 22304. Telephone, toll free: 1-877-433-7827. FAX: (703) 605-6794. If you use a telecommunications device for the deaf (TDD) or a text telephone (TTY), call, toll free: 1-877-576-7734.

    You can contact ED Pubs at its Web site, also: www.EDPubs.gov or at its email address: [email protected]

    If you request an application package from ED Pubs, be sure to identify this competition as follows: CFDA number 84.411A.

    Individuals with disabilities can obtain a copy of the application package in an accessible format (e.g., braille, large print, audiotape, or compact disc) by contacting the person or team listed under Accessible Format in section VIII of this notice.

    2. a. Content and Form of Application Submission: Requirements concerning the content of an application, together with the forms you must submit, are in the application package for this competition.

    Deadline for Notice of Intent to Submit Application: June 6, 2016.

    We will be able to develop a more efficient process for reviewing grant applications if we know the approximate number of applicants that intend to apply for funding under this competition. Therefore, the Secretary strongly encourages each potential applicant to notify us of the applicant's intent to submit an application by completing a Web-based form. When completing this form, applicants will provide (1) the applicant organization's name and address and (2) the absolute priority the applicant intends to address. Applicants may access this form online at https://www.surveymonkey.com/r/KDJQ3B3. Applicants that do not complete this form may still submit an application.

    Page Limit: The application narrative (part III of the application) is where you, the applicant, address the selection criteria that reviewers use to evaluate your application. Applicants should limit the application narrative for a Scale-up grant application to no more than 50 pages. Applicants are also strongly encouraged not to include lengthy appendices that contain information that they were unable to include within the page limits for the narrative. Applicants should use the following standards:

    • A “page” is 8.5″ x 11″, on one side only, with 1″ margins at the top, bottom, and both sides.

    • Double space (no more than three lines per vertical inch) all text in the application narrative, including titles, headings, footnotes, quotations, references, and captions.

    • Use a font that is either 12 point or larger or no smaller than 10 pitch (characters per inch).

    • Use one of the following fonts: Times New Roman, Courier, Courier New, or Arial.

    The page limit for the application does not apply to part I, the cover sheet; Part II, the budget section, including the narrative budget justification; Part IV, the assurances and certifications; or the one-page abstract, the resumes, the bibliography, or the letters of support of the application. However, the page limit does apply to all of the application narrative section of the application.

    b. Submission of Proprietary Information:

    Given the types of projects that may be proposed in applications for the i3 program, your application may include business information that you consider proprietary. In 34 CFR 5.11 we define “business information” and describe the process we use in determining whether any of that information is proprietary and, thus, protected from disclosure under Exemption 4 of the Freedom of Information Act (5 U.S.C. 552, as amended).

    Consistent with the process followed in the prior i3 competitions, we plan on posting the project narrative section of funded i3 applications on the Department's Web site. Accordingly, you may wish to request confidentiality of business information. Identifying proprietary information in the submitted application will help facilitate this public disclosure process.

    Consistent with Executive Order 12600, please designate in your application any information that you believe is exempt from disclosure under Exemption 4. In the appropriate Appendix section of your application, under “Other Attachments Form,” please list the page number or numbers on which we can find this information. For additional information please see 34 CFR 5.11(c).

    3. Submission Dates and Times:

    Applications Available: May 18, 2016.

    Deadline for Notice of Intent to Submit Applications: June 6, 2016.

    Informational Meetings: The i3 program intends to hold Webinars designed to provide technical assistance to interested applicants for all three types of grants. Detailed information regarding these meetings will be provided on the i3 Web site at http://innovation.ed.gov/what-we-do/innovation/investing-in-innovation-i3/.

    Deadline for Transmittal of Applications: July 15, 2016.

    Applications for grants under this competition must be submitted electronically using the Grants.gov Apply site (Grants.gov). For information (including dates and times) about how to submit your application electronically, or in paper format by mail or hand delivery if you qualify for an exception to the electronic submission requirement, please refer to Other Submission Requirements in section IV of this notice.

    We do not consider an application that does not comply with the deadline requirements.

    Individuals with disabilities who need an accommodation or auxiliary aid in connection with the application process should contact the person listed under For Further Information Contact in section VII of this notice. If the Department provides an accommodation or auxiliary aid to an individual with a disability in connection with the application process, the individual's application remains subject to all other requirements and limitations in this notice.

    Deadline for Intergovernmental Review: September 13, 2016.

    4. Intergovernmental Review: This competition is subject to Executive Order 12372 and the regulations in 34 CFR part 79. Information about Intergovernmental Review of Federal Programs under Executive Order 12372 is in the application package for this competition.

    5. Funding Restrictions: We reference regulations outlining funding restrictions in the Applicable Regulations section of this notice.

    6. Data Universal Numbering System Number, Taxpayer Identification Number, and System for Award Management: To do business with the Department of Education, you must—

    a. Have a Data Universal Numbering System (DUNS) number and a Taxpayer Identification Number (TIN);

    b. Register both your DUNS number and TIN with the System for Award Management (SAM) (formerly the Central Contractor Registry), the Government's primary registrant database;

    c. Provide your DUNS number and TIN on your application; and

    d. Maintain an active SAM registration with current information while your application is under review by the Department and, if you are awarded a grant, during the project period.

    You can obtain a DUNS number from Dun and Bradstreet at the following Web site: http://fedgov.dnb.com/webform. A DUNS number can be created within one to two business days.

    If you are a corporate entity, agency, institution, or organization, you can obtain a TIN from the Internal Revenue Service. If you are an individual, you can obtain a TIN from the Internal Revenue Service or the Social Security Administration. If you need a new TIN, please allow two to five weeks for your TIN to become active.

    The SAM registration process can take approximately seven business days, but may take upwards of several weeks, depending on the completeness and accuracy of the data you enter into the SAM database. Thus, if you think you might want to apply for Federal financial assistance under a program administered by the Department, please allow sufficient time to obtain and register your DUNS number and TIN. We strongly recommend that you register early.

    Note:

    Once your SAM registration is active, it may be 24 to 48 hours before you can access the information in, and submit an application through, Grants.gov.

    If you are currently registered with SAM, you may not need to make any changes. However, please make certain that the TIN associated with your DUNS number is correct. Also note that you will need to update your registration annually. This may take three or more business days.

    Information about SAM is available at www.SAM.gov. To further assist you with obtaining and registering your DUNS number and TIN in SAM or updating your existing SAM account, we have prepared a SAM.gov Tip Sheet, which you can find at: http://www2.ed.gov/fund/grant/apply/sam-faqs.html.

    In addition, if you are submitting your application via Grants.gov, you must (1) be designated by your organization as an Authorized Organization Representative (AOR); and (2) register yourself with Grants.gov as an AOR. Details on these steps are outlined at the following Grants.gov Web page: www.grants.gov/web/grants/register.html.

    7. Other Submission Requirements: Applications for grants for the i3 program must be submitted electronically unless you qualify for an exception to this requirement in accordance with the instructions in this section.

    a. Electronic Submission of Applications.

    Applications for grants under the i3 program, CFDA number 84.411A (Scale-up grants), must be submitted electronically using the Governmentwide Grants.gov Apply site at www.Grants.gov. Through this site, you will be able to download a copy of the application package, complete it offline, and then upload and submit your application. You may not email an electronic copy of a grant application to us.

    We will reject your application if you submit it in paper format unless, as described elsewhere in this section, you qualify for one of the exceptions to the electronic submission requirement and submit, no later than two weeks before the application deadline date, a written statement to the Department that you qualify for one of these exceptions. Further information regarding calculation of the date that is two weeks before the application deadline date is provided later in this section under Exception to Electronic Submission Requirement.

    You may access the electronic grant application for the i3 program at www.Grants.gov. You must search for the downloadable application package for this competition by the CFDA number. Do not include the CFDA number's alpha suffix in your search (e.g., search for 84.411, not 84.411A).

    Please note the following:

    • When you enter the Grants.gov site, you will find information about submitting an application electronically through the site, as well as the hours of operation.

    • Applications received by Grants.gov are date and time stamped. Your application must be fully uploaded and submitted and must be date and time stamped by the Grants.gov system no later than 4:30:00 p.m., Washington, DC time, on the application deadline date. Except as otherwise noted in this section, we will not accept your application if it is received—that is, date and time stamped by the Grants.gov system—after 4:30:00 p.m., Washington, DC time, on the application deadline date. We do not consider an application that does not comply with the deadline requirements. When we retrieve your application from Grants.gov, we will notify you if we are rejecting your application because it was date and time stamped by the Grants.gov system after 4:30:00 p.m., Washington, DC time, on the application deadline date.

    • The amount of time it can take to upload an application will vary depending on a variety of factors, including the size of the application and the speed of your Internet connection. Therefore, we strongly recommend that you do not wait until the application deadline date to begin the submission process through Grants.gov.

    • You should review and follow the Education Submission Procedures for submitting an application through Grants.gov that are included in the application package for this competition to ensure that you submit your application in a timely manner to the Grants.gov system. You can also find the Education Submission Procedures pertaining to Grants.gov under News and Events on the Department's G5 system home page at www.G5.gov. In addition, for specific guidance and procedures for submitting an application through Grants.gov, please refer to the Grants.gov Web site at: www.grants.gov/web/grants/applicants/apply-for-grants.html.

    • You will not receive additional point value because you submit your application in electronic format, nor will we penalize you if you qualify for an exception to the electronic submission requirement, as described elsewhere in this section, and submit your application in paper format.

    • You must submit all documents electronically, including all information you typically provide on the following forms: the Application for Federal Assistance (SF 424), the Department of Education Supplemental Information for SF 424, Budget Information—Non-Construction Programs (ED 524), and all necessary assurances and certifications.

    • You must upload any narrative sections and all other attachments to your application as files in a read-only, non-modifiable Portable Document Format (PDF). Do not upload an interactive or fillable PDF file. If you upload a file type other than a read-only, non-modifiable PDF (e.g., Word, Excel, WordPerfect, etc.) or submit a password-protected file, we will not review that material. Please note that this could result in your application not being considered for funding because the material in question—for example, the project narrative—is critical to a meaningful review of your proposal. For that reason it is important to allow yourself adequate time to upload all material as PDF files. The Department will not convert material from other formats to PDF.

    • Your electronic application must comply with any page-limit requirements described in this notice.

    • After you electronically submit your application, you will receive from Grants.gov an automatic notification of receipt that contains a Grants.gov tracking number. This notification indicates receipt by Grants.gov only, not receipt by the Department. Grants.gov will also notify you automatically by email if your application met all the Grants.gov validation requirements or if there were any errors (such as submission of your application by someone other than a registered Authorized Organization Representative, or inclusion of an attachment with a file name that contains special characters). You will be given an opportunity to correct any errors and resubmit, but you must still meet the deadline for submission of applications.

    Once your application is successfully validated by Grants.gov, the Department will retrieve your application from Grants.gov and send you an email with a unique PR/Award number for your application.

    These emails do not mean that your application is without any disqualifying errors. While your application may have been successfully validated by Grants.gov, it must also meet the Department's application requirements as specified in this notice and in the application instructions. Disqualifying errors could include, for instance, failure to upload attachments in a read-only, non-modifiable PDF; failure to submit a required part of the application; or failure to meet applicant eligibility requirements. It is your responsibility to ensure that your submitted application has met all of the Department's requirements.

    • We may request that you provide us original signatures on forms at a later date. Application Deadline Date Extension in Case of Technical Issues with the Grants.gov System: If you are experiencing problems submitting your application through Grants.gov, please contact the Grants.gov Support Desk, toll free, at 1-800-518-4726. You must obtain a Grants.gov Support Desk Case Number and must keep a record of it.

    If you are prevented from electronically submitting your application on the application deadline date because of technical problems with the Grants.gov system, we will grant you an extension until 4:30:00 p.m., Washington, DC time, the following business day to enable you to transmit your application electronically or by hand delivery. You also may mail your application by following the mailing instructions described elsewhere in this notice.

    If you submit an application after 4:30:00 p.m., Washington, DC time, on the application deadline date, please contact the person listed under For Further Information Contact in section VII of this notice and provide an explanation of the technical problem you experienced with Grants.gov, along with the Grants.gov Support Desk Case Number. We will accept your application if we can confirm that a technical problem occurred with the Grants.gov system and that the problem affected your ability to submit your application by 4:30:00 p.m., Washington, DC time, on the application deadline date. We will contact you after we determine whether your application will be accepted.

    Note:

    The extensions to which we refer in this section apply only to the unavailability of, or technical problems with, the Grants.gov system. We will not grant you an extension if you failed to fully register to submit your application to Grants.gov before the application deadline date and time or if the technical problem you experienced is unrelated to the Grants.gov system.

    Exception to Electronic Submission Requirement: You qualify for an exception to the electronic submission requirement, and may submit your application in paper format, if you are unable to submit an application through the Grants.gov system because-—

    • You do not have access to the Internet; or

    • You do not have the capacity to upload large documents to the Grants.gov system;

    and

    • No later than two weeks before the application deadline date (14 calendar days or, if the fourteenth calendar day before the application deadline date falls on a Federal holiday, the next business day following the Federal holiday), you mail or fax a written statement to the Department, explaining which of the two grounds for an exception prevents you from using the Internet to submit your application.

    If you mail your written statement to the Department, it must be postmarked no later than two weeks before the application deadline date. If you fax your written statement to the Department, we must receive the faxed statement no later than two weeks before the application deadline date.

    Address and mail or fax your statement to: Kelly Terpak, U.S. Department of Education, 400 Maryland Avenue SW., Room 4W312, Washington, DC 20202. FAX: (202) 401-4123.

    Your paper application must be submitted in accordance with the mail or hand delivery instructions described in this notice.

    b. Submission of Paper Applications by Mail.

    If you qualify for an exception to the electronic submission requirement, you may mail (through the U.S. Postal Service or a commercial carrier) your application to the Department. You must mail the original and two copies of your application, on or before the application deadline date, to the Department at the following address: U.S. Department of Education, Application Control Center, Attention: (CFDA Number 84.411A) LBJ Basement Level 1, 400 Maryland Avenue SW., Washington, DC 20202-4260.

    You must show proof of mailing consisting of one of the following:

    (1) A legibly dated U.S. Postal Service postmark.

    (2) A legible mail receipt with the date of mailing stamped by the U.S. Postal Service.

    (3) A dated shipping label, invoice, or receipt from a commercial carrier.

    (4) Any other proof of mailing acceptable to the Secretary of the U.S. Department of Education.

    If you mail your application through the U.S. Postal Service, we do not accept either of the following as proof of mailing:

    (1) A private metered postmark.

    (2) A mail receipt that is not dated by the U.S. Postal Service.

    Note:

    The U.S. Postal Service does not uniformly provide a dated postmark. Before relying on this method, you should check with your local post office.

    We will not consider applications postmarked after the application deadline date.

    c. Submission of Paper Applications by Hand Delivery.

    If you qualify for an exception to the electronic submission requirement, you (or a courier service) may deliver your paper application to the Department by hand. You must deliver the original and two copies of your application by hand, on or before the application deadline date, to the Department at the following address: U.S. Department of Education, Application Control Center, Attention: (CFDA Number 84.411A), 550 12th Street SW., Room 7039, Potomac Center Plaza, Washington, DC 20202-4260.

    The Application Control Center accepts hand deliveries daily between 8:00 a.m. and 4:30:00 p.m., Washington, DC time, except Saturdays, Sundays, and Federal holidays.

    Note for Mail or Hand Delivery of Paper Applications:

    If you mail or hand deliver your application to the Department—

    (1) You must indicate on the envelope and—if not provided by the Department—in Item 11 of the SF 424 the CFDA number, including suffix letter, if any, of the competition under which you are submitting your application; and

    (2) The Application Control Center will mail to you a notification of receipt of your grant application. If you do not receive this notification within 15 business days from the application deadline date, you should call the U.S. Department of Education Application Control Center at (202) 245-6288.

    V. Application Review Information

    1. Selection Criteria: The selection criteria for the Scale-up competition are from the 2013 i3 NFP and 34 CFR 75.210, and are listed below.

    The points assigned to each criterion are indicated in the parentheses next to the criterion. An applicant may earn up to a total of 100 points based on the selection criteria for the application.

    A. Significance (up to 10 points).

    In determining the significance of the project, the Secretary considers the following factors:

    (1) The magnitude or severity of the problem to be addressed by the proposed project. (34 CFR 75.210)

    (2) The extent to which the proposed project involves the development or demonstration of promising new strategies that build on, or are alternatives to, existing strategies. (34 CFR 75.210)

    (3) The extent to which the proposed project represents an exceptional approach to the priority or priorities established for the competition. (34 CFR 75.210)

    B. Strategy to Scale (up to 35 points).

    In determining the applicant's capacity to scale the proposed project, the Secretary considers the following factors:

    (1) The extent to which the applicant demonstrates there is unmet demand for the process, product, strategy, or practice that will enable the applicant to reach the level of scale that is proposed in the application. (34 CFR 75.210)

    (2) The extent to which the applicant will use grant funds to address a particular barrier or barriers that prevented the applicant, in the past, from reaching the level of scale proposed in the application. (2013 i3 NFP)

    C. Quality of the Project Design and Management Plan (up to 35 points).

    In determining the quality of the proposed project design, the Secretary considers the following factors:

    (1) The extent to which the goals, objectives, and outcomes to be achieved by the proposed project are clearly specified and measurable. (34 CFR 75.210)

    (2) The adequacy of the management plan to achieve the objectives of the proposed project on time and within budget, including clearly defined responsibilities, timelines, and milestones for accomplishing project tasks. (34 CFR 75.210)

    (3) The clarity and coherence of the applicant's multi-year financial and operating model and accompanying plan to operate the project at a national or regional level (as defined in this notice) during the project period. (2013 i3 NFP)

    (4) The adequacy of procedures for ensuring feedback and continuous improvement in the operation of the proposed project. (34 CFR 75.210)

    D. Quality of the Project Evaluation (up to 20 points).

    In determining the quality of the project evaluation to be conducted, the Secretary considers the following factors:

    (1) The extent to which the methods of evaluation will, if well implemented, produce evidence about the project's effectiveness that would meet the What Works Clearinghouse Evidence Standards without reservations. (34 CFR 75.210)

    (2) The clarity and importance of the key questions to be addressed by the project evaluation, and the appropriateness of the methods for how each question will be addressed. (2013 i3 NFP)

    (3) The extent to which the evaluation will study the project at the proposed level of scale, including, where appropriate, generating information about potential differential effectiveness of the project in diverse settings and for diverse student population groups. (2013 i3 NFP)

    (4) The extent to which the evaluation plan includes a clear and credible analysis plan, including a proposed sample size and minimum detectable effect size that aligns with the expected project impact, and an analytic approach for addressing the research questions. (2013 i3 NFP)

    (5) The extent to which the evaluation plan clearly articulates the key components and outcomes of the project, as well as a measurable threshold for acceptable implementation. (2013 i3 NFP)

    (6) The extent to which the proposed project plan includes sufficient resources to carry out the project evaluation effectively. (2013 i3 NFP)

    Note:

    Applicants may wish to review the following technical assistance resources on evaluation: (1) WWC Procedures and Standards Handbook: http://ies.ed.gov/ncee/wwc/references/idocviewer/doc.aspx?docid=19&tocid=1; and (2) IES/NCEE Technical Methods papers: http://ies.ed.gov/ncee/tech_methods/. In addition, applicants may view two optional Webinar recordings that were hosted by the Institute of Education Sciences. The first Webinar discussed strategies for designing and executing well-designed quasi-experimental design studies and is available at: http://ies.ed.gov/ncee/wwc/Multimedia.aspx?sid=23. The second Webinar focused on more rigorous evaluation designs, discussing strategies for designing and executing studies that meet WWC evidence standards without reservations. This Webinar is available at: http://ies.ed.gov/ncee/wwc/Multimedia.aspx?sid=18.

    2. Review and Selection Process: Before making awards, we will screen applications submitted in accordance with the requirements in this notice to determine whether applications have met eligibility and other requirements. This screening process may occur at various stages of the process; applicants that are determined to be ineligible will not receive a grant, regardless of peer reviewer scores or comments.

    For the application review process, we will use independent peer reviewers with varied backgrounds and professions including pre-kindergarten-grade 12 teachers and principals, college and university educators, researchers and evaluators, social entrepreneurs, strategy consultants, grant makers and managers, and others with education expertise. All reviewers will be thoroughly screened for conflicts of interest to ensure a fair and competitive review process.

    Peer reviewers will read, prepare a written evaluation of, and score the assigned applications, using the selection criteria provided in this notice. For Scale-up grant applications we intend to conduct a single-tier review. If an eligible applicant addresses the first competitive preference priority (Enabling Broad Adoption of Effective Practices), reviewers will review and score this competitive preference priority. If competitive preference priority points are awarded, those points will be included in the eligible applicant's overall score. If an eligible applicant addresses the second competitive preference priority (Supporting Novice i3 Applicants), the Department will review its list of previous i3 grantees in scoring this competitive preference priority.

    We remind potential applicants that in reviewing applications in any discretionary grant competition, the Secretary may consider, under 34 CFR 75.217(d)(3), the past performance of the applicant in carrying out a previous award, such as the applicant's use of funds, achievement of project objectives, and compliance with grant conditions. The Secretary may also consider whether the applicant failed to submit a timely performance report or submitted a report of unacceptable quality.

    In addition, in making a competitive grant award, the Secretary requires various assurances, including those applicable to Federal civil rights laws that prohibit discrimination in programs or activities receiving Federal financial assistance from the Department of Education (34 CFR 100.4, 104.5, 106.4, 108.8, and 110.23).

    3. Risk Assessment and Special Conditions: Consistent with 2 CFR 200.205, before awarding grants under this program the Department conducts a review of the risks posed by applicants. Under 2 CFR 3474.10, the Secretary may impose special conditions and, in appropriate circumstances, high-risk conditions on a grant if the applicant or grantee is not financially stable; has a history of unsatisfactory performance; has a financial or other management system that does not meet the standards in 2 CFR part 200, subpart D; has not fulfilled the conditions of a prior grant; or is otherwise not responsible.

    VI. Award Administration Information

    1. Award Notices: If your application is successful, we notify your U.S. Representative and U.S. Senators and send you a Grant Award Notification (GAN); or we may send you an email containing a link to access an electronic version of your GAN. We may notify you informally, also.

    If your application is not evaluated or not selected for funding, we notify you.

    2. Administrative and National Policy Requirements: We identify administrative and national policy requirements in the application package and reference these and other requirements in the Applicable Regulations section of this notice.

    We reference the regulations outlining the terms and conditions of an award in the Applicable Regulations section of this notice and include these and other specific conditions in the GAN. The GAN also incorporates your approved application as part of your binding commitments under the grant.

    3. Reporting: (a) If you apply for a grant under this competition, you must ensure that you have in place the necessary processes and systems to comply with the reporting requirements in 2 CFR part 170 should you receive funding under the competition. This does not apply if you have an exception under 2 CFR 170.110(b).

    (b) At the end of your project period, you must submit a final performance report, including financial information, as directed by the Secretary. If you receive a multiyear award, you must submit an annual performance report that provides the most current performance and financial expenditure information as directed by the Secretary under 34 CFR 75.118. The Secretary may also require more frequent performance reports under 34 CFR 75.720(c). For specific requirements on reporting, please go to www.ed.gov/fund/grant/apply/appforms/appforms.html.

    (c) Under 34 CFR 75.250(b), the Secretary may provide a grantee with additional funding for data collection analysis and reporting. In this case the Secretary establishes a data collection period.

    4. Performance Measures: The overall purpose of the i3 program is to expand the implementation of, and investment in, innovative practices that are demonstrated to have an impact on improving student achievement or student growth for high-need students. We have established several performance measures for the i3 Scale-up grants.

    Short-term performance measures: (1) The percentage of grantees that reach their annual target number of students as specified in the application; (2) the percentage of programs, practices, or strategies supported by a Scale-up grant with ongoing well-designed and independent evaluations that will provide evidence of their effectiveness at improving student outcomes at scale; (3) the percentage of programs, practices, or strategies supported by a Scale-up grant with ongoing evaluations that are providing high-quality implementation data and performance feedback that allow for periodic assessment of progress toward achieving intended outcomes; and (4) the cost per student actually served by the grant.

    Long-term performance measures: (1) The percentage of grantees that reach the targeted number of students specified in the application; (2) the percentage of programs, practices, or strategies supported by a Scale-up grant that implement a completed well-designed, well-implemented, and independent evaluation that provides evidence of their effectiveness at improving student outcomes at scale; (3) the percentage of programs, practices, or strategies supported by a Scale-up grant with a completed well-designed, well-implemented, and independent evaluation that provides information about the key elements and the approach of the project so as to facilitate replication or testing in other settings; and (4) the cost per student for programs, practices, or strategies that were proven to be effective at improving educational outcomes for students.

    5. Continuation Awards: In making a continuation award under 34 CFR 75.253, the Secretary considers, among other things: Whether a grantee has made substantial progress in achieving the goals and objectives of the project; whether the grantee has expended funds in a manner that is consistent with its approved application and budget; and, if the Secretary has established performance measurement requirements, the performance targets in the grantee's approved application.

    In making a continuation award, the Secretary also considers whether the grantee is operating in compliance with the assurances in its approved application, including those applicable to Federal civil rights laws that prohibit discrimination in programs or activities receiving Federal financial assistance from the Department (34 CFR 100.4, 104.5, 106.4, 108.8, and 110.23).

    VII. Agency Contact FOR FURTHER INFORMATION CONTACT:

    Kelly Terpak, U.S. Department of Education, 400 Maryland Avenue SW., Room 4W312 Washington, DC 20202. Telephone: (202) 453-7122. FAX: (202) 401-4123 or by email: [email protected]

    If you use a TDD or a TTY, call the Federal Relay Service, toll free, at 1-800-877-8339.

    VIII. Other Information

    Accessible Format: Individuals with disabilities can obtain this document and a copy of the application package in an accessible format (e.g., Braille, large print, audiotape, or compact disc) on request to either program contact person listed under FOR FURTHER INFORMATION CONTACT in section VII of this notice.

    Electronic Access to This Document: The official version of this document is the document published in the Federal Register. Free Internet access to the official edition of the Federal Register and the Code of Federal Regulations is available via the Federal Digital System at: www.thefederalregister.org/fdsys. At this site you can view this document, as well as all other documents of this Department published in the Federal Register, in text or PDF. To use PDF you must have Adobe Acrobat Reader, which is available free at the site.

    You may also access documents of the Department published in the Federal Register by using the article search feature at: www.federalregister.gov. Specifically, through the advanced search feature at this site, you can limit your search to documents published by the Department.

    Dated: May 11, 2016. Nadya Chinoy Dabby, Assistant Deputy Secretary for Innovation and Improvement.
    [FR Doc. 2016-11531 Filed 5-13-16; 8:45 am] BILLING CODE 4000-01-P
    DEPARTMENT OF EDUCATION Applications for New Awards; Investing in Innovation Fund—Validation Grants AGENCY:

    Office of Innovation and Improvement, Department of Education.

    ACTION:

    Notice.

    Overview Information Investing in Innovation Fund—Validation Grants

    Notice inviting applications for new awards for fiscal year (FY) 2016.

    Catalog of Federal Domestic Assistance (CFDA) Number: 84.411B (Validation Grants).

    Dates:

    Applications Available: May 18, 2016. Deadline for Notice of Intent to Apply: June 6, 2016. Deadline for Transmittal of Applications: July 15, 2016. Deadline for Intergovernmental Review: September 13, 2016.

    Full Text of Announcement I. Funding Opportunity Description

    Purpose of Program: The Investing in Innovation Fund (i3), established under section 14007 of the American Recovery and Reinvestment Act of 2009 (ARRA), provides funding to support (1) local educational agencies (LEAs), and (2) nonprofit organizations in partnership with (a) one or more LEAs or (b) a consortium of schools. The i3 program is designed to generate and validate solutions to persistent educational challenges and to support the expansion of effective solutions to serve substantially larger numbers of students. The central design element of the i3 program is its multi-tier structure that links the amount of funding that an applicant may receive to the quality of the evidence supporting the efficacy of the proposed project. Applicants proposing practices supported by limited evidence can receive relatively small grants that support the development and initial evaluation of promising practices and help to identify new solutions to pressing challenges; applicants proposing practices supported by evidence from rigorous evaluations, such as large randomized controlled trials, can receive sizable grants to support expansion across the country. This structure provides incentives for applicants to build evidence of effectiveness of their proposed projects and to address the barriers to serving more students across schools, districts, and States.

    As importantly, all i3 projects are required to generate additional evidence of effectiveness. All i3 grantees must use part of their budgets to conduct independent evaluations (as defined in this notice) of their projects. This requirement ensures that projects funded under the i3 program contribute significantly to improving the information available to practitioners and policymakers about which practices work, for which types of students, and in what contexts.

    The Department awards three types of grants under this program: “Development” grants, “Validation” grants, and “Scale-up” grants. These grants differ in terms of the level of prior evidence of effectiveness required for consideration of funding, the level of scale the funded project should reach, and, consequently, the amount of funding available to support the project.

    This notice invites applications for Validation grants only. The notice inviting applications for Scale-up grants is published elsewhere in this issue of the Federal Register. The notice inviting applications for Development grants was published in the Federal Register on April 25, 2016 (81 FR 24070) and is available at https://www.thefederalregister.org/fdsys/pkg/FR-2016-04-25/pdf/2016-09436.pdf.

    Validation grants provide funding to support expansion of projects supported by moderate evidence of effectiveness (as defined in this notice) to the regional level (as defined in this notice) or to the national level (as defined in this notice). In addition, as Validation projects seek to improve outcomes for students in high need schools, they also generate important information about an intervention's effectiveness and the contexts for which a practice is most effective. We expect that Validation grants will increase practitioners' and policymakers' understanding of the implementation of proven practices, and help identify effective approaches to expanding such practices while also maintaining or increasing their effectiveness across contexts.

    All Validation grantees must evaluate the effectiveness of the i3-supported practice that the project implements and expands. The evaluation of a Validation project must identify the core elements of, and codify, the i3-supported practice that the project implements in order to support adoption or replication by other entities. We also expect that evaluations of Validation grants will be conducted and disaggregated in a variety of contexts and for a variety of students in order to determine the context(s) and population(s) for which the i3-supported practice is most effective.

    We remind LEAs of the continuing applicability of the provisions of the Individuals with Disabilities Education Act (IDEA) for students who may be served under i3 grants. Any grants in which LEAs participate must be consistent with the rights, protections, and processes established under IDEA for students who are receiving special education and related services or who are in the process of being evaluated to determine their eligibility for such services.

    As described later in this notice, an applicant is required, as a condition of receiving assistance under this program, to make civil rights assurances, including an assurance that its program or activity will comply with section 504 of the Rehabilitation Act of 1973, as amended, and the Department's section 504 implementing regulations, which prohibit discrimination on the basis of disability. Regardless of whether a student with disabilities is specifically targeted as a “high-need student” (as defined in this notice) in a particular grant application, recipients are required to comply with all legal nondiscrimination requirements, including, but not limited to the obligation to ensure that students with disabilities are not denied access to the benefits of the recipient's program because of their disability. The Department also enforces title II of the Americans with Disabilities Act (ADA), as well as the regulations implementing title II of the ADA, which prohibit discrimination on the basis of disability by public entities.

    Furthermore, title VI and title IX of the Civil Rights Act of 1964 prohibit discrimination on the basis of race, color, and national origin, and sex, respectively. On December 2, 2011, the Departments of Education and Justice jointly issued guidance that explains how educational institutions can promote student diversity or avoid racial isolation within the framework of title VI (e.g., through consideration of the racial demographics of neighborhoods when drawing assignment zones for schools or through targeted recruiting efforts). The “Guidance on the Voluntary Use of Race to Achieve Diversity and Avoid Racial Isolation in Elementary and Secondary Schools” is available on the Department's Web site at http://www2.ed.gov/about/offices/list/ocr/docs/guidance-ese-201111.pdf.1

    1 In both 2013 and 2014, the Departments reiterated the continued viability of this 2011 guidance after two relevant Supreme Court decisions. Those guidance documents may be found at www.ed.gov/ocr/letters/colleague-201309.pdf, www.ed.gov/ocr/docs/dcl-qa-201309.pdf, and www.ed.gov/ocr/letters/colleague-201405-schuette-guidance.pdf.

    Background

    Through its competitions, the i3 program seeks to improve the academic achievement of students in high-need schools by identifying and scaling promising solutions to pressing challenges in kindergarten through grade 12 (K-12). Now in its seventh year, the i3 program has invested over $1.3 billion—matched by over $200 million in private sector resources—in a portfolio of solutions and rigorous evaluations of several approaches that address critical challenges in education. When selecting the priorities for a given competition, the Department considers several factors including policy priorities, the need for new solutions in a particular priority area, the extent of the existing evidence supporting effective practices in a particular priority area, whether other available funding exists for a particular priority area, and the results and lessons learned from funded projects from prior i3 competitions. This year's competition does not include specific priorities for students with disabilities and English learners, as the program has successfully funded a range of projects serving these high-need populations under i3's broader priorities in previous competitions. Additionally, all applicants continue to be required to serve high-need student populations, and we continue to encourage applicants to consider how their proposed projects could serve students with disabilities or English learners. Applicants are encouraged to design an evaluation that will report findings on English learners, students with disabilities, and other subgroups.

    All i3 grantees are expected to improve academic outcomes for high-need students (as defined in this notice). The FY 2016 Validation competition includes four absolute priorities. These absolute priorities are intended to address persistent challenges in public education for which there are solutions that are supported by rigorous evidence. We are particularly interested in supporting such efforts in rural areas. As such, and consistent with the past three competitions, applicants applying under the Serving Rural Communities priority (Absolute Priority 4) must also address one of the other three absolute priorities established for the FY 2016 i3 Validation competition. This structure has resulted in a strong set of grantees that are addressing the unique challenges in rural communities. We also include one competitive preference priority for novice i3 applicants.

    First, we include an absolute priority for projects designed to implement, and support the transition to, internationally benchmarked, college- and career-ready academic content standards and associated assessments. Many States have raised the expectations for what schools should teach and their students should learn and do across the K-12 grade span by adopting new, more rigorous standards and assessments aligned to the demands of college and careers. Emerging research confirms that these exams are aligned to more rigorous standards.2 Educators are now faced with the important task of effectively implementing these higher standards and ensuring their students are adequately prepared for the associated assessments in order to ensure that all students are ready for post-secondary opportunities and their careers. Furthermore, throughout this continuing transition to higher standards and new assessments, schools and school districts need to continue to develop evidence-based approaches to increase the rigor of teaching and learning across various academic settings. For example, efforts are underway in districts across the country to provide teachers and school leaders with rich, student-specific information based on formative and summative assessments to help educators understand why students might be struggling—thereby enabling them to better align their subsequent instruction. Through this priority, the Department seeks to invest in strategies that leverage data and results from internationally benchmarked, college- and career-ready assessments to inform instruction and, ultimately, to support and improve student achievement.

    2 Doorey, N. and Polikoff, M. Evaluating the Content and Quality of Next Generation Assessments (2016). Washington, DC: Thomas Fordham Institute. Available at: http://edex.s3-us-west-2.amazonaws.com/%2802.09%20-%20Final%20Published%29%20Evaluating%20the%20Content%20and%20Quality%20of%20Next%20Generation%20Assessments.pdf.

    Second, we include an absolute priority for projects promoting science, technology, engineering and mathematics (STEM) education. Ensuring that all students can access and excel in STEM fields—which includes coding and computer science—is essential to meeting the needs of our Nation's economy and to our future prosperity.3 For example, the President highlights computer science specifically in his Computer Science for All Initiative.4 Careers in STEM fields are growing, as are the knowledge and skills required to compete for and succeed in these specialized jobs.5 Recent Bureau of Labor Statistics data shows that, between 2010 and 2020, employment in STEM occupations is expected to expand faster than employment in non-STEM occupations (by 17 versus 14 percent).6 Also, by 2018, 51 percent of STEM jobs are projected to be in computer science-related fields.7 Moreover, STEM-related skills, such as data analysis and computational and technical literacy, are relevant to a wide array of postsecondary educational and professional pursuits. The Department seeks to provide students with increased access to rigorous and engaging STEM programs and instruction grounded in authentic STEM experiences (as defined in this notice), in both formal and informal learning settings, and resulting in improved STEM-related academic outcomes.

    3 Langdon, D., McKittrick, G., Beede, D., Khan, B., and Doms, M. U.S. Department of Commerce Economics and Statistics Administration. STEM: Good Jobs Now and for the Future (July 2011). ESA Issue Brief #03-11. Available at: www.esa.doc.gov/sites/default/files/stemfinalyjuly14_1.pdf.

    4 Smith, Megan. Computer Science for All (January 2016). https://www.whitehouse.gov/blog/2016/01/30/computer-science-all.

    5 Chairman's Staff of the Joint Economic Committee. Calculations using data from the Bureau of Labor Statistics. Employment Projections: 2010-20. Table 1.7 Occupational Employment and Job Openings Data, Projected 2010-20, and Worker Characteristics, 2010. February 2012. Available at: http://iedse.org/temp/wp-content/uploads/2015/02/www.iedse_.org_documents_STEM-Education-Preparing-for-the-Jobs-of-the-Future-.pdf. For the purposes of this calculation, STEM occupations are defined as in the U.S. Department of Commerce's Economics and Statistics Administration report, STEM: Good Jobs Now and for the Future. ESA Issue Brief #03-11. July 2011.

    6 Chairman's Staff of the Joint Economic Committee. Calculations using data from the Bureau of Labor Statistics. Employment Projections: 2010-20. Table 1.7 Occupational Employment and Job Openings Data, Projected 2010-20, and Worker Characteristics, 2010. February 2012. Available at: http://bls.gov/emp/. For the purposes of this calculation, STEM occupations are defined as in the U.S. Department of Commerce's Economics and Statistics Administration report, STEM: Good Jobs Now and for the Future. ESA Issue Brief #03-11. July 2011.

    7 Carnevale, A., Smith, N., and Melton, M. Center on Education and the Workforce, Georgetown University. Science Technology Engineering Mathematics (2014). Available at: https://cew.georgetown.edu/wp-content/uploads/2014/11/stem-complete.pdf.

    Third, we include an absolute priority focused on improving low-performing schools. The Department looks to support whole-school models and strategies that lead to significant and sustained improvement in individual student performance and overall school performance and culture. Thousands of schools do not adequately prepare students to achieve at grade level and struggle to overcome the gaps in student performance across socioeconomic and racial groups.8 Research shows that the greatest portion of the gap in performance between Black and White students comes from the differences within a school as opposed to differences across school settings.9 Furthermore, while graduation rates have been steadily improving nationwide, in 17 States, less than 70 percent of students from economically disadvantaged backgrounds graduate from high school.10 While considerable attention has been paid to these schools in recent years, the pace of progress continues to be slow and school turnaround successes tend to be isolated rather than systematic. Whole-school models that successfully transform school culture and student outcomes can be comprised of a range of strategies, such as harnessing teacher leadership,11 creating small learning communities, academic interventions, and school redesign. Overall, we seek to support projects that work across schools and districts in multiple regions to transform the learning environment by instituting a range of evidence-based practices.

    8 PISA Results from 2012. Country Note: United States. www.oecd.org/pisa/keyfindings/PISA-2012-results-US.pdf.

    9 Bohrnstedt, G., Kitmitto, S., Ogut, B., Sherman, D., and Chan, D. (2015). School Composition and the Black-White Achievement Gap (NCES 2015-018). U.S. Department of Education, Washington, DC: National Center for Education Statistics. Retrieved September 24, 2015 from http://nces.ed.gov/pubsearch.

    10 U.S. Department of Education, National Center for Education Statistics (NCES): https://nces.ed.gov/ccd/tables/ACGR_RE_and_characteristics_2013-14.asp.

    11 School Turnarounds: How Successful Principals Use Teacher Leadership. (March 2016). http://publicimpact.com/school-turnarounds-how-successful-principals-use-teacher-leadership/.

    Finally, we include an absolute priority for serving rural communities. Students living in rural communities face unique challenges, such as lack of access to specialized courses or college advising. Applicants applying under this priority must also address one of the other three absolute priorities established for the FY 2016 i3 Validation competition, while serving students enrolled in rural local educational agencies (as defined in this notice).

    We also include one competitive preference priority in the FY 2016 Validation competition. To expand the reach of the i3 program and encourage entities that have not previously received an i3 grant to apply, the Department includes a competitive preference priority for novice i3 applicants. A novice i3 applicant is an applicant that has never received a grant under the i3 program. An applicant must identify whether it is a novice applicant when completing the applicant information sheet. Instructions on how to comp