Federal Register Vol. 82, No.13,

Federal Register Volume 82, Issue 13 (January 23, 2017)

Page Range7631-8129
FR Document

82_FR_13
Current View
Page and SubjectPDF
82 FR 8115 - Amending the Civil Service Rules, Executive Order 13488, and Executive Order 13467 To Modernize the Executive Branch-Wide Governance Structure and Processes for Security Clearances, Suitability and Fitness for Employment, and Credentialing, and Related MattersPDF
82 FR 7831 - Sunshine Act MeetingsPDF
82 FR 7880 - Sunshine Act Meeting; National Science BoardPDF
82 FR 7830 - Sunshine Act MeetingPDF
82 FR 7831 - Sunshine Act; Notice of MeetingPDF
82 FR 7803 - Sunshine Act Meetings NoticePDF
82 FR 7913 - Environmental Impact Statement-Transmission System Vegetation Management ProgramPDF
82 FR 7800 - Science Advisory Board (SAB); Notice of Public MeetingPDF
82 FR 7815 - External Peer Review MeetingPDF
82 FR 7814 - External Peer Review MeetingPDF
82 FR 7807 - Privacy Act of 1974; System of RecordsPDF
82 FR 7862 - Notice of Lodging of Proposed Consent Decree Under the Safe Drinking Water ActPDF
82 FR 7822 - Environmental Impact Statements; Notice of AvailabilityPDF
82 FR 7797 - Sensors and Instrumentation Technical Advisory Committee; Notice of Partially Closed MeetingPDF
82 FR 7797 - Information Systems Technical Advisory Committee; Notice of Partially Closed MeetingPDF
82 FR 7824 - Proposed Information Collection Request; Comment Request; National Estuary Program (Renewal)PDF
82 FR 7883 - New Postal ProductsPDF
82 FR 7820 - Proposed Consent Decree, Clean Air Act Citizen SuitPDF
82 FR 7834 - Request for Public Comment on the Proposed Adoption of Administration for Native Americans Program Policies and ProceduresPDF
82 FR 7733 - Regulations Issued Under Authority of the Export Apple Act and Export Grapes and Plums; Changes to Export Reporting RequirementsPDF
82 FR 7862 - Notice of Lodging of Proposed Consent Decree Under the Comprehensive Environmental Response, Compensation, and Liability ActPDF
82 FR 7867 - Michigan State Plan; Change in Level of Federal Enforcement: Marine ConstructionPDF
82 FR 7783 - U.S. Standards for Grades of Catfish and Catfish ProductsPDF
82 FR 7795 - Privacy Act of 1974; System of RecordsPDF
82 FR 7868 - Curtis-Strauss LLC: Grant of Expansion of RecognitionPDF
82 FR 7731 - Pacific Island Fisheries; 2017 Northwestern Hawaiian Islands Lobster Harvest GuidelinePDF
82 FR 7866 - TUV Rheinland of North America, Inc.: Grant of Expansion of Recognition and Modification to the NRTL Program's List of Appropriate Test StandardsPDF
82 FR 7864 - Intertek Testing Services NA, Inc.: Grant of Expansion of RecognitionPDF
82 FR 7869 - Occupational Safety and Health Administration Maritime Advisory Committee for Occupational Safety and Health (MACOSH)PDF
82 FR 7917 - Twenty First RTCA SC-223 Internet Protocol Suite (IPS) and AeroMACS PlenaryPDF
82 FR 7770 - Federal Acquisition Regulation; Effective Communication Between Government and Industry; Extension of Time for CommentsPDF
82 FR 7863 - Agency Information Collection Activities; Submission for OMB Review; Comment Request; Energy Employees Occupational Illness Compensation Program Act FormsPDF
82 FR 7832 - Safety and Occupational Health Study Section (SOHSS), National Institute for Occupational Safety and Health (NIOSH or Institute)PDF
82 FR 7833 - Board of Scientific Counselors, National Center for Health Statistics: Notice of Charter RenewalPDF
82 FR 7857 - Generalized System of Preferences: Possible Modifications, 2016 ReviewPDF
82 FR 7803 - Procurement List; Additions And DeletionsPDF
82 FR 7802 - Procurement List; Proposed AdditionsPDF
82 FR 7917 - Agency Information Collection Activity: Status of Dependents Questionnaire (VA Form 21-0538).PDF
82 FR 7918 - Agency Information Collection Activity: (Annual Certification of Veteran Status and Veteran relatives (VA Form 20-0344))PDF
82 FR 7790 - Notice of Availability of an Evaluation of the Classical Swine Fever, Foot-and-Mouth Disease, Swine Vesicular Disease, and Rinderpest Status of CyprusPDF
82 FR 7805 - Defense Health Board; Notice of Federal Advisory Committee MeetingPDF
82 FR 7785 - Addition of the Republic of Korea to the List of Regions Affected by Contagious Equine MetritisPDF
82 FR 7789 - Notice of Request for an Extension of Approval of an Information Collection; Highly Pathogenic Avian Influenza, All Subtypes, and Newcastle Disease; Additional RestrictionsPDF
82 FR 7787 - Addition of Lebanon to the List of Regions Affected by Highly Pathogenic Avian InfluenzaPDF
82 FR 7791 - Notice of Request for Extension of Approval of an Information Collection; Importation of Horses, Ruminants, Swine, and Dogs; Inspection and Treatment for ScrewwormPDF
82 FR 7786 - Concurrence With OIE Risk Designations for Bovine Spongiform EncephalopathyPDF
82 FR 7785 - Notice of Request for Revision to and Extension of Approval of an Information Collection; Importation of Unshu OrangesPDF
82 FR 7784 - Notice of Request for Extension of Approval of an Information Collection; Plum Pox CompensationPDF
82 FR 7787 - Notice of Request for Reinstatement of an Information Collection; National Veterinary Accreditation Program Application FormPDF
82 FR 7788 - Notice of Request for Reinstatement of an Information Collection; National Veterinary Services Laboratories; Bovine Spongiform Encephalopathy Surveillance ProgramPDF
82 FR 7766 - Transition From TTY to Real-Time Text TechnologyPDF
82 FR 7860 - Judicial Redress Act of 2015; Attorney General DesignationsPDF
82 FR 7831 - Notice of Intent To Prepare an Environmental Impact Statement for the Proposed Department of Labor Headquarters Consolidation and Exchange of the Frances Perkins BuildingPDF
82 FR 7912 - The Illinois State Toll Highway Authority-Petition for Declaratory OrderPDF
82 FR 7833 - Agency Information Collection Activities: Submission for OMB Review; Comment RequestPDF
82 FR 7699 - Transition From TTY to Real-Time Text TechnologyPDF
82 FR 7805 - Submission for OMB Review; Comment RequestPDF
82 FR 7847 - Proposed Flood Hazard DeterminationsPDF
82 FR 7846 - Final Flood Hazard DeterminationsPDF
82 FR 7848 - Proposed Flood Hazard DeterminationsPDF
82 FR 7850 - Final Flood Hazard DeterminationsPDF
82 FR 7915 - Generalized System of Preferences (GSP): Notice Regarding the 2016/2017 GSP Annual Product Review and Certain Country Practice CasesPDF
82 FR 7806 - Department of Defense Military Family Readiness Council (MFRC); Notice of Federal Advisory Committee MeetingPDF
82 FR 7806 - Department of Defense Military Family Readiness Council (MFRC); Notice of Federal Advisory Committee Meeting; CancellationPDF
82 FR 7876 - Distribution of 2010-13 Cable Royalty FundsPDF
82 FR 7879 - Distribution of 2010-13 Satellite Royalty FundsPDF
82 FR 7801 - Taking and Importing of Marine MammalsPDF
82 FR 7880 - Notice of Permits Issued Under the Antarctic Conservation Act of 1978PDF
82 FR 7816 - Cimarron Bend Wind Project II, LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 AuthorizationPDF
82 FR 7816 - Luz Solar Partners Ltd., IV; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 AuthorizationPDF
82 FR 7816 - Columbia Gas Transmission, LLC; Notice of Request Under Blanket AuthorizationPDF
82 FR 7817 - Combined Notice of Filings #2PDF
82 FR 7817 - Combined Notice of Filings #1PDF
82 FR 7859 - Notice of Lodging of Proposed Consent Decree Under the Resource Conservation and Recovery ActPDF
82 FR 7792 - Alabama Resource Advisory CommitteePDF
82 FR 7852 - Availability of Record of Decision for Eagle Take Permits for the Chokecherry and Sierra Madre Phase I Wind Energy ProjectPDF
82 FR 7793 - Willamette National Forest, Sweet Home Ranger District; Oregon; Trout Creek ProjectPDF
82 FR 7855 - Meeting of the California Desert District Advisory CouncilPDF
82 FR 7796 - Submission for OMB Review; Comment Request Information Collection for Self-Certification to the EU-U.S. Privacy Shield FrameworkPDF
82 FR 7801 - Notice of Availability of and Request for Public Comment on Space Weather Phase 1 BenchmarksPDF
82 FR 7799 - Notice of Availability of and Request for Public Comment on White Paper on Improving the Space Weather Forecasting Research to Operations (R2O)-Operations to Research (O2R) CapabilityPDF
82 FR 7814 - Methane Hydrate Advisory CommitteePDF
82 FR 7812 - Agency Information Collection Activities; Comment Request; Loan Discharge Application: ForgeryPDF
82 FR 7813 - Agency Information Collection Activities; Comment Request; Study of Weighted Student Funding SystemsPDF
82 FR 7825 - Fifth Generation Wireless Network and Device SecurityPDF
82 FR 7845 - Towing Safety Advisory Committee; VacanciesPDF
82 FR 7755 - Marine Casualty Reporting Property Damage ThresholdsPDF
82 FR 7801 - Submission for OMB Review; Comment RequestPDF
82 FR 7876 - Notice of Intent To AuditPDF
82 FR 7875 - Notice of Intent To AuditPDF
82 FR 7878 - Notice of Intent To AuditPDF
82 FR 7880 - Beaver Valley Power Station, Unit 2; Consideration of Approval of Transfer of License and Conforming AmendmentPDF
82 FR 7856 - Certain Radiotherapy Systems and Treatment Planning Software, and Components Thereof; Commission Determination To Review a Final Initial Determination in Part and, on Review, To Affirm in Part, Vacate in Part and Remand Some Issues to the Administrative Law Judge, and Maintain Certain Issues Under ReviewPDF
82 FR 7783 - Public Quarterly Meeting of the Board of DirectorsPDF
82 FR 7884 - Product Change-Priority Mail Negotiated Service AgreementPDF
82 FR 8056 - Operations Notice for the Expansion of the Moving To Work Demonstration Program Solicitation of CommentPDF
82 FR 7884 - Product Change-Parcel Select Negotiated Service AgreementPDF
82 FR 7800 - Pacific Fishery Management Council; Public MeetingPDF
82 FR 7859 - Importer of Controlled Substances Application: Mylan Technologies, Inc.PDF
82 FR 7884 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Designation of a Longer Period for Commission Action on Proceedings To Determine Whether To Approve or Disapprove a Proposed Rule Change, as Modified by Amendment No. 2 Thereto, To Amend NYSE Arca Equities Rule 8.700 and To List and Trade Shares of the Managed Emerging Markets Trust Under Proposed Amended NYSE Arca Equities Rule 8.700PDF
82 FR 7898 - Self-Regulatory Organizations; Municipal Securities Rulemaking Board; Notice of Filing of Amendment No. 1 and Order Granting Accelerated Approval of a Proposed Rule Change, as Modified by Amendment No. 1, To Extend the MSRB's Customer Complaint and Related Recordkeeping Rules to Municipal Advisors and To Modernize Those RulesPDF
82 FR 7906 - Self-Regulatory Organizations; ISE Gemini, LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend the Schedule of FeesPDF
82 FR 7904 - Self-Regulatory Organizations; C2 Options Exchange, Incorporated; Notice of Filing and Immediate Effectiveness of a Proposed Rule To Amend the Fees SchedulePDF
82 FR 7885 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing of Proposed Rule Change Relating to the Listing and Trading of Shares of the USCF Canadian Crude Oil Index Fund Under NYSE Arca Equities Rule 8.200PDF
82 FR 7891 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing of Proposed Rule Change Relating to the Listing and Trading of Shares of the EtherIndex Ether Trust Under NYSE Arca Equities Rule 8.201PDF
82 FR 7907 - Self-Regulatory Organizations; The NASDAQ Stock Market LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend Rule 7018PDF
82 FR 7870 - Study on the Moral Rights of Attribution and IntegrityPDF
82 FR 7804 - Proposed Information Collection; Comment RequestPDF
82 FR 7804 - Information Collection; Submission for OMB Review, Comment RequestPDF
82 FR 7799 - Submission for OMB Review; Comment RequestPDF
82 FR 7708 - Eagle Permits; Revisions to Regulations for Eagle Incidental Take and Take of Eagle NestsPDF
82 FR 7916 - Sixty Ninth Plenary for RTCA SC-135 Environmental TestingPDF
82 FR 7819 - Information Collection Request to OMB for Review and Approval; Comment Request; 2017 Hazardous Waste Report, Notification of Regulated Waste Activity, and Part A Hazardous Waste Permit Application and Modification (Renewal)PDF
82 FR 7824 - Information Collection Request Submitted to OMB for Review and Approval; Comment Request; NESHAP for Lime Manufacturing (Renewal)PDF
82 FR 7818 - Information Collection Request Submitted to OMB for Review and Approval; Comment Request; NSPS for Rubber Tire Manufacturing (Renewal)PDF
82 FR 7836 - Proposed Information Collection Activity; Comment RequestPDF
82 FR 7823 - Information Collection Request Submitted to OMB for Review and Approval; Comment Request; NSPS for Phosphate Rock Plants (Renewal)PDF
82 FR 7822 - Information Collection Request Submitted to OMB for Review and Approval; Comment Request; NSPS for Sewage Sludge Treatment Plants (Renewal)PDF
82 FR 7821 - Information Collection Request Submitted to OMB for Review and Approval; Comment Request; NESHAP for Beryllium (Renewal)PDF
82 FR 7798 - Certain Corrosion-Resistant Steel Products From the Republic of Korea: Rescission of Countervailing Duty Expedited Review; 2014PDF
82 FR 7735 - Proposed Amendment of Class D and Class E Airspace; Hailey, IDPDF
82 FR 7821 - Minor Revisions to AP-42 Section 13.5: Industrial FlaresPDF
82 FR 7861 - Notice of Lodging of Proposed Consent Decree Under the Clean Water ActPDF
82 FR 7844 - National Institute on Drug Abuse; Notice of MeetingPDF
82 FR 7841 - National Institute on Drug Abuse; Notice of Closed MeetingPDF
82 FR 7841 - National Institute of Biomedical Imaging and Bioengineering; Notice of Closed MeetingPDF
82 FR 7844 - National Institute of Allergy and Infectious Diseases; Notice of Closed MeetingPDF
82 FR 7842 - Center for Scientific Review; Notice of Closed MeetingsPDF
82 FR 7837 - Determination That ACTHAR GEL SYNTHETIC (Seractide Acetate) Injection, 80 Units/Milliliter and 40 Units/Milliliter, Was Withdrawn From Sale for Reasons of Safety or EffectivenessPDF
82 FR 7738 - Technical Amendments to Rules on Registration and Review of Exchange Disciplinary, Access Denial or Other Adverse ActionsPDF
82 FR 7734 - Airworthiness Directives; General Electric Company Turbofan EnginesPDF
82 FR 7839 - Agency Information Collection Activities; Submission for Office of Management and Budget Review; Comment Request; Premarket Approval of Medical DevicesPDF
82 FR 7771 - Procedures for Transportation Workplace Drug and Alcohol Testing Programs: Addition of Certain Schedule II Drugs to the Department of Transportation's Drug-Testing Panel and Certain Minor AmendmentsPDF
82 FR 7751 - Compliance With and Recommendations for Implementation of the Standards for the Growing, Harvesting, Packing, and Holding of Produce for Human Consumption for Sprout Operations; Draft Guidance for Industry; AvailabilityPDF
82 FR 7697 - Suspension of Community EligibilityPDF
82 FR 7649 - Civil Penalties Inflation Adjustments; Annual AdjustmentsPDF
82 FR 7737 - Proposed Establishment of Class E Airspace, Manti, UTPDF
82 FR 8004 - Tobacco Product Standard for N-Nitrosonornicotine Level in Finished Smokeless Tobacco ProductsPDF
82 FR 7854 - Deepwater Horizon Oil Spill; Louisiana Trustee Implementation Group Final Restoration Plan #1: Restoration of Wetlands, Coastal, and Nearshore Habitats; Habitat Projects on Federally Managed Lands; and BirdsPDF
82 FR 7920 - Mandatory Guidelines for Federal Workplace Drug Testing ProgramsPDF
82 FR 7911 - Meeting of the Advisory Committee on Veterans Business AffairsPDF
82 FR 7753 - Disclosures of Return Information Reflected on Returns to Officers and Employees of the Department of Commerce for Certain Statistical Purposes and Related Activities; CorrectionPDF
82 FR 7631 - Revisions to Freedom of Information Act RegulationsPDF
82 FR 7680 - Examinations of Working Places in Metal and Nonmetal MinesPDF
82 FR 7695 - Extension of Deadline for Action on the November 28, 2016 Section 126 Petition From DelawarePDF
82 FR 7636 - Regulation D: Reserve Requirements of Depository InstitutionsPDF
82 FR 7635 - Regulation A: Extensions of Credit by Federal Reserve BanksPDF
82 FR 7711 - Endangered and Threatened Species; Removal of the Puget Sound/Georgia Basin Distinct Population Segment of Canary Rockfish From the Federal List of Threatened and Endangered Species and Removal of Designated Critical Habitat, and Update and Amendment to the Listing Descriptions for the Yelloweye Rockfish DPS and Bocaccio DPSPDF
82 FR 7648 - Listing of Color Additives Exempt From Certification; Titanium Dioxide and Listing of Color Additives Subject to Certification; [Phthalocyaninato (2-)] Copper; Confirmation of Effective DatePDF
82 FR 7643 - Annual Adjustment of Civil Monetary Penalties for Inflation-2017PDF
82 FR 7637 - Civil Monetary Penalty Inflation AdjustmentPDF
82 FR 7666 - Revision of FOIA RegulationsPDF
82 FR 7641 - Updated Statements of Legal Authority for the Export Administration RegulationsPDF
82 FR 7647 - Regulatory Program Fees; CorrectionPDF
82 FR 7753 - Implementation of Statutory Amendments Requiring the Modification of the Definition of Hard CiderPDF
82 FR 7653 - Implementation of Statutory Amendments Requiring the Modification of the Definition of Hard CiderPDF
82 FR 7648 - Unsuccessful Work Attempts and Expedited Reinstatement Eligibility; CorrectionPDF
82 FR 7645 - Adoption of Updated EDGAR Filer ManualPDF
82 FR 7972 - Pipeline Safety: Operator Qualification, Cost Recovery, Accident and Incident Notification, and Other Pipeline Safety ChangesPDF
82 FR 8082 - Economic Growth and Regulatory Paperwork Reduction Act of 1996 AmendmentsPDF

Issue

82 13 Monday, January 23, 2017 Contents Administrative Administrative Conference of the United States RULES Revisions to Freedom of Information Act Regulations, 7631-7635 2017-00891 African African Development Foundation NOTICES Meetings Public Quarterly; Board of Directors, 7783 2017-01312 Agricultural Marketing Agricultural Marketing Service PROPOSED RULES Export Apple Act and Export Grapes and Plums Reporting Requirements, 7733 2017-01417 NOTICES Grade Standards: United States Standards for Grades of Catfish and Catfish Products, 7783-7784 2017-01413 Agriculture Agriculture Department See

Agricultural Marketing Service

See

Animal and Plant Health Inspection Service

See

Forest Service

See

Inspector General Office, Agriculture Department

Alcohol Tobacco Tax Alcohol and Tobacco Tax and Trade Bureau RULES Implementation of Statutory Amendments Requiring the Modification of the Definition of Hard Cider, 7653-7666 2017-00333 PROPOSED RULES Implementation of Statutory Amendments Requiring the Modification of the Definition of Hard Cider, 7753-7755 2017-00334 Animal Animal and Plant Health Inspection Service NOTICES Addition of Lebanon to the List of Regions Affected by Highly Pathogenic Avian Influenza, 7787 2017-01392 Addition of the Republic of Korea to the List of Regions Affected by Contagious Equine Metritis, 7785-7786 2017-01394 Agency Information Collection Activities; Proposals, Submissions, and Approvals: Highly Pathogenic Avian Influenza, All Subtypes, and Newcastle Disease; Additional Restrictions, 7789-7790 2017-01393 Importation of Horses, Ruminants, Swine, and Dogs; Inspection and Treatment for Screwworm, 7791-7792 2017-01391 Importation of Unshu Oranges, 7785 2017-01389 National Veterinary Accreditation Program Application Form, 7787-7788 2017-01387 National Veterinary Services Laboratories; Bovine Spongiform Encephalopathy Surveillance Program, 7788-7789 2017-01386 Plum Pox Compensation, 7784-7785 2017-01388 Concurrence with World Organization for Animal Health Risk Designations for Bovine Spongiform Encephalopathy, 7786-7787 2017-01390 Evaluation of the Classical Swine Fever, Foot-and-Mouth Disease, Swine Vesicular Disease, and Rinderpest Status of Cyprus, 7790-7791 2017-01396 Army Army Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 7805 2017-01376 Centers Disease Centers for Disease Control and Prevention NOTICES Charter Renewals: Board of Scientific Counselors, National Center for Health Statistics, 7833 2017-01402 Meetings: Safety and Occupational Health Study Section, 7832-7833 2017-01403 Centers Medicare Centers for Medicare & Medicaid Services NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 7833-7834 2017-01378 Children Children and Families Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 7836-7837 2017-01276 Proposed Adoption of Administration for Native Americans Program Policies and Procedures, 7834-7836 2017-01418 Coast Guard Coast Guard PROPOSED RULES Marine Casualty Reporting Property Damage Thresholds, 7755-7766 2017-01323 NOTICES Vacancies: Towing Safety Advisory Committee, 7845-7846 2017-01324 Commerce Commerce Department See

Industry and Security Bureau

See

International Trade Administration

See

National Oceanic and Atmospheric Administration

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Self-Certification to the EU-U.S. Privacy Shield Framework, 7796-7797 2017-01334
Committee for Purchase Committee for Purchase From People Who Are Blind or Severely Disabled NOTICES Procurement List; Additions and Deletions, 7802-7803 2017-01399 2017-01400 Commodity Futures Commodity Futures Trading Commission RULES Adjustment of Civil Monetary Penalties for Inflation, 7643-7645 2017-00488 PROPOSED RULES Technical Amendments to Rules on Registration and Review of Exchange Disciplinary, Access Denial or Other Adverse Actions, 7738-7751 2017-01232 Comptroller Comptroller of the Currency RULES Economic Growth and Regulatory Paperwork Reduction Act Amendments, 8082-8111 2016-30502 Consumer Product Consumer Product Safety Commission NOTICES Meetings: Sunshine Act, 7803 2017-01497 Copyright Office Copyright Office, Library of Congress NOTICES Study on the Moral Rights of Attribution and Integrity, 7870-7875 2017-01294 Copyright Royalty Board Copyright Royalty Board NOTICES Distribution of 2010-13 Cable Royalty Funds, 7876-7878 2017-01358 Distribution of 2010-13 Satellite Royalty Funds, 7879-7880 2017-01357 Intent to Audit, 7875-7876, 7878-7879 2017-01318 2017-01319 2017-01320 2017-01321 Corporation Corporation for National and Community Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 7804-7805 2017-01291 2017-01292 Defense Department Defense Department See

Army Department

PROPOSED RULES Federal Acquisition Regulation: Effective Communication between Government and Industry, 7770-7771 2017-01405 NOTICES Meetings: Defense Health Board, 7805-7806 2017-01395 Department of Defense Military Family Readiness Council, 7806-7807 2017-01361 Department of Defense Military Family Readiness Council; Cancellation, 7806 2017-01360
Delaware Delaware River Basin Commission RULES Regulatory Program Fees; Correction, 7647-7648 2017-00413 Drug Drug Enforcement Administration NOTICES Importers of Controlled Substances; Applications: Mylan Technologies, Inc., 7859 2017-01305 Education Department Education Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Loan Discharge Application: Forgery, 7812-7813 2017-01329 Study of Weighted Student Funding Systems, 7813 2017-01328 Privacy Act; Systems of Records, 7807-7812 2017-01434 Energy Department Energy Department See

Energy Efficiency and Renewable Energy Office

See

Federal Energy Regulatory Commission

NOTICES Meetings: Methane Hydrate Advisory Committee, 7814 2017-01330
Energy Efficiency Energy Efficiency and Renewable Energy Office NOTICES Meetings: External Peer Review, 7814-7816 2017-01437 2017-01438 Environmental Protection Environmental Protection Agency RULES Air Quality State Implementation Plans; Approvals and Promulgations: Delaware; Extension of Deadline for Action on the November 28, 2016 Section 126 Petition, 7695-7697 2017-00760 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: 2017 Hazardous Waste Report, Notification of Regulated Waste Activity, and Part A Hazardous Waste Permit Application and Modification, 7819 2017-01281 National Emissions Standards for Hazardous Air Polluntants for Beryllium, 7821 2017-01273 National Emissions Standards for Hazardous Air Pollutants for Lime Manufacturing, 7824 2017-01280 National Estuary Program, 7824-7825 2017-01422 New Source Performance Standards for Phosphate Rock Plants, 7823-7824 2017-01275 New Source Performance Standards for Rubber Tire Manufacturing, 7818-7819 2017-01279 New Source Performance Standards for Sewage Sludge Treatment Plants, 7822-7823 2017-01274 Environmental Impact Statements; Availability, etc., 7822 2017-01426 Industrial Flares; Minor Revisions, 7821-7822 2017-01263 Proposed Consent Decree, Clean Air Act Citizen Suit, 7820-7821 2017-01419 Federal Aviation Federal Aviation Administration PROPOSED RULES Airworthiness Directives: General Electric Co. Turbofan Engines, 7734-7735 2017-01227 Class D and Class E Airspace; Amendments Hailey, ID, 7735-7737 2017-01268 Class E Airspace; Establishments: Manti, UT, 7737-7738 2017-01039 NOTICES Meetings: Sixty Ninth Plenary for Radio Technical Commission for Aeronautics SC-135 Environmental Testing, 7916-7917 2017-01282 Twenty First RTCA SC-223 Internet Protocol Suite (IPS) and AeroMACS Plenary, 7917 2017-01406 Federal Communications Federal Communications Commission RULES Transition from TTY to Real-Time Text Technology, 7699-7708 2017-01377 PROPOSED RULES Transition from Text Telephony to Real-Time Text Technology, 7766-7770 2017-01382 NOTICES Fifth Generation Wireless Network and Device Security, 7825-7830 2017-01325 Federal Deposit Federal Deposit Insurance Corporation NOTICES Meetings: Sunshine Act, 7830-7831 2017-01523 Federal Election Federal Election Commission NOTICES Meetings: Sunshine Act, 7831 2017-01576 Federal Emergency Federal Emergency Management Agency RULES Suspensions of Community Eligibility, 7697-7699 2017-01102 NOTICES Flood Hazard Determinations, 7846-7847, 7850-7852 2017-01372 2017-01374 Flood Hazard Determinations; Proposals, 7847-7850 2017-01373 2017-01375 Federal Energy Federal Energy Regulatory Commission NOTICES Combined Filings, 7817-7818 2017-01351 Combined Notice Of Filings #1, 7817 2017-01350 Initial Market-Based Rate Filings Including Requests for Blanket Section 204 Authorizations: Cimarron Bend Wind Project II, LLC, 7816 2017-01354 Luz Solar Partners Ltd., IV, 7816 2017-01353 Requests for Blanket Authorizations: Columbia Gas Transmission, LLC, 7816-7817 2017-01352 Federal Reserve Federal Reserve System RULES Extensions of Credit by Federal Reserve Banks, 7635-7636 2017-00612 Reserve Requirements of Depository Institutions, 7636-7637 2017-00613 Federal Retirement Federal Retirement Thrift Investment Board NOTICES Meetings: Sunshine Act, 7831 2017-01505 Fish Fish and Wildlife Service RULES Eagle Permits: Revisions to Regulations for Eagle Incidental Take and Take of Eagle Nests, 7708-7711 2017-01284 NOTICES Records of Decision: Eagle Take Permits for the Chokecherry and Sierra Madre Phase I Wind Energy Project, 7852-7854 2017-01346 Food and Drug Food and Drug Administration RULES Listing of Color Additives Exempt from Certification: Titanium Dioxide and Listing of Color Additives Subject to Certification; [Phthalocyaninato (2-)] Copper; Confirmation of Effective Date, 7648-7649 2017-00534 PROPOSED RULES Guidance: Compliance With and Recommendations for Implementation of the Standards for the Growing, Harvesting, Packing, and Holding of Produce for Human Consumption for Sprout Operations, 7751-7753 2017-01128 Tobacco Product Standard for N-nitrosonornicotine Level in Finished Smokeless Tobacco Products, 8004-8053 2017-01030 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Premarket Approval of Medical Devices, 7839-7841 2017-01188 Drug Products Withdrawn or Removed from the Market for Reasons of Safety or Effectiveness, 7837-7839 2017-01249 Forest Forest Service NOTICES Environmental Impact Statements; Availability, etc.: Trout Creek Project, Willamette National Forest, Sweet Home Ranger District; OR, 7793-7794 2017-01343 Meetings: Alabama Resource Advisory Committee, 7792-7793 2017-01347 General Services General Services Administration PROPOSED RULES Federal Acquisition Regulation: Effective Communication between Government and Industry, 7770-7771 2017-01405 NOTICES Environmental Impact Statements; Availability, etc.: Proposed Department of Labor Headquarters Consolidation and Exchange of the Frances Perkins Building, 7831-7832 2017-01380 Health and Human Health and Human Services Department See

Centers for Disease Control and Prevention

See

Centers for Medicare & Medicaid Services

See

Children and Families Administration

See

Food and Drug Administration

See

National Institutes of Health

See

Substance Abuse and Mental Health Services Administration

Homeland Homeland Security Department See

Coast Guard

See

Federal Emergency Management Agency

Housing Housing and Urban Development Department NOTICES Expansion of the Moving to Work Demonstration Program, 8056-8080 2017-01310 Indian Affairs Indian Affairs Bureau RULES Civil Penalties Inflation Adjustments; Annual Adjustments, 7649-7653 2017-01076 Industry Industry and Security Bureau RULES Updated Statements of Legal Authority for the Export Administration Regulations, 7641-7642 2017-00443 NOTICES Meetings: Information Systems Technical Advisory Committee, 7797 2017-01423 Sensors and Instrumentation Technical Advisory Committee, 7797-7798 2017-01425 Inspector General Agriculture Inspector General Office, Agriculture Department NOTICES Privacy Act; Systems of Records, 7795-7796 2017-01412 Interior Interior Department See

Fish and Wildlife Service

See

Indian Affairs Bureau

See

Land Management Bureau

NOTICES Environmental Impact Statements; Availability, etc.: Deepwater Horizon Oil Spill; Louisiana Trustee Implementation Group Final Restoration Plan, 7854-7855 2017-00999
Internal Revenue Internal Revenue Service PROPOSED RULES Disclosures of Return Information Reflected on Returns to Officers and Employees of the Department of Commerce for Certain Statistical Purposes and Related Activities; Correction, 7753 2017-00946 International Trade Adm International Trade Administration NOTICES Antidumping or Countervailing Duty Investigations, Orders, or Reviews: Certain Corrosion-Resistant Steel Products from the Republic of Korea, 7798 2017-01272 International Trade Com International Trade Commission NOTICES Investigations; Determinations, Modifications, and Rulings, etc.: Certain Radiotherapy Systems and Treatment Planning Software, and Components, 7856-7857 2017-01315 Generalized System of Preferences—Possible Modifications, 2016 Review, 7857-7859 2017-01401 Justice Department Justice Department See

Drug Enforcement Administration

NOTICES Consent Decrees: Proposed Consent Decrees under the Clean Water Act, 7861-7862 2017-01255 Proposed Consent Decrees under the Resource Conservation and Recovery Act, 7859-7860 2017-01348 Judicial Redress Act of 2015; Attorney General Designations, 7860-7861 2017-01381 Proposed Consent Decree under the Safe Drinking Water Act, 7862 2017-01427 Proposed Consent Decrees under CERCLA, 7862 2017-01416
Labor Department Labor Department See

Mine Safety and Health Administration

See

Occupational Safety and Health Administration

RULES Revision of FOIA Regulations, 7666-7680 2017-00453 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Energy Employees Occupational Illness Compensation Program Act Forms, 7863-7864 2017-01404
Land Land Management Bureau NOTICES Meetings: California Desert District Advisory Council, 7855 2017-01340 Library Library of Congress See

Copyright Office, Library of Congress

See

Copyright Royalty Board

Mine Mine Safety and Health Administration RULES Examinations of Working Places in Metal and Nonmetal Mines, 7680-7695 2017-00832 NASA National Aeronautics and Space Administration PROPOSED RULES Federal Acquisition Regulation: Effective Communication between Government and Industry, 7770-7771 2017-01405 National Credit National Credit Union Administration RULES Civil Monetary Penalty Inflation Adjustment, 7637-7641 2017-00473 National Institute National Institutes of Health NOTICES Meetings: Center for Scientific Review, 7842-7844 2017-01250 National Institute of Allergy and Infectious Diseases, 7844-7845 2017-01251 National Institute of Biomedical Imaging and Bioengineering, 7841-7842 2017-01252 National Institute on Drug Abuse, 7841, 7844 2017-01253 2017-01254 National Oceanic National Oceanic and Atmospheric Administration RULES Endangered and Threatened Species: Removal of the Puget Sound/Georgia Basin Distinct Population Segment of Canary Rockfish from the Federal List of Threatened and Endangered Species and Removal of Designated Critical Habitat, and Update and Amendment to the Listing Descriptions for the Yelloweye Rockfish DPS and Bocaccio DPS, 7711-7731 2017-00559 Pacific Island Fisheries: 2017 Northwestern Hawaiian Islands Lobster Harvest Guideline, 7731-7732 2017-01410 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 7799-7800 2017-01286 Agency Information Collection Activities; Proposals, Submissions, and Approvals: West Coast Fisheries Participation Survey, 7801 2017-01322 Improving the Space Weather Forecasting Research to Operations—Operations to Research Capability, 7799 2017-01331 Meetings: Pacific Fishery Management Council, 7800 2017-01307 Science Advisory Board, 7800-7801 2017-01439 Space Weather Phase 1 Benchmarks, 7801-7802 2017-01333 Taking and Importing of Marine Mammals, 7801 2017-01356 National Science National Science Foundation NOTICES Antarctic Conservation Act Permits, 7880 2017-01355 Meetings: Sunshine Act, 7880 2017-01553 Nuclear Regulatory Nuclear Regulatory Commission NOTICES Applications for Direct Transfer of Licenses: Beaver Valley Power Station, Unit 2, 7880-7883 2017-01317 Occupational Safety Health Adm Occupational Safety and Health Administration NOTICES Charter Renewals: Maritime Advisory Committee for Occupational Safety and Health, 7869-7870 2017-01407 Nationally Recognized Testing Laboratories: Curtis-Strauss LLC, 7868-7869 2017-01411 Intertek Testing Services NA, Inc., 7864-7866 2017-01408 TUV Rheinland of North America, Inc.; Grant of Expansion of Recognition and Modification, 7866-7867 2017-01409 State Plans: Michigan; Marine Construction, 7867-7868 2017-01414 Pipeline Pipeline and Hazardous Materials Safety Administration RULES Pipeline Safety: Operator Qualification, Cost Recovery, Accident and Incident Notification, and Other Pipeline Safety Changes, 7972-8002 2016-31461 Postal Regulatory Postal Regulatory Commission NOTICES New Postal Products, 7883-7884 2017-01421 Postal Service Postal Service NOTICES Product Changes: Parcel Select Negotiated Service Agreement, 7884 2017-01308 Priority Mail Negotiated Service Agreement, 7884 2017-01311 Presidential Documents Presidential Documents EXECUTIVE ORDERS Government Agencies and Employees: Executive Branch-Wide Governance Structure and Security Clearances Processes, Modernization Efforts; Amendments to Civil Service Rules, Executive Order 13488 and Executive Order 13467 (EO 13764), 8113-8129 2017-01623 Securities Securities and Exchange Commission RULES Adoption of Updated Electronic Data Gathering, Analysis, and Retrieval System Filer Manual, 7645-7647 2016-32032 NOTICES Self-Regulatory Organizations; Proposed Rule Changes: C2 Options Exchange, Inc., 7904-7906 2017-01298 ISE Gemini, LLC, 7906-7907 2017-01299 Municipal Securities Rulemaking Board, 7898-7904 2017-01300 NASDAQ Stock Market LLC, 7907-7911 2017-01295 NYSE Arca, Inc., 7884-7898 2017-01296 2017-01297 2017-01301 Small Business Small Business Administration NOTICES Meetings: Advisory Committee on Veterans Business Affairs, 7911-7912 2017-00951 Social Social Security Administration RULES Unsuccessful Work Attempts and Expedited Reinstatement Eligibility; Correction, 7648 2017-00076 Substance Substance Abuse and Mental Health Services Administration NOTICES Mandatory Guidelines for Federal Workplace Drug Testing Programs, 7920-7970 2017-00979 Surface Transportation Surface Transportation Board NOTICES Petitions for Declaratory Orders: Illinois State Toll Highway Authority, 7912-7913 2017-01379 Tennessee Tennessee Valley Authority NOTICES Environmental Impact Statements; Availability, etc.: Transmission System Vegetation Management Program, 7913-7915 2017-01448 Trade Representative Trade Representative, Office of United States NOTICES Generalized System of Preferences: 2016/2017 Annual Product Review and Certain Country Practice Cases, 7915-7916 2017-01362 Transportation Department Transportation Department See

Federal Aviation Administration

See

Pipeline and Hazardous Materials Safety Administration

PROPOSED RULES Procedures for Transportation Workplace Drug and Alcohol Testing Programs: Addition of Certain Schedule II Drugs to the Drug-Testing Panel and Certain Minor Amendments, 7771-7782 2017-01131
Treasury Treasury Department See

Alcohol and Tobacco Tax and Trade Bureau

See

Comptroller of the Currency

See

Internal Revenue Service

Veteran Affairs Veterans Affairs Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Annual Certification of Veteran Status and Veteran Relatives, 7918 2017-01397 Status of Dependents Questionnaire, 7917-7918 2017-01398 Separate Parts In This Issue Part II Health and Human Services Department, Substance Abuse and Mental Health Services Administration, 7920-7970 2017-00979 Part III Transportation Department, Pipeline and Hazardous Materials Safety Administration, 7972-8002 2016-31461 Part IV Health and Human Services Department, Food and Drug Administration, 8004-8053 2017-01030 Part V Housing and Urban Development Department, 8056-8080 2017-01310 Part VI Treasury Department, Comptroller of the Currency, 8082-8111 2016-30502 Part VII Presidential Documents, 8113-8129 2017-01623 Reader Aids

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82 13 Monday, January 23, 2017 Rules and Regulations ADMINISTRATIVE CONFERENCE OF THE UNITED STATES 1 CFR Part 304 Revisions to Freedom of Information Act Regulations AGENCY:

Administrative Conference of the United States.

ACTION:

Direct final rule.

SUMMARY:

The Administrative Conference of the United States (“ACUS” or “the Conference”) is revising its regulations for disclosure of records under the Freedom of Information Act (FOIA) to comply with the FOIA Improvement Act of 2016.

DATES:

This rule is effective on March 14, 2017, without further action, unless significant adverse comment is received by February 22, 2017. If significant adverse comment is received, the Conference will publish a timely withdrawal of the rule together with a modified final rule in the Federal Register.

ADDRESSES:

Submit comments either by email addressed to [email protected] or by mail addressed to FOIA Comments, Administrative Conference of the United States, Suite 706 South, 1120 20th Street NW., Washington, DC 20036.

FOR FURTHER INFORMATION CONTACT:

Shawne C. McGibbon, General Counsel, at 202-480-2088 or [email protected]

SUPPLEMENTARY INFORMATION:

The FOIA Improvement Act of 2016,1 was signed into law by the President on June 30, 2016. The Act consists of several amendments to the FOIA affecting FOIA administration. The Act requires each agency to review and update its FOIA regulations in accordance with the Act's provisions. The Conference is making changes to its regulations accordingly, including: Correcting citations; highlighting the electronic availability of records; implementing the “rule of three” for frequently requested records; notifying requesters of their right to seek assistance from the agency's FOIA Public Liaison and the National Archives and Records Administration's Office of Government Information Services (OGIS); changing the time limit for appeals; implementing the foreseeable harm standard; and describing limitations on assessing search fees if the response time is delayed. The revisions also include some wording changes to the existing regulations for greater clarity.

1 Public Law. 114-185, 130 Stat. 538.

Regulatory Procedures a. Administrative Procedure Act (APA)

Pursuant to 5 U.S.C. 553(b), we find that good cause exists for waiving publication of a general notice of proposed rulemaking and provision of a public comment period prior to issuance of the final rule. The amendments to the Conference's FOIA regulations contained herein are technical in nature. They concern matters of agency organization, procedure, and practice. They are being adopted in accordance with the mandated provisions of the FOIA Improvement Act of 2016, do not reflect agency discretion, and provide additional protection to the public. We note further that when the Conference adopted the FOIA regulations now being amended, we received a single set of comments from one person, which suggested various technical amendments, most of which were accepted and incorporated into the final rule. We conclude that a pre-issuance public comment period is unnecessary and not in the public interest. By issuing the current set of amendments as a direct final rule, we are nevertheless offering the public an opportunity to submit comments; but in the absence of any significant adverse comment received within 30 days of publication, the direct final rule will automatically go into effect 50 days after its publication without further notice. If we receive timely significant adverse comment, we will consider modifying this rule, with appropriate public notice.

b. Paperwork Reduction Act

The Paperwork Reduction Act, 44 U.S.C. 3501 et seq., does not apply because these regulations do not contain any new information collection requirements.

c. Regulatory Flexibility Act

Because notice and comment procedures are not required for the current amendments to the Conference's FOIA regulations, as explained above, the regulatory flexibility analyses otherwise required by the Regulatory Flexibility Act (RFA), 5 U.S.C. 601 et seq., do not apply to this rulemaking action. Nevertheless, the head of this agency certifies that this rulemaking action will not have a significant economic impact on a substantial number of small entities because it primarily affects individuals requesting records under the FOIA.

d. Unfunded Mandates Reform Act

For purposes of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. chapter 25, subchapter II), these regulations will not significantly or uniquely affect small governments and will not result in increased expenditures by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (as adjusted for inflation).

e. Executive Order 12866

In issuing these regulations, ACUS has adhered to the regulatory philosophy and the applicable principles of regulation as set forth in Section 1 of Executive Order 12866, Regulatory Planning and Review, 58 FR 51735. These regulations have not been reviewed by the Office of Management and Budget under the Executive Order since they are not a significant regulatory action within the meaning of the Executive Order.

List of Subjects in 1 CFR Part 304

Administrative practice and procedure, Freedom of information.

For the reasons stated in the preamble, under the authority at 5 U.S.C. 552, 591-96 and Public Law 114-185, 130 Stat. 538, the Administrative Conference of the United States amends 1 CFR part 304 as follows:

PART 304—DISCLOSURE OF RECORDS OR INFORMATION 1. The authority citation for part 304 continues to read as follows: Authority:

5 U.S.C. 552, 591-96.

Subpart A—Procedures for Disclosure of Records Under the Freedom of Information Act 2. Revise § 304.1 to read as follows:
§ 304.1 General provisions.

(a) This subpart contains the rules that the Administrative Conference of the United States (“ACUS” or “the agency”) follows in processing requests for disclosure of records under the Freedom of Information Act (“FOIA” or “the Act”), 5 U.S.C. 552, as amended, and in meeting its responsibilities under the Act. Note that electronic records are treated as records for the purposes of the FOIA. These rules should be read together with the text of the FOIA itself and the Uniform Freedom of Information Fee Schedule and Guidelines published by the Office of Management and Budget (OMB Guidelines). They also may be read in conjunction with the agency's “Freedom of Information Act Reference Guide,” which provides basic information about use of the Act in relation to the agency's records. Requests made by individuals for records about themselves under the Privacy Act of 1974, 5 U.S.C. 552a, are processed in accordance with the agency's Privacy Act regulations as well as under this subpart.

(b) The agency will withhold records or information only when it reasonably foresees that disclosure would harm an interest protected by an exemption of the FOIA or when disclosure is prohibited by law. Where full disclosure is not possible, the agency will consider whether partial disclosure is possible and, if so, will take reasonable steps to segregate and release nonexempt information. These policies do not create any right enforceable in court.

(c) The agency has designated its General Counsel as its Chief FOIA Officer, who has agency-wide responsibility for efficient and appropriate compliance with the FOIA and these implementing regulations. The Chief FOIA Officer has designated the agency's FOIA Public Liaison, who can assist individuals in locating and obtaining particular agency records. Contact information for the Chief FOIA Officer and the FOIA Public Liaison are clearly indicated on the agency's Web site at https://www.acus.gov/foia.

3. Revise § 304.2 to read as follows:
§ 304.2 Proactive disclosures.

(a) Records that the FOIA requires ACUS to make regularly available for public inspection in an electronic format, including any records that have been requested three or more times, or were previously released and are likely to become the subject of subsequent requests or appear to be of general interest, may be accessed through the agency's Web site at https://www.acus.gov. A subject matter index of such records (or comparable tool) may also be accessed through the agency's Web site and will be updated on an ongoing basis.

(b) Information routinely provided to the public as part of a regular agency activity, including information posted on the agency's Web site (for example, press releases or recommendations adopted by the Conference pursuant to the Administrative Conference Act, 5 U.S.C. 591 et seq.), may be provided to the public without following this subpart.

(c) Any requester needing assistance in locating proactively disclosed or other agency records may contact the agency's FOIA Public Liaison at (202) 480-2080.

4. Revise § 304.3 to read as follows:
§ 304.3 Requirements for making requests.

(a) How made and addressed. You may make a request for records by using the FOIA Request form on the ACUS Web site at https://www.acus.gov/foia. You may also send a written request letter to the agency either by mail addressed to FOIA Public Liaison, Administrative Conference of the United States, 1120 20th Street NW., Suite 706 South, Washington, DC 20036, or by fax delivery to (202) 386-7190. For the quickest possible handling of a mail request, you should mark both your request letter and the envelope “Freedom of Information Act Request.” (You may find the agency's “Freedom of Information Act Reference Guide”—which is available in electronic format on its Web site and in paper form—helpful in making your request.) If you are making a request for records about yourself, see § 304.21(d) for additional requirements. If you are making a request for records about another individual, then either a written authorization signed by that individual permitting disclosure of those records to you or proof that that individual is deceased (for example, a copy of a death certificate or an obituary notice) will help the processing of your request. Your request will be considered received as of the date upon which it is logged in as received by the agency's FOIA Public Liaison.

(b) Description of records sought. (1) You must describe the records that you seek in enough detail to enable agency personnel to locate them with a reasonable amount of effort. Whenever possible, your request should include specific information about each record sought, such as the date, title or name, author, recipient, and subject matter of the record. If known, you should include any file designations or similar descriptions for the records that you want. As a general rule, the more specific you are about the records or type of records that you want, the more likely that the agency will be able to locate those records in response to your request. Before submitting your request, you may contact the agency's FOIA Public Liaison at (202) 480-2080 for assistance in describing the records.

(2) If the agency determines that your request does not reasonably describe records, then it will tell you either what additional information is needed or why your request is otherwise insufficient. It also will give you an opportunity to discuss your request by telephone so that you may modify it to meet the requirements of this section. Additionally, if your request does not reasonably describe the records you seek, the agency's response to it may be delayed as an initial matter.

(c) Format of records sought. Requests may specify the preferred form or format (including electronic formats) for the records you seek. The agency will accommodate your request if the record is readily reproducible in that form or format.

(d) Agreement to pay fees. When you make a FOIA request, it will be considered to be an agreement by you to pay all applicable fees charged under § 304.9, up to $50.00, unless you specifically request a waiver of fees. The agency ordinarily will confirm this agreement in an acknowledgment letter. When making a request, you may specify a willingness to pay a greater or lesser amount. Your agreement will not prejudice your ability to seek a waiver or reduction of any applicable fee at a later time.

5. Amend § 304.5 by revising paragraphs (b) and (c)(1) to read as follows:
§ 304.5 Timing of responses to requests.

(b) Multi-track processing. The agency generally uses two processing tracks that distinguish between simple and complex requests. In determining the appropriate track for a request, the agency considers, among other factors, the number of records requested, the number of pages involved in processing the request and the need for consultations or referrals. When a request is placed on the complex track, the agency will provide the requester with an opportunity to narrow or modify the request so that it can be placed on the simple track. The agency will contact the requester by telephone, email or letter, whichever is most efficient, in each case.

(c) Unusual circumstances. (1) Where the statutory time limit of 20 days for processing a request cannot be met because of “unusual circumstances,” as defined in the FOIA, and the agency extends the time limits on that basis, it will, before expiration of the 20-day period, notify the requester in writing of the unusual circumstances and of the date by which the agency estimates processing of the request can be expected to be completed. Where the extension is likely to exceed ten working days, the agency will provide the requester with an opportunity to modify the request or arrange an alternative time period for processing the original or modified request. In such instances, the agency's FOIA Public Liaison will contact the requester, and the requester will be informed of the mediation services offered by the Office of Government Information Services (“OGIS”)—see https://www.archives.gov/ogis.

6. Revise § 304.6 to read as follows:
§ 304.6 Responses to requests.

(a) Acknowledgments of requests. On receipt of a request, if the agency cannot provide the requested information within two working days, then an acknowledgment letter or email message will be sent to the requester that will confirm the requester's agreement to pay fees under § 304.3(d) and will provide a request tracking number for further reference. Requesters may use this tracking number to determine the status of their request—including the date of its receipt and the estimated date on which action on it will be completed—by calling the agency's FOIA Public Liaison at (202) 480-2080. In some cases, the agency may seek further information or clarification from the requester.

(b) Grants of requests. Ordinarily, the agency will have 20 working days from when a request is received to determine whether to grant or deny the request. Once the agency makes such a determination, it will immediately notify the requester in writing. The agency will inform the requester in the notice of any fee charged under § 304.9 and will disclose records to the requester promptly upon payment of any applicable fee. The agency will also inform the requester of the availability of its FOIA Public Liaison to offer assistance.

(c) Adverse determinations of requests. Whenever the agency makes an adverse determination denying a request in any respect, it will notify the requester of that determination in writing. Adverse determinations, or denials of requests, consist of: A determination to withhold any requested record in whole or in part; a determination that a requested record does not exist or cannot be located; a determination that a record is not readily reproducible in the form or format sought by the requester; a determination that what has been requested is not a record subject to the FOIA; a determination on any disputed fee matter, including a denial of a request for a fee waiver; and a denial of a request for expedited treatment. The denial letter will include:

(1) The name and title or position of the person responsible for the denial;

(2) A brief statement of the reason(s) for the denial, including any FOIA exemption(s) applied by the agency in denying the request;

(3) An estimate of the volume of records or information withheld, in number of pages or in some other reasonable form of estimation. This estimate does not need to be provided if the volume is otherwise indicated through deletions on records disclosed in part, or if providing an estimate would harm an interest protected by an applicable exemption; and

(4) An indication on the released portion of a record of each exemption applied, at the place at which it was applied, if technically feasible.

(5) A statement that the denial may be appealed under § 304.8(a) and a description of the requirements of § 304.8(a).

(6) A statement notifying the requester of the assistance available from the agency's FOIA Public Liaison and the dispute resolution services offered by OGIS.

(d) Markings on released documents. Records disclosed in part will be marked or annotated to show the amount of information deleted, unless doing so would harm an interest protected by an applicable exemption. The location of the information deleted also will be indicated on the record, if technically feasible.

7. Revise § 304.8 to read as follows:
§ 304.8 Appeals.

(a) Appeals of adverse determinations. If you are dissatisfied with the response to your request, you may appeal an adverse determination denying your request, in any respect, to the Chairman of the agency. You must make your appeal in writing, by email or letter, and it must be received by the agency within 90 calendar days of the date of the agency's response denying your request. Your appeal should provide reasons and supporting information as to why the initial determination was incorrect. The appeal should clearly identify the particular determination (including the assigned request number, if known) that you are appealing. For the quickest possible handling of a mail request, you should mark your appeal “Freedom of Information Act Appeal.” The Chairman or his or her designee will act on the appeal, except that an appeal ordinarily will not be acted on if the request becomes a matter of FOIA litigation.

(b) Responses to appeals. The decision on your appeal will be communicated to you by email or letter, ordinarily within 20 working days of receipt of your appeal. A decision affirming an adverse determination in whole or in part will contain a statement of the reason(s) for the affirmance, including any FOIA exemption(s) applied, and will inform you of the FOIA provisions for court review of the decision. The decision will also inform you of the mediation services offered by OGIS as a non-exclusive alternative to FOIA litigation. If the adverse determination is reversed or modified on appeal, in whole or in part, then you will be notified in a written decision and your request will be reprocessed in accordance with that appeal decision.

(c) Engaging in dispute resolution services provided by OGIS. Mediation is a voluntary process. If the agency agrees to participate in the mediation services provided by OGIS, it will actively engage in the process in an attempt to resolve the dispute.

(d) When appeal is required. As a general rule, if you wish to seek review by a court of any adverse determination, you must first appeal it in a timely fashion under this section.

8. Amend § 304.9 by revising paragraphs (a), (d)(6), (e), (i)(3), and (k) to read as follows:
§ 304.9 Fees.

(a) In general. The agency will charge for processing requests under the FOIA in accordance with paragraph (c) of this section and with the OMB Guidelines. The agency ordinarily will collect all applicable fees before sending copies of requested records to a requester. Requesters must pay fees by check or money order made payable to the Treasury of the United States.

(d) * * *

(6) (i) If the agency fails to comply with the FOIA's time limits in which to respond to a request, it may not charge search fees, or, in the instances of requests from requesters described in paragraph (d)(1) of this section, may not charge duplication fees, except as described in (d)(6)(ii)-(iv).

(ii) If the agency has determined that unusual circumstances as defined by the FOIA apply and the agency provided timely written notice to the requester in accordance with the FOIA, a failure to comply with the time limit will be excused for an additional 10 working days.

(iii) If the agency has determined that unusual circumstances, as defined by the FOIA, apply and more than 5,000 pages are necessary to respond to the request, the agency may charge search fees, or, in the case of requesters described in paragraph (d)(1) of this section, may charge duplication fees, if the following steps are taken. The agency must have provided timely written notice of unusual circumstances to the requester in accordance with the FOIA and the agency must have discussed with the requester via written mail, email, or telephone (or made not less than three good-faith attempts to do so) how the requester could effectively limit the scope of the request in accordance with 5 U.S.C. 552(a)(6)(B)(ii). If this exception is satisfied, the agency may charge all applicable fees incurred in the processing of this request.

(iv) If a court has determined that exceptional circumstances exist, as defined by the FOIA, a failure to comply with the time limits will be excused for the length of time provided by the court order.

(e) Notice of anticipated fees in excess of $50.00. (1) When the agency determines or estimates that the fees to be charged under this section will amount to more than $50.00, it will notify the requester of the actual or estimated amount of the fees, unless the requester has indicated a willingness to pay fees as high as those anticipated. If only a portion of the fee can be estimated readily, the agency will advise the requester that the estimated fee might be only a portion of the total fee. In cases in which a requester has been notified that actual or estimated fees amount to more than $50.00, the request will not be considered received and further work will not be done on it until the requester agrees to pay the total anticipated fee. Any such agreement should be memorialized in writing. A notice under this paragraph will offer the requester an opportunity to discuss the matter with agency personnel in order to reformulate the request to meet the requester's needs at a lower cost.

(2) If the requester has indicated a willingness to pay some designated amount of fees, but the agency estimates that the total fee will exceed that amount, the agency will suspend the processing of the request when it notifies the requester of the estimated fees in excess of the amount the requester has indicated a willingness to pay. The agency will inquire whether the requester wishes to revise the amount of fees the requester is willing to pay or modify the request. Once the requester responds, the time to respond will resume from where it was at the date of the notification.

(3) The agency will make its FOIA Public Liaison available to assist any requester in reformulating a request to meet the requester's needs at a lower cost.

(i) * * *

(3) Where a requester has previously failed to pay a properly charged FOIA fee to the agency within 30 calendar days of the date of billing, the agency may require the requester to pay the full amount due, plus any applicable interest, and to make an advance payment of the full amount of any anticipated fee, before it begins to process a new request or continues to process a pending request from that requester.

(k) Requirements for waiver or reduction of fees. (1) Requesters may seek a waiver of fees by submitting a written application demonstrating how disclosure of the requested information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester.

(2) The agency will furnish records responsive to a request without charge or at a reduced rate when it determines, based on all available information, that the factors described in paragraphs (k)(2)(i) through (iii) of this section are satisfied:

(i) Disclosure of the requested information would shed light on the operations or activities of the government. The subject of the requested records must concern identifiable operations or activities of the Federal Government with a connection that is direct and clear, not remote or attenuated.

(ii) Disclosure of the requested information is likely to contribute significantly to public understanding of those operations or activities. This factor is satisfied when the following criteria are met:

(A) Disclosure of the requested records must be meaningfully informative about government operations or activities. The disclosure of information that already is in the public domain, in either the same or a substantially identical form, would not be meaningfully informative if nothing new would be added to the public's understanding.

(B) The disclosure must contribute to the understanding of a reasonably broad audience of persons interested in the subject, as opposed to the individual understanding of the requester. A requester's expertise in the subject area as well as the requester's ability and intention to convey information effectively to the public will be considered. The agency will presume that a representative of the news media satisfies this consideration.

(iii) The disclosure must not be primarily in the commercial interest of the requester. To determine whether disclosure of the requested information is primarily in the commercial interest of the requester, the agency will consider the following criteria:

(A) Whether the requester has any commercial interest that would be furthered by the requested disclosure. A commercial interest includes any commercial, trade, or profit interest. Requesters will be given an opportunity to provide explanatory information regarding this consideration.

(B) Whether any identified commercial interest is the primary interest furthered by the request. A waiver or reduction of fees is justified when the requirements of paragraphs (k)(2)(i) and (ii) of this section are satisfied and any commercial interest is not the primary interest furthered by the request. The agency ordinarily will presume that when a news media requester has satisfied factors in paragraphs (k)(2)(i) and (ii) of this section, the request is not primarily in the commercial interest of the requester. Disclosure to data brokers or others who merely compile and market government information for direct economic return will not be presumed primarily to serve the public interest.

(3) Where only some of the records to be released satisfy the requirements for a waiver of fees, a waiver will be granted for those records.

(4) Requests for a waiver or reduction of fees should ordinarily be made when the request is first submitted to the agency and should address the criteria referenced above. A requester may submit a fee waiver request at a later time so long as the underlying record request is pending or on administrative appeal. When a requester who has committed to pay fees subsequently asks for a waiver of those fees and that waiver is denied, the requester must pay any costs incurred up to the date the fee waiver request was received.

9. Amend § 304.10 by revising paragraph (a) to read as follows:
§ 304.10 Preservation of records.

(a) The agency will preserve all correspondence pertaining to the requests that it receives under this subpart, as well as copies of all requested records, until disposition or destruction is authorized by title 44 of the United States Code or the National Archives and Records Administration's General Records Schedule 4.2. Records will not be disposed of while they are the subject of a pending request, appeal, or lawsuit under the FOIA.

Dated: January 11, 2017. David M. Pritzker, Deputy General Counsel.
[FR Doc. 2017-00891 Filed 1-19-17; 8:45 am] BILLING CODE 6110-01-P
FEDERAL RESERVE SYSTEM 12 CFR Part 201 [Docket No. R-1558] RIN 7100 AE-66 Regulation A: Extensions of Credit by Federal Reserve Banks AGENCY:

Board of Governors of the Federal Reserve System.

ACTION:

Final rule.

SUMMARY:

The Board of Governors of the Federal Reserve System (“Board”) has adopted final amendments to its Regulation A to reflect the Board's approval of an increase in the rate for primary credit at each Federal Reserve Bank. The secondary credit rate at each Reserve Bank automatically increased by formula as a result of the Board's primary credit rate action.

DATES:

The amendments to part 201 (Regulation A) are effective January 23, 2017. The rate changes for primary and secondary credit were effective as determined by the Board in its December 14, 2016 announcement.

FOR FURTHER INFORMATION CONTACT:

Clinton Chen, Attorney (202-452-3952), or Sophia Allison, Special Counsel, (202-452-3565), Legal Division, or Lyle Kumasaka, Senior Financial Analyst (202-452-2382); for users of Telecommunications Device for the Deaf (TDD) only, contact 202-263-4869; Board of Governors of the Federal Reserve System, 20th and C Streets NW., Washington, DC 20551.

SUPPLEMENTARY INFORMATION:

The Federal Reserve Banks make primary and secondary credit available to depository institutions as a backup source of funding on a short-term basis, usually overnight. The primary and secondary credit rates are the interest rates that the twelve Federal Reserve Banks charge for extensions of credit under these programs. In accordance with the Federal Reserve Act, the primary and secondary credit rates are established by the boards of directors of the Federal Reserve Banks, subject to the review and determination of the Board.

The Board voted to approve a 1/4 percentage point increase in the primary credit rate in effect at each of the twelve Federal Reserve Banks, thereby increasing from 1.00 percent to 1.25 percent the rate that each Reserve Bank charges for extensions of primary credit. In addition, the Board had previously approved to renew the formula for the secondary credit rate, the primary credit rate plus 50 basis points. Under the formula, the secondary credit rate in effect at each of the twelve Federal Reserve Banks increased by 1/4 percentage point as a result of the Board's primary credit rate action, thereby increasing from 1.50 percent to 1.75 percent the rate that each Reserve Bank charges for extensions of secondary credit. The amendments to Regulation A reflect these rate changes.

The rate changes for primary and secondary credit were effective as determined by the Board in its December 14, 2016 announcement.1

1 Federal Reserve Implementation Note, “Decisions Regarding Monetary Policy Implementation” (Dec. 14, 2016), https://www.federalreserve.gov/newsevents/press/monetary/20161214a1.htm.

The 1/4 percentage point increase in the primary credit rate was associated with an increase in the target range for the federal funds rate (from a target range of 1/4 to 1/2 percent to a target range of 1/2 to 3/4 percent) announced by the Federal Open Market Committee (“Committee”) on December 14, 2016, as described in the Board's amendment of its Regulation D published elsewhere in today's Federal Register.

The presentation of the interest rates for primary and secondary credit has been changed in the Code of Federal Regulations to improve clarity.

Administrative Procedure Act

In general, the Administrative Procedure Act (12 U.S.C. 551 et seq.) (“APA”) imposes three principal requirements when an agency promulgates legislative rules (rules made pursuant to congressionally delegated authority): (1) Publication with adequate notice of a proposed rule; (2) followed by a meaningful opportunity for the public to comment on the rule's content; and (3) publication of the final rule not less than 30 days before its effective date. The APA provides that notice and comment procedures do not apply if the agency for good cause finds them to be “unnecessary, impracticable, or contrary to the public interest.” 12 U.S.C. 553(b)(3)(A). Section 553(d) of the APA also provides that publication not less than 30 days prior to a rule's effective date is not required for (1) a substantive rule which grants or recognizes an exemption or relieves a restriction; (2) interpretive rules and statements of policy; or (3) an agency finding good cause for shortened notice and publishing its reasoning with the rule. 12 U.S.C. 553(d). The APA further provides that the notice, public comment, and delayed effective date requirements of 5 U.S.C. 553 do not apply “to the extent that there is involved . . . a matter relating to agency management or personnel or to public property, loans, grants, benefits, or contracts.” 5 U.S.C. 553(a)(2) (emphasis added).

Regulation A establishes the interest rates that the twelve Reserve Banks charge for extensions of primary credit and secondary credit. Accordingly, the Board has determined that the notice, public comment, and delayed effective date requirements of 5 U.S.C. 553 do not apply to the final amendments to Regulation A because the amendments involve a matter relating to loans. In addition, the Board has determined that, were the APA's requirements for notice, public comment, and delayed effective date to apply to the final amendments to Regulation A, those requirements would be unnecessary and contrary to the public interest. Delay in implementation of changes to the rates charged on primary credit and secondary credit would permit insured depository institutions to profit improperly from the difference in the current rate and the announced increased rate. Delay would also undermine the Board's action in responding to economic data and conditions. For these reasons, the Board has determined that “good cause” within the meaning of the APA exists to dispense with the notice, public comment, and delayed effective date procedures of the APA with respect to the final amendments to Regulation A.

Regulatory Flexibility Analysis

The Regulatory Flexibility Act (“RFA”) does not apply to a rulemaking where a general notice of proposed rulemaking is not required.2 As noted previously, a general notice of proposed rulemaking is not required if the final rule involves a matter relating to loans. Furthermore, the Board has determined that it is unnecessary and contrary to the public interest to publish a general notice of proposed rulemaking for this final rule. Accordingly, the RFA's requirements relating to an initial and final regulatory flexibility analysis do not apply.

2 5 U.S.C. 603 and 604.

Paperwork Reduction Act

In accordance with the Paperwork Reduction Act (“PRA”) of 1995 (44 U.S.C. 3506; 5 CFR part 1320 Appendix A.1), the Board reviewed the final rule under the authority delegated to the Board by the Office of Management and Budget. The final rule contains no requirements subject to the PRA.

List of Subjects in 12 CFR Part 201

Banks, banking, Federal Reserve System, Reporting and recordkeeping.

Authority and Issuance

For the reasons set forth in the preamble, the Board is amending 12 CFR Chapter II to read as follows:

12 CFR CHAPTER II PART 201—EXTENSIONS OF CREDIT BY FEDERAL RESERVE BANKS (REGULATION A) 1. The authority citation for part 201 continues to read as follows: Authority:

12 U.S.C. 248(i)-(j), 343 et seq., 347a, 347b, 347c, 348 et seq., 357, 374, 374a, and 461.

2. In § 201.51, paragraphs (a) and (b) are revised to read as follows:
§ 201.51 Interest rates applicable to credit extended by a Federal Reserve Bank.3

3 The primary, secondary, and seasonal credit rates described in this section apply to both advances and discounts made under the primary, secondary, and seasonal credit programs, respectively.

(a) Primary credit. The interest rate at each Federal Reserve Bank for primary credit provided to depository institutions under § 201.4(a) is 1.25 percent.

(b) Secondary credit. The interest rate at each Federal Reserve Bank for secondary credit provided to depository institutions under § 201.4(b) is 1.75 percent.

By order of the Board of Governors of the Federal Reserve System, January 9, 2017. Robert deV. Frierson, Secretary of the Board.
[FR Doc. 2017-00612 Filed 1-19-17; 8:45 am] BILLING CODE 6210-01-P
FEDERAL RESERVE SYSTEM 12 CFR Part 204 [Docket No. R-1559] RIN 7100 AE-67 Regulation D: Reserve Requirements of Depository Institutions AGENCY:

Board of Governors of the Federal Reserve System.

ACTION:

Final rule.

SUMMARY:

The Board of Governors of the Federal Reserve System (“Board”) is amending Regulation D (Reserve Requirements of Depository Institutions) to revise the rate of interest paid on balances maintained to satisfy reserve balance requirements (“IORR”) and the rate of interest paid on excess balances (“IOER”) maintained at Federal Reserve Banks by or on behalf of eligible institutions. The final amendments specify that IORR is 0.75 percent and IOER is 0.75 percent, a 0.25 percentage point increase from their prior levels. The amendments are intended to enhance the role of such rates of interest in moving the Federal funds rate into the target range established by the Federal Open Market Committee (“FOMC” or “Committee”).

DATES:

The amendments to part 204 (Regulation D) are effective January 23, 2017. The IORR and IOER rate changes were applicable on December 15, 2016, as specified in 12 CFR 204.10(b)(5), as amended.

FOR FURTHER INFORMATION CONTACT:

Clinton Chen, Attorney (202-452-3952), or Sophia Allison, Special Counsel (202-452-3198), Legal Division, or Thomas Keating, Financial Analyst (202-973-7401), or Laura Lipscomb, Section Chief (202-973-7964), Division of Monetary Affairs; for users of Telecommunications Device for the Deaf (TDD) only, contact 202-263-4869; Board of Governors of the Federal Reserve System, 20th and C Streets NW., Washington, DC 20551.

SUPPLEMENTARY INFORMATION:

I. Statutory and Regulatory Background

For monetary policy purposes, section 19 of the Federal Reserve Act (“the Act”) imposes reserve requirements on certain types of deposits and other liabilities of depository institutions. Regulation D, which implements section 19 of the Act, requires that a depository institution meet reserve requirements by holding cash in its vault, or if vault cash is insufficient, by maintaining a balance in an account at a Federal Reserve Bank (“Reserve Bank”).1 Section 19 also provides that balances maintained by or on behalf of certain institutions in an account at a Reserve Bank may receive earnings to be paid by the Reserve Bank at least once each quarter, at a rate or rates not to exceed the general level of short-term interest rates. Institutions that are eligible to receive earnings on their balances held at Reserve Banks (“eligible institutions”) include depository institutions and certain other institutions.2 Section 19 also provides that the Board may prescribe regulations concerning the payment of earnings on balances at a Reserve Bank.3 Prior to these amendments, Regulation D specified a rate of 0.50 percent for both IORR and IOER.4

1 12 CFR 204.5(a)(1).

2 Section 19(b)(1)(A) defines “depository institution” as any insured bank as defined in section 3 of the Federal Deposit Insurance Act or any bank which is eligible to make application to become an insured bank under section 5 of such Act; any mutual savings bank as defined in section 3 of the Federal Deposit Insurance Act or any bank which is eligible to make application to become an insured bank under section 5 of such Act; any savings bank as defined in section 3 of the Federal Deposit Insurance Act or any bank which is eligible to make application to become an insured bank under section 5 of such Act; any insured credit union as defined in section 101 of the Federal Credit Union Act or any credit union which is eligible to make application to become an insured credit union pursuant to section 201 of such Act; any member as defined in section 2 of the Federal Home Loan Bank Act; [and] any savings association (as defined in section 3 of the Federal Deposit Insurance Act) which is an insured depository institution (as defined in such Act) or is eligible to apply to become an insured depository institution under the Federal Deposit Insurance Act. See 12 U.S.C. 461(b)(1)(A). Eligible institution also includes any trust company, corporation organized under section 25A or having an agreement with the Board under section 25, or any branch or agency of a foreign bank (as defined in section 1(b) of the International Banking Act of 1978). 12 U.S.C. 461(b)(12)(C); see 12 CFR 204.2(y) (definition of “eligible institution”).

3 See 12 U.S.C. 461(b)(12).

4 See 12 CFR 204.10(b)(5).

II. Amendments to IORR and IOER

The Board is amending § 204.10(b)(5) of Regulation D to specify that IORR is 0.75 percent and IOER is 0.75 percent. This 0.25 percentage point increase in the IORR and IOER was associated with an increase in the target range for the federal funds rate, from a target range of 1/4 to 1/2 percent to a target range of 1/2 to 3/4 percent, announced by the FOMC on December 14, 2016 with an effective date of December 15, 2016. The FOMC's press release on the same day as the announcement noted that:

Information received since the Federal Open Market Committee met in November indicates that the labor market has continued to strengthen and that economic activity has been expanding at a moderate pace since mid-year. Job gains have been solid in recent months and the unemployment rate has declined. Household spending has been rising moderately but business fixed investment has remained soft. Inflation has increased since earlier this year but is still below the Committee's 2 percent longer-run objective, partly reflecting earlier declines in energy prices and in prices of non-energy imports. Market-based measures of inflation compensation have moved up considerably but still are low; most survey-based measures of longer-term inflation expectations are little changed, on balance, in recent months.

Consistent with its statutory mandate, the Committee seeks to foster maximum employment and price stability. The Committee expects that, with gradual adjustments in the stance of monetary policy, economic activity will expand at a moderate pace and labor market conditions will strengthen somewhat further. Inflation is expected to rise to 2 percent over the medium term as the transitory effects of past declines in energy and import prices dissipate and the labor market strengthens further. Near-term risks to the economic outlook appear roughly balanced. The Committee continues to closely monitor inflation indicators and global economic and financial developments.

In view of realized and expected labor market conditions and inflation, the Committee decided to raise the target range for the federal funds rate to 1/2 to 3/4 percent. The stance of monetary policy remains accommodative, thereby supporting some further strengthening in labor market conditions and a return to 2 percent inflation.

A Federal Reserve Implementation note released simultaneously with the announcement stated that:

The Board of Governors of the Federal Reserve System voted unanimously to raise the interest rate paid on required and excess reserve balances to 0.75 percent, effective December 15, 2016.

As a result, the Board is amending § 204.10(b)(5) of Regulation D to change IORR to 0.75 percent and IOER to 0.75 percent.

III. Administrative Procedure Act

In general, the Administrative Procedure Act (12 U.S.C. 551 et seq.) (“APA”) imposes three principal requirements when an agency promulgates legislative rules (rules made pursuant to congressionally delegated authority): (1) Publication with adequate notice of a proposed rule; (2) followed by a meaningful opportunity for the public to comment on the rule's content; and (3) publication of the final rule not less than 30 days before its effective date. The APA provides that notice and comment procedures do not apply if the agency for good cause finds them to be “unnecessary, impracticable, or contrary to the public interest.” 12 U.S.C. 553(b)(3)(A). Section 553(d) of the APA also provides that publication not less than 30 days prior to a rule's effective date is not required for (1) a substantive rule which grants or recognizes an exemption or relieves a restriction; (2) interpretive rules and statements of policy; or (3) an agency finding good cause for shortened notice and publishing its reasoning with the rule. 12 U.S.C. 553(d).

The Board has determined that good cause exists for finding that the notice, public comment, and delayed effective date provisions of the APA are unnecessary, impracticable, or contrary to the public interest with respect to the final amendments to Regulation D. The rate increases for IORR and IOER that are reflected in the final amendments to Regulation D were made with a view towards accommodating commerce and business and with regard to their bearing upon the general credit situation of the country. Notice and public comment would prevent the Board's action from being effective as promptly as necessary in the public interest, and would not otherwise serve any useful purpose. Notice, public comment, and a delayed effective date would create uncertainty about the finality and effectiveness of the Board's action and undermine the effectiveness of that action. Accordingly, the Board has determined that good cause exists to dispense with the notice, public comment, and delayed effective date procedures of the APA with respect to the final amendments to Regulation D.

IV. Regulatory Flexibility Analysis

The Regulatory Flexibility Act (“RFA”) does not apply to a rulemaking where a general notice of proposed rulemaking is not required.5 As noted previously, the Board has determined that it is unnecessary and contrary to the public interest to publish a general notice of proposed rulemaking for this final rule. Accordingly, the RFA's requirements relating to an initial and final regulatory flexibility analysis do not apply.

5 5 U.S.C. 603 and 604.

V. Paperwork Reduction Act

In accordance with the Paperwork Reduction Act (“PRA”) of 1995 (44 U.S.C. 3506; 5 CFR part 1320 Appendix A.1), the Board reviewed the final rule under the authority delegated to the Board by the Office of Management and Budget. The final rule contains no requirements subject to the PRA.

List of Subjects in 12 CFR Part 204

Banks, banking, Reporting and recordkeeping requirements.

For the reasons set forth in the preamble, the Board amends 12 CFR part 204 as follows:

PART 204—RESERVE REQUIREMENTS OF DEPOSITORY INSTITUTIONS (REGULATION D) 1. The authority citation for part 204 continues to read as follows: Authority:

12 U.S.C. 248(a), 248(c), 371a, 461, 601, 611, and 3105.

2. Section 204.10 is amended by revising paragraph (b)(5) to read as follows:
§ 204.10 Payment of interest on balances.

(b) * * *

(5) The rates for IORR and IOER are:

Rate
  • (percent)
  • IORR 0.75 IOER 0.75
    By order of the Board of Governors of the Federal Reserve System, January 9, 2017. Robert deV. Frierson, Secretary of the Board.
    [FR Doc. 2017-00613 Filed 1-19-17; 8:45 am] BILLING CODE 6210-01-P
    NATIONAL CREDIT UNION ADMINISTRATION 12 CFR Part 747 RIN 3133-AE67 Civil Monetary Penalty Inflation Adjustment AGENCY:

    National Credit Union Administration (NCUA).

    ACTION:

    Interim final rule.

    SUMMARY:

    The NCUA Board (Board) is amending its regulations to adjust the maximum amount of each civil monetary penalty (CMP) within its jurisdiction to account for inflation. This action, including the amount of the adjustments, is required under the Federal Civil Penalties Inflation Adjustment Act of 1990, as amended by the Debt Collection Improvement Act of 1996 and the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015.

    DATES:

    This interim final rule is effective January 23, 2017. Comments must be received on or before February 22, 2017.

    ADDRESSES:

    You may submit comments by any of the following methods (Please send comments by one method only):

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

    NCUA Web site: https://www.ncua.gov/regulation-supervision/Pages/rules/proposed.aspx. Follow the instructions for submitting comments.

    Email: Address to [email protected] Include “[Your name] Comments on “Civil Monetary Penalty Inflation Adjustment” in the email subject line.

    Fax: (703) 518-6319. Use the subject line described above for email.

    Mail: Address to Gerard Poliquin, Secretary of the Board, National Credit Union Administration, 1775 Duke Street, Alexandria, Virginia 22314-3428.

    Hand Delivery/Courier: Same as mail address.

    Public Inspection: All public comments are available on the agency's Web site at http://www.ncua.gov/RegulationsOpinionsLaws/comments as submitted, except as may not be possible for technical reasons. Public comments will not be edited to remove any identifying or contact information. Paper copies of comments may be inspected in NCUA's law library at 1775 Duke Street, Alexandria, Virginia 22314, by appointment weekdays between 9:00 a.m. and 3:00 p.m. To make an appointment, call (703) 518-6546 or send an email to [email protected]

    FOR FURTHER INFORMATION CONTACT:

    Ian Marenna, Senior Trial Attorney, at 1775 Duke Street, Alexandria, VA 22314, or telephone: (703) 518-6540.

    SUPPLEMENTARY INFORMATION: I. Legal Background II. Calculation of Adjustments III. Regulatory Procedures I. Legal Background A. Statutory Requirements and OMB Guidance

    The Debt Collection Improvement Act of 1996 1 (DCIA) amended the Federal Civil Penalties Inflation Adjustment Act of 1990 2 (FCPIA Act) to require every federal agency to enact regulations that adjust each CMP provided by law under its jurisdiction by the rate of inflation at least once every four years.

    1 Public Law 104-134, Sec. 31001(s), 110 Stat. 1321-373 (Apr. 26, 1996). The law is codified at 28 U.S.C. 2461 note.

    2 Public Law 101-410, 104 Stat. 890 (Oct. 5, 1990), codified at 28 U.S.C. 2461 note.

    In November 2015, Congress further amended the CMP inflation requirements in the Bipartisan Budget Act of 2015,3 which contains the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (the 2015 amendments).4 This legislation provided for an initial “catch-up” adjustment of CMPs in 2016, followed by annual adjustments. The catch-up adjustment re-set CMP maximum amounts by setting aside the inflation adjustments that agencies made in prior years and instead calculated inflation with reference to the year when each CMP was enacted or last modified by Congress. Agencies were required to publish their catch-up adjustments in an interim final rule by July 1, 2016 and make them effective by August 1, 2016.5 NCUA complied with these requirements in a June 2016 interim final rule, followed by an October 2016 final rule to confirm the adjustments as final.6

    3 Public Law 114-74, 129 Stat. 584 (Nov. 2, 2015).

    4 129 Stat. 599.

    5 Public Law 114-74, Sec. 701(b)(1), 129 Stat. 584, 599 (Nov. 2, 2015).

    6 81 FR 40152 (June 21, 2016); 81 FR 78028 (Nov. 7, 2016).

    The 2015 amendments also specified how agencies must conduct annual inflation adjustments after the 2016 catch-up adjustment. Beginning in 2017, agencies must make the required adjustments and publish them in the Federal Register by January 15 of each succeeding year.7 The statute provides that the adjustments shall be made notwithstanding the section of the Administrative Procedure Act (APA) that requires prior notice and public comment for agency rulemaking.8 The 2015 amendments also specify that each CMP maximum must be increased by the percentage by which the consumer price index for urban consumers (CPI-U) 9 for October of the year immediately preceding the year the adjustment is made exceeds the CPI-U for October of the prior year.10 For example, for the adjustment made in 2017, agencies must compare the October 2016 CPI-U with the October 2015 CPI-U.

    7 Public Law 114-74, Sec. 701(b)(1), 129 Stat. 584, 599 (Nov. 2, 2015).

    8 Id.

    9 This index is published by the Department of Labor, Bureau of Labor Statistics, and is available at its Web site: http://www.bls.gov/cpi/.

    10 Public Law 114-74, Sec. 701(b)(1)(2)(B), 129 Stat. 584, 600 (Nov. 2, 2015).

    The 2015 amendments also provide that agencies may forgo the required annual adjustments in certain circumstances. Specifically, in a subsection titled “Other Adjustments Made,” the statute provides that an agency is not required to make an annual adjustment to a CMP if it has been increased by a greater amount than the contemplated annual adjustment in the preceding 12 months.11 When these criteria are met, the agency has discretion not to make the adjustments otherwise required by the statute.

    11 Public Law 114-74, Sec. 701(b)(1), 129 Stat. 584, 600 (Nov. 2, 2015).

    In addition, the 2015 amendments directed the Office of Management and Budget (OMB) to issue guidance to agencies on implementing the inflation adjustments.12 OMB is required to issue its guidance each December and did so on December 16, 2016.13 This OMB guidance for the upcoming 2017 adjustments includes an inflationary multiplier (1.01636) to apply to each current CMP maximum amount to determine the adjusted maximum. The guidance also addresses the exception described above for adjustments made in the preceding 12 months, indicating that the exception applies to adjustments made due to a law other than the 2015 amendments.14 Finally, the guidance addresses rulemaking procedures and agency reporting and oversight requirements.

    12 Public Law 114-74, Sec. 701(b)(4), 129 Stat. 584, 601 (Nov. 2, 2015).

    13 Id.; OMB, Implementation of the 2017 Annual Adjustment Pursuant to the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, M-17-11 (Dec. 16, 2016), available at https://www.whitehouse.gov/sites/default/files/omb/memoranda/2017/m-17-11_0.pdf (noting that the applicable 2017 CMP-adjustment multiplier is 1.01636).

    14 Id. at 3.

    The next section sets forth the Board's calculation of the adjustments for 2017, in accordance with the foregoing requirements.

    B. Application to the 2017 Adjustments

    This section applies the statutory requirements and OMB's guidance to NCUA CMPs.

    As explained above, the 2015 amendments require NCUA to adjust the maximum amounts of its CMPs by the percentage by which the October 2016 CPI-U (241.729) exceeds the October 2015 CPI-U (237.838). This percentage is 1.636. This percentage increase can be expressed as an inflation multiplier (the quotient of the October 2016 figure divided by the October 2015 figure). Accordingly, each CMP maximum amount should be multiplied by 1.01636 to determine the adjusted maximum amount. OMB's guidance identifies the same multiplier.

    The Board has considered the exception in the 2015 amendments for adjustments made in the preceding 12 months, discussed above, but has decided not to invoke it. The OMB guidance indicates that this exception applies when the adjustments in the preceding 12 months were made under authority other than the 2015 amendments. The Board finds this reading of the statute reasonable. Even if this exception did apply as a threshold matter, there would be good reasons not to apply it. First, the adjustments calculated below are relatively minor, as the maximums will increase by about 1.6 percent. Second, NCUA is not required to and historically has not assessed CMPs at the maximum levels. Third, if NCUA chose to forgo the increases this year, it would not be able to capture this inflation in later years, which would cause the maximums to fall out of line with annual inflation. Finally, the Board anticipates that the federal banking agencies will not apply this exception to CMPs for which NCUA and the banking agencies have concurrent jurisdiction. Although NCUA is not required to make its adjustments in accord with any other agency, maintaining consistency in this area is desirable. In sum, even if the exception might apply, the Board would not invoke it this year.

    The table below presents the adjustment calculations. The current maximums are found at 12 CFR 747.1001, as adjusted in June 2016. This amount is multiplied by the inflation multiplier to calculate the new maximum in the far right column. Only these adjusted maximum amounts, and not the calculations, will be codified at 12 CFR 747.1001 under this interim final rule. The adjusted amounts will be effective January 15, 2017, and can be applied to violations that occurred on or after November 2, 2015, the date the 2015 amendments were enacted.

    15 The table uses condensed descriptions of CMP tiers. Refer to the U.S. Code citations for complete descriptions.

    Table—Calculation of Maximum CMP Adjustments Citation Description/tier 15 Current
  • maximum
  • ($)
  • Multiplier Adjusted
  • maximum
  • ($)
  • (Current
  • maximum ×
  • multiplier)
  • 12 U.S.C. 1782(a)(3) Inadvertent failure to submit a report or the inadvertent submission of a false or misleading report 3,787 1.01636 3,849. 12 U.S.C. 1782(a)(3) Non-inadvertent failure to submit a report or the non-inadvertent submission of a false or misleading report 37,872 1.01636 38,492. 12 U.S.C. 1782(a)(3) Failure to submit a report or the submission of a false or misleading report done knowingly or with reckless disregard Lesser of 1,893,610 or 1% of total CU assets 1.01636 Lesser of 1,924,589 or 1% of total CU assets. 12 U.S.C. 1782(d)(2)(A) Tier 1 CMP for inadvertent failure to submit certified statement of insured shares and charges due to NCUSIF, or inadvertent submission of false or misleading statement 3,462 1.01636 3,519. 12 U.S.C. 1782(d)(2)(B) Tier 2 CMP for non-inadvertent failure to submit certified statement or submission of false or misleading statement 34,620 1.01636 35,186. 12 U.S.C. 1782(d)(2)(C) Tier 3 CMP for failure to submit a certified statement or the submission of a false or misleading statement done knowingly or with reckless disregard Lesser of 1,730,990 or 1% of total CU assets 1.01636 Lesser of 1,759,309 or 1% of total CU assets. 12 U.S.C. 1785(a)(3) Non-compliance with insurance logo requirements 118 1.01636 120. 12 U.S.C. 1785(e)(3) Non-compliance with NCUA security requirements 275 1.01636 279. 12 U.S.C. 1786(k)(2)(A) Tier 1 CMP for violations of law, regulation, and other orders or agreements 9,468 1.01636 9,623. 12 U.S.C. 1786(k)(2)(B) Tier 2 CMP for violations of law, regulation, and other orders or agreements and for recklessly engaging in unsafe or unsound practices or breaches of fiduciary duty 47,340 1.01636 48,114. 12 U.S.C. 1786(k)(2)(C) Tier 3 CMP for knowingly committing the violations under Tier 1 or 2 (natural person) 1,893,610 1.01636 1,924,589. 12 U.S.C. 1786(k)(2)(C) Tier 3 (same) (CU) Lesser of 1,893,610 or 1% of total CU assets 1.01636 Lesser of 1,924,589 or 1% of total CU assets. 12 U.S.C. 1786(w)(5)(A)(ii) Non-compliance with senior examiner post-employment restrictions 311,470 1.01636 316,566. 15 U.S.C. 1639e(k) Non-compliance with appraisal independence standards (first violation) 10,875 1.01636 11,053. 15 U.S.C. 1639e(k) Subsequent violations of the same 21,749 1.01636 22,105. 42 U.S.C. 4012a(f)(5) Non-compliance with flood insurance requirements 2,056 1.01636 2,090.
    III. Regulatory Procedures A. Interim Final Rule Under the APA

    In the 2015 amendments to the FCPIA Act, Congress provided that agencies shall make the required inflation adjustments in 2017 and subsequent years notwithstanding 5 U.S.C. 553,16 which requires agencies to follow notice-and-comment procedures in rulemaking and to make rules effective no sooner than 30 days after publication in the Federal Register. The 2015 amendments provide a clear exception to these requirements.17 In addition, the Board finds that notice-and-comment procedures would be impracticable and unnecessary under the APA because of the largely ministerial and technical nature of the rule, which affords agencies limited discretion in promulgating the rule, and the statutory deadline for making the adjustments.18 In these circumstances, the Board finds good cause to issue an interim final rule without issuing a notice of proposed rulemaking. The Board also finds good cause to make the interim final rule effective upon publication because of the statutory deadline. Accordingly, this interim final rule is issued without prior notice and will become effective immediately upon publication. However, the Board invites comments on all aspects of the interim final rule. The Board will review and consider all comments before issuing a final rule.

    16 Public Law 114-74, Sec. 701(b)(1), 129 Stat. 584, 599 (Nov. 2, 2015).

    17 See 5 U.S.C. 559; Asiana Airlines v. Fed. Aviation Admin., 134 F.3d 393, 396-99 (D.C. Cir. 1998).

    18 5 U.S.C. 553(b)(3)(B); see Mid-Tex Elec. Co-op., Inc. v. Fed. Energy Regulatory Comm'n, 822 F.2d 1123, 1133-34 (D.C. Cir. 1987).

    B. Regulatory Flexibility Act

    The Regulatory Flexibility Act requires the Board to prepare an analysis to describe any significant economic impact a regulation may have on a substantial number of small entities.19 For purposes of this analysis, the Board considers small credit unions to be those having under $100 million in assets.20 This interim final rule will not have a significant economic impact on a substantial number of small credit unions because it only affects the maximum amounts of CMPs that may be assessed in individual cases, which are not numerous and generally do not involve assessments at the maximum level. In addition, several of the CMPs are limited to a percentage of a credit union's assets. Finally, in assessing CMPs, the Board generally must consider a party's financial resources.21 Because this interim final rule will affect few, if any, small credit unions, the Board certifies that the final rule will not have a significant economic impact on small entities.

    19 5 U.S.C. 603(a).

    20 Interpretive Ruling and Policy Statement 15-1, 80 FR 57512 (Sept. 24, 2015).

    21 12 U.S.C. 1786(k)(2)(G)(i).

    C. Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (PRA) applies to rulemakings in which an agency creates a new paperwork burden on regulated entities or modifies an existing burden.22 For purposes of the PRA, a paperwork burden may take the form of either a reporting or a recordkeeping requirement, both referred to as information collections. This interim final rule adjusts the maximum amounts of certain CMPs that the Board may assess against individuals, entities, or credit unions but does not require any reporting or recordkeeping. Therefore, this interim final rule will not create new paperwork burdens or modify any existing paperwork burdens.

    22 44 U.S.C. 3507(d); 5 CFR part 1320.

    D. Executive Order 13132

    Executive Order 13132 encourages independent regulatory agencies to consider the impact of their actions on state and local interests. In adherence to fundamental federalism principles, NCUA, an independent regulatory agency as defined in 44 U.S.C. 3502(5), voluntarily complies with the executive order. This interim final rule adjusts the maximum amounts of certain CMPs that the Board may assess against individuals, entities, and federally insured credit unions, including state-chartered credit unions. However, the interim final rule does not create any new authority or alter the underlying statutory authorities that enable the Board to assess CMPs. Accordingly, this interim final rule will not have a substantial direct effect on the states, on the connection between the national government and the states, or on the distribution of power and responsibilities among the various levels of government. The Board has determined that this interim final rule does not constitute a policy that has federalism implications for purposes of the executive order.

    E. Assessment of Federal Regulations and Policies on Families

    The Board has determined that this interim final rule will not affect family well-being within the meaning of Section 654 of the Treasury and General Government Appropriations Act, 1999.23

    23 Public Law 105-277, 112 Stat. 2681 (Oct. 21, 1998).

    F. Small Business Regulatory Enforcement Fairness Act

    The Small Business Regulatory Enforcement Fairness Act of 1996 24 (SBREFA) provides generally for congressional review of agency rules. A reporting requirement is triggered in instances where the Board issues a final rule as defined by Section 551 of the APA.25 The Board has submitted this interim final rule to OMB for it to determine whether it is a “major rule” within the meaning of the relevant sections of SBREFA.

    24 Public Law 104-121, 110 Stat. 857 (Mar. 29, 1996).

    25 5 U.S.C. 551.

    List of Subjects in 12 CFR Part 747

    Civil monetary penalties, Credit unions.

    By the National Credit Union Administration Board on January 6, 2017. Gerard S. Poliquin, Secretary of the Board.

    For the reasons stated above, the NCUA Board amends 12 CFR part 747 as follows:

    PART 747—ADMINISTRATIVE ACTIONS, ADJUDICATIVE HEARINGS, RULES OF PRACTICE AND PROCEDURE, AND INVESTIGATIONS 1. The authority citation for part 747 continues to read as follows: Authority:

    12 U.S.C. 1766, 1782, 1784, 1785, 1786, 1787, 1790a, 1790d; 15 U.S.C. 1639e; 42 U.S.C. 4012a; Pub. L. 101-410; Pub. L. 104-134; Pub. L. 109-351; Pub. L. 114-74.

    Subpart K—Inflation Adjustment of Civil Monetary Penalties 2. Revise § 747.1001 to read as follows:
    § 747.1001 Adjustment of civil monetary penalties by the rate of inflation.

    (a) NCUA is required by the Federal Civil Penalties Inflation Adjustment Act of 1990 (Pub. L. 101-410, 104 Stat. 890, as amended (28 U.S.C. 2461 note)) to adjust the maximum amount of each civil monetary penalty within its jurisdiction by the rate of inflation. The following chart displays those adjusted amounts, as calculated pursuant to the statute:

    U.S. Code citation CMP description New maximum amount (1) 12 U.S.C. 1782(a)(3) Inadvertent failure to submit a report or the inadvertent submission of a false or misleading report $3,849. (2) 12 U.S.C. 1782(a)(3) Non-inadvertent failure to submit a report or the non-inadvertent submission of a false or misleading report $38,492. (3) 12 U.S.C. 1782(a)(3) Failure to submit a report or the submission of a false or misleading report done knowingly or with reckless disregard $1,924,589 or 1 percent of the total assets of the credit union, whichever is less. (4) 12 U.S.C. 1782(d)(2)(A) Tier 1 CMP for inadvertent failure to submit certified statement of insured shares and charges due to NCUSIF, or inadvertent submission of false or misleading statement $3,519. (5) 12 U.S.C. 1782(d)(2)(B) Tier 2 CMP for non-inadvertent failure to submit certified statement or submission of false or misleading statement $35,186. (6) 12 U.S.C. 1782(d)(2)(C) Tier 3 CMP for failure to submit a certified statement or the submission of a false or misleading statement done knowingly or with reckless disregard $1,759,309 or 1 percent of the total assets of the credit union, whichever is less. (7) 12 U.S.C. 1785(a)(3) Non-compliance with insurance logo requirements $120. (8) 12 U.S.C. 1785(e) (3) Non-compliance with NCUA security requirements $279. (9) 12 U.S.C. 1786(k)(2)(A) Tier 1 CMP for violations of law, regulation, and other orders or agreements $9,623. (10) 12 U.S.C. 1786(k)(2)(A) Tier 2 CMP for violations of law, regulation, and other orders or agreements and for recklessly engaging in unsafe or unsound practices or breaches of fiduciary duty $48,114. (11) 12 U.S.C. 1786(k)(2)(A) Tier 3 CMP for knowingly committing the violations under Tier 1 or 2 (natural person) For a person other than an insured credit union: $1,924,589; For an insured credit union: $1,924,589 or 1 percent of the total assets of the credit union, whichever is less. (12) 12 U.S.C. 1786(w)(5)(ii) Non-compliance with senior examiner post-employment restrictions $316,566. (13) 15 U.S.C. 1639e(k) Non-compliance with appraisal independence requirements First violation: $11,053. Subsequent violations: $22,105. (14) 42 U.S.C. 4012a(f)(5) Non-compliance with flood insurance requirements $2,090.

    (b) The adjusted amounts displayed in paragraph (a) of this section apply to civil monetary penalties that are assessed after the date the increase takes effect, including those whose associated violation or violations pre-dated the increase and occurred after November 2, 2015.

    [FR Doc. 2017-00473 Filed 1-19-17; 8:45 am] BILLING CODE 7535-01-P
    DEPARTMENT OF COMMERCE Bureau of Industry and Security 15 CFR Parts 730, 734, 736, 742, 744, and 745 [Docket No. 170103002-7002-01] RIN 0694-AH22 Updated Statements of Legal Authority for the Export Administration Regulations AGENCY:

    Bureau of Industry and Security, Commerce.

    ACTION:

    Final rule.

    SUMMARY:

    This rule updates the Code of Federal Regulations (CFR) legal authority citations in the Export Administration Regulations (EAR) to cite the most recent Presidential notice continuing an emergency declared pursuant to the International Emergency Economic Powers Act. This is a non-substantive rule that only updates authority paragraphs of the EAR. It does not alter any right, obligation or prohibition that applies to any person under the EAR.

    DATES:

    The rule is effective January 23, 2017.

    FOR FURTHER INFORMATION CONTACT:

    Nancy Kook, Regulatory Policy Division, Bureau of Industry and Security, Telephone: (202) 482-2440.

    SUPPLEMENTARY INFORMATION: Background

    The authority for parts 730, 734, 736, 742, 744, and 745 of the EAR rests, in part, on Executive Order 12938 of November 14, 1994—Proliferation of Weapons of Mass Destruction, 59 FR 59099, 3 CFR, 1994 Comp., p. 950 and on annual notices continuing the emergency declared in that executive order. This rule revises the authority citations for the affected parts of the EAR to cite the most recent such notice, which the President signed on November 8, 2016.

    This rule is purely non-substantive and makes no changes other than to revise CFR authority citations for the purpose of making the authority citations current. It does not change the text of any section of the EAR, nor does it alter any right, obligation or prohibition that applies to any person under the EAR.

    Rulemaking Requirements

    1. Executive Orders 13563 and 12866 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). This rule does not impose any regulatory burden on the public and is consistent with the goals of Executive Order 13563. This rule has been determined to be not significant for purposes of Executive Order 12866.

    2. Notwithstanding any other provision of law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) (PRA), unless that collection of information displays a currently valid Office of Management and Budget (OMB) Control Number. This rule does not involve any collection of information.

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

    4. The Department finds that there is good cause under 5 U.S.C. 553(b)(B) to waive the provisions of the Administrative Procedure Act requiring prior notice and the opportunity for public comment because they are unnecessary. This rule only updates legal authority citations. It clarifies information and is non-discretionary. This rule does not alter any right, obligation or prohibition that applies to any person under the EAR. Because these revisions are not substantive changes, it is unnecessary to provide notice and opportunity for public comment. In addition, the 30-day delay in effectiveness otherwise required by 5 U.S.C. 553(d) is not applicable because this rule is not a substantive rule. Because neither the Administrative Procedure Act nor any other law requires that notice of proposed rulemaking and an opportunity for public comment be given for this rule, the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) are not applicable. Accordingly, no Final Regulatory Flexibility Analysis is required and none has been prepared.

    List of Subjects 15 CFR Part 730

    Administrative practice and procedure, Advisory committees, Exports, Reporting and recordkeeping requirements, Strategic and critical materials.

    15 CFR Part 734

    Administrative practice and procedure, Exports, Inventions and patents, Research, Science and technology.

    15 CFR Part 736

    Exports.

    15 CFR Part 742

    Exports, Terrorism.

    15 CFR Part 744

    Exports, Reporting and recordkeeping requirements, Terrorism.

    15 CFR Part 745

    Administrative practice and procedure, Chemicals, Exports, Foreign trade, Reporting and recordkeeping requirements.

    Accordingly, parts 730, 734, 736, 742, 744, and 745 of the EAR (15 CFR parts 730 through 774) are amended as follows:

    PART 730—GENERAL INFORMATION 1. The authority citation for 15 CFR part 730 is revised to read as follows: Authority:

    50 U.S.C. 4601 et seq.; 50 U.S.C. 1701 et seq.; 10 U.S.C. 7420; 10 U.S.C. 7430(e); 22 U.S.C. 287c; 22 U.S.C. 2151 note; 22 U.S.C. 3201 et seq.; 22 U.S.C. 6004; 42 U.S.C. 2139a; 15 U.S.C. 1824a; 50 U.S.C. 4305; 22 U.S.C. 7201 et seq.; 22 U.S.C. 7210; E.O. 11912, 41 FR 15825, 3 CFR, 1976 Comp., p. 114; E.O. 12002, 42 FR 35623, 3 CFR, 1977 Comp., p. 133; E.O. 12058, 43 FR 20947, 3 CFR, 1978 Comp., p. 179; E.O. 12214, 45 FR 29783, 3 CFR, 1980 Comp., p. 256; E.O. 12851, 58 FR 33181, 3 CFR, 1993 Comp., p. 608; E.O. 12854, 58 FR 36587, 3 CFR, 1993 Comp., p. 179; E.O. 12918, 59 FR 28205, 3 CFR, 1994 Comp., p. 899; E.O. 12938, 59 FR 59099, 3 CFR, 1994 Comp., p. 950; E.O. 12947, 60 FR 5079, 3 CFR, 1995 Comp., p. 356; E.O. 12981, 60 FR 62981, 3 CFR, 1995 Comp., p. 419; E.O. 13020, 61 FR 54079, 3 CFR, 1996 Comp., p. 219; E.O. 13026, 61 FR 58767, 3 CFR, 1996 Comp., p. 228; E.O. 13099, 63 FR 45167, 3 CFR, 1998 Comp., p. 208; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; E.O. 13224, 66 FR 49079, 3 CFR, 2001 Comp., p. 786; E.O. 13338, 69 FR 26751, 3 CFR, 2004 Comp., p 168; E.O. 13637, 78 FR 16129, 3 CFR, 2014 Comp., p. 223; Notice of January 20, 2016, 81 FR 3937 (January 22, 2016); Notice of May 3, 2016, 81 FR 27293 (May 5, 2016); Notice of August 4, 2016, 81 FR 52587 (August 8, 2016); Notice of September 15, 2016, 81 FR 64343 (September 19, 2016); Notice of November 8, 2016, 81 FR 79379 (November 10, 2016).

    PART 734—SCOPE OF THE EXPORT ADMINISTRATION REGULATIONS 2. The authority citation for 15 CFR part 734 is revised to read as follows: Authority:

    50 U.S.C. 4601 et seq.; 50 U.S.C. 1701 et seq.; E.O. 12938, 59 FR 59099, 3 CFR, 1994 Comp., p. 950; E.O. 13020, 61 FR 54079, 3 CFR, 1996 Comp., p. 219; E.O. 13026, 61 FR 58767, 3 CFR, 1996 Comp., p. 228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; E.O. 13637, 78 FR 16129, 3 CFR, 2014 Comp., p. 223;; Notice of August 4, 2016, 81 FR 52587 (August 8, 2016); Notice of November 8, 2016, 81 FR 79379 (November 10, 2016).

    PART 736—GENERAL PROHIBITIONS 3. The authority citation for 15 CFR part 736 is revised to read as follows: Authority:

    50 U.S.C. 4601 et seq.; 50 U.S.C. 1701 et seq.; 22 U.S.C. 2151 note; E.O. 12938, 59 FR 59099, 3 CFR, 1994 Comp., p. 950; E.O. 13020, 61 FR 54079, 3 CFR, 1996 Comp., p. 219; E.O. 13026, 61 FR 58767, 3 CFR, 1996 Comp., p. 228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; E.O. 13338, 69 FR 26751, 3 CFR, 2004 Comp., p. 168; Notice of May 3, 2016, 81 FR 27293 (May 5, 2016); Notice of August 4, 2016, 81 FR 52587 (August 8, 2016); Notice of November 8, 2016, 81 FR 79379 (November 10, 2016).

    PART 742—CONTROL POLICY—CCL BASED CONTROLS 4. The authority citation for 15 CFR part 742 is revised to read as follows: Authority:

    50 U.S.C. 4601 et seq.; 50 U.S.C. 1701 et seq.; 22 U.S.C. 3201 et seq.; 42 U.S.C. 2139a; 22 U.S.C. 7201 et seq.; 22 U.S.C. 7210; Sec. 1503, Pub. L. 108-11, 117 Stat. 559; E.O. 12058, 43 FR 20947, 3 CFR, 1978 Comp., p. 179; E.O. 12851, 58 FR 33181, 3 CFR, 1993 Comp., p. 608; E.O. 12938, 59 FR 59099, 3 CFR, 1994 Comp., p. 950; E.O. 13026, 61 FR 58767, 3 CFR, 1996 Comp., p. 228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; Presidential Determination 2003-23, 68 FR 26459, 3 CFR, 2004 Comp., p. 320; Notice of August 4, 2016, 81 FR 52587 (August 8, 2016); Notice of November 8, 2016, 81 FR 79379 (November 10, 2016).

    PART 744—CONTROL POLICY: END-USER AND END-USE BASED 5. The authority citation for 15 CFR part 744 is revised to read as follows: Authority:

    50 U.S.C. 4601 et seq.; 50 U.S.C. 1701 et seq.; 22 U.S.C. 3201 et seq.; 42 U.S.C. 2139a; 22 U.S.C. 7201 et seq.; 22 U.S.C. 7210; E.O. 12058, 43 FR 20947, 3 CFR, 1978 Comp., p. 179; E.O. 12851, 58 FR 33181, 3 CFR, 1993 Comp., p. 608; E.O. 12938, 59 FR 59099, 3 CFR, 1994 Comp., p. 950; E.O. 12947, 60 FR 5079, 3 CFR, 1995 Comp., p. 356; E.O. 13026, 61 FR 58767, 3 CFR, 1996 Comp., p. 228; E.O. 13099, 63 FR 45167, 3 CFR, 1998 Comp., p. 208; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; E.O. 13224, 66 FR 49079, 3 CFR, 2001 Comp., p. 786; Notice of January 20, 2016, 81 FR 3937 (January 22, 2016); Notice of August 4, 2016, 81 FR 52587 (August 8, 2016); Notice of September 15, 2016, 81 FR 64343 (September 19, 2016); Notice of November 8, 2016, 81 FR 79379 (November 10, 2016).

    PART 745—CHEMICAL WEAPONS CONVENTION REQUIREMENTS 6. The authority citation for 15 CFR part 745 is revised to read as follows: Authority:

    50 U.S.C. 1701 et seq.; E.O. 12938, 59 FR 59099, 3 CFR, 1994 Comp., p. 950); Notice of November 8, 2016, 81 FR 79379 (November 10, 2016).

    Dated: January 6, 2017. Kevin J. Wolf, Assistant Secretary for Export Administration.
    [FR Doc. 2017-00443 Filed 1-19-17; 8:45 am] BILLING CODE 3510-33-P
    COMMODITY FUTURES TRADING COMMISSION 17 CFR Part 143 RIN 3038-AE51 Annual Adjustment of Civil Monetary Penalties for Inflation—2017 AGENCY:

    Commodity Futures Trading Commission.

    ACTION:

    Interim final rule.

    SUMMARY:

    The Commodity Futures Trading Commission (Commission) is amending its rule that governs the maximum amount of civil monetary penalties, to adjust for inflation. This rule sets forth the maximum, inflation-adjusted dollar amount for civil monetary penalties (CMPs) assessable for violations of the Commodity Exchange Act (CEA) and Commission rules, regulations and orders thereunder. The rule, as amended, implements the Federal Civil Penalties Inflation Adjustment Act of 1990, as amended.

    DATES:

    Effective Date: This interim final rule is effective January 23, 2017.

    FOR FURTHER INFORMATION CONTACT:

    Edward J. Riccobene, Associate Chief Counsel, Division of Enforcement, at (202) 418-5327 or [email protected], Commodity Futures Trading Commission, 1155 21st Street NW., Washington, DC 20581.

    SUPPLEMENTARY INFORMATION:

    I. Background

    The Federal Civil Penalties Inflation Adjustment Act of 1990 (FCPIAA) 1 requires the head of each Federal agency to periodically adjust for inflation the minimum and maximum amount of CMPs provided by law within the jurisdiction of that agency.2 A 2015 amendment to the FCPIAA 3 required agencies to make an initial “catch-up” adjustment to its civil monetary penalties effective no later than August 1, 2016.4 For every year thereafter effective not later than January 15, the FCPIAA, as amended, requires agencies to make annual adjustments for inflation, with guidance from the Director of the Office of Management and Budget.5

    1 The FCPIAA, Public Law 101-410 (1990), as amended, is codified at 28 U.S.C. 2461 note. The FCPIAA states that the purpose of the act is to establish a mechanism that (1) allows for regular adjustment for inflation of civil monetary penalties; (2) maintains the deterrent effect of civil monetary penalties and promote compliance with the law; and (3) improves the collection by the Federal Government of civil monetary penalties.

    2 For the relevant CMPs within the Commission's jurisdiction, the Act provides only for maximum amounts that can be assessed for each violation of the Act or the rules, regulations and orders promulgated thereunder; the Act does not set forth any minimum penalties. Therefore, the remainder of this release will refer only to CMP maximums.

    3 Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, 2015 Act, Public Law 114-74, 129 Stat. 584 (2015), title VII, Section 701.

    4 FCPIAA Sections 4 and 5. See also, Adjustment of Civil Monetary Penalties for Inflation, 81 FR 41435 (June 27, 2016) (to be codified at 17 CFR 143.8).

    5 FCPIAA Sections 4 and 5. See also, Executive Office of the President, Office of Management and Budget Memorandum, M-17-11, Implementation of the 2017 annual adjustment pursuant to the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (Dec. 16, 2016) available at https://www.whitehouse.gov/sites/default/files/omb/memoranda/2017/m-17-11_0.pdf.

    II. Commodity Exchange Act Civil Monetary Penalties

    The CEA provides for CMPs that meet the FCPIAA definition 6 and these CMPs are, therefore, subject to the inflation adjustment in the following instances: Sections 6(c), 6(d), 6b, and 6c of the CEA.7

    6 FCPIAA Section 3(2).

    7 7 U.S.C. 9, 13a, 13a-1, 13b.

    Section 6(c) of the CEA,8 as adjusted by the FCPIAA,9 currently sets the maximum CMP that may be imposed by the Commission, in a proceeding initiated on or after August 1, 2016, on “any person (other than a registered entity)” for: (1) Each violation of Section 6(c) of the CEA or any other provisions of the Act or of the rules, regulations, or orders of the Commission thereunder to the greater of $152,243 or triple the monetary gain to the violator; and (2) any manipulation or attempted manipulation in violation of Section 6(c) or 9(a)(2) of the CEA to the greater of $1,098,190 or triple the monetary gain to the violator.

    8 7 U.S.C. 9.

    9 See 17 CFR 143.8(a)(1)(ii).

    Section 6(d) of the CEA,10 as adjusted by the FCPIAA,11 currently sets the maximum CMP that may be imposed by the Commission, in a proceeding initiated on or after August 1, 2016, on “any person (other than a registered entity)” 12 for violations of the CEA or any other provisions of the CEA or of the rules, regulations, or orders of the Commission thereunder to the greater of $152,243 or triple the monetary gain to the violator.

    10 7 U.S.C. 13b.

    11 See 17 CFR 143.8(a)(2)(ii).

    12 The term “registered entity” is a defined term under the CEA. Section 1a(40) provides that the term “registered entity” means (A) a board of trade designated as a contract market under section 7 of the act; (B) a derivatives clearing organization registered under section 7a-1 of this act; (C) a board of trade designated as a contract market under section 7b-1 of the act; (D) a swap execution facility registered under section 7b-3 of this title; (E) a swap data repository registered under section 24a of the act; and (F) with respect to a contract that the Commission determines is a significant price discovery contract, any electronic trading facility on which the contract is executed or traded. 7 U.S.C. 1a(40).

    Section 6b of the CEA 13 provides that the Commission, in an administrative proceeding, may impose a CMP on: (1) Any registered entity for not enforcing or has not enforced its rules of government made a condition of its designation or registration as set forth in the CEA, or (2) any registered entity, or any director, officer, agent, or employee of any registered entity, for violations of the CEA or any rules, regulations, or orders of the Commission thereunder. In actions initiated on or after August 1, 2016, for each violation for which a CMP is assessed pursuant to Section 6b, the current, FCPIAA-adjusted maximum penalty is set at: The greater of $1,098,190 or triple the monetary gain to such person for manipulation or attempted manipulation in violation of Section 6(c), 6(d), or 9(a)(2) of the CEA; and the greater of $838,640 or triple the monetary gain to such person for all other violations.14

    13 7 U.S.C. 13a.

    14 17 CFR 143.8(a)(3)(ii).

    Section 6c of the CEA 15 provides that Commission may bring an action in the proper district court of the United States or the proper United States court of any territory or other place subject to the jurisdiction of the United States and the court may impose on a CMP on “any registered entity or other person” found by the court to have committed any violation of any provision of the CEA or any rule, regulation, or order thereunder, or is restraining trading in any commodity for future delivery or any swap. In actions initiated on or after August 1, 2016, for each violation for which a CMP is assessed pursuant to Section 6c(d), the current, FCPIAA-adjusted maximum penalty is set at: The greater of $1,098,190 or triple the monetary gain to such person for manipulation or attempted manipulation in violation of Section 6(c), 6(d), or 9(a)(2) of the CEA; and the greater of $167,728 or triple the monetary gain to such person for all other violations.16

    15 7 U.S.C. 13a-1.

    16 17 CFR 143.8(a)(4)(ii).

    III. Annual Inflation Adjustment for Commodity Exchange Act Civil Monetary Penalties A. Methodology

    The annual inflation adjustment under the FCPIAA, in the context of the CFTC's CMPs, is determined by increasing the maximum penalty by a “cost-of-living adjustment,” rounded to the nearest multiple of one dollar.17 Annual inflation adjustments are based on the percent change between the October Consumer Price Index for all Urban Consumers (CPI-U) preceding the date of the adjustment, and the prior year's October CPI-U.18 In this case, October 2016 CPI-U (241.729)/October 2015 CPI-U (237.838) = 1.01636.19 In order to complete the 2017 annual adjustment, the CFTC must multiply each of its most recent CMP amounts by the multiplier, 1.01636, and round to the nearest dollar.

    17 FCPIAA Sections 4 and 5.

    18 FCPIAA Section 5(b)(1).

    19 The CPI-U is published by the Department of Labor. Interested parties may find the relevant Consumer Price Index on the Internet. To access this information, go to the Consumer Price Index Home Page at: http://www.bls.gov/cpi/. Under the “CPI Databases” heading, select “All Urban Consumers (Current Series)”, “Top Picks.” Then check the box for “U.S. All items, 1982-84 = 100−CUUR0000SA0”, and click the “Retrieve data” button.

    B. Civil Monetary Penalty Adjustments

    Applying the FCPIAA annual inflation adjustment methodology results in the following amended CMPs:

    Citation Description Current
  • inflation
  • adjusted
  • CMP amount
  • 2017 Annual
  • inflation
  • adjusted
  • CMP amount
  • Section 6(c) of the CEA, 7 U.S.C. 9 Prohibition Regarding Manipulation and False Information [Other Violation (Non-Manipulation)] $152,243 $154,734 Section 6(c) of the CEA, 7 U.S.C. 9 Prohibition Regarding Manipulation and False Information [Manipulation or Attempted Manipulation] 1,098,190 1,116,156 Section 6(d) of the CEA, 7 U.S.C. 13b Manipulations or Other Violations; Cease and Desist Orders Against Persons Other Than Registered Entities; Punishment; Misdemeanor or Felony; Separate Offenses 152,243 154,734 Section 6b of the CEA, 7 U.S.C. 13a Nonenforcement of Rules of Government or Other Violations; Cease and Desist Orders; Fines and Penalties; Imprisonment; Misdemeanor; Separate Offenses [Other Violation (Non-Manipulation)] 838,640 852,360 Section 6b of the CEA, 7 U.S.C. 13a Nonenforcement of Rules of Government or Other Violations; Cease and Desist Orders; Fines and Penalties; Imprisonment; Misdemeanor; Separate Offenses [Manipulation or Attempted Manipulation] 1,098,190 1,116,156 Section 6c of the CEA, 7 U.S.C. 13a-1 Enjoining or Restraining Violations [Other Violation (Non-Manipulation)] 167,728 170,472 Section 6c of the CEA, 7 U.S.C. 13a-1 Enjoining or Restraining Violations [Manipulation or Attempted Manipulation] 1,098,190 1,116,156

    The FCPIAA provides that any increase under [the FCPIAA] in a civil monetary penalty shall apply only to civil monetary penalties, including those whose associated violation predated such increase, which are assessed after the date the increase takes effect.20 Thus, the new CMP amounts established by this rulemaking may be applied only in Commission administrative or civil injunctive enforcement proceedings that are initiated on or after the effective date of this amendment, January 15, 2017.

    20 FCPIAA Section 6.

    IV. Administrative Compliance A. Notice Requirement

    The notice and comment procedures of 5 U.S.C. 553 do not apply to this rulemaking because the Commission is acting herein pursuant to statutory language which mandates that the Commission act in a nondiscretionary matter. Lake Carriers' Ass'n v. E.P.A., 652 F.3d 1, 10 (D.C. Cir. 2011).21

    21 The Commission has determined that the amendment to rule 143.8 is exempt from the provisions of the Administrative Procedure Act, 5 U.S.C. 553, which generally require notice of proposed rulemaking and provide other opportunities for public participation, but excludes rules of agency practice, such as those found in part 143 of the Commission's regulations, and in particular rule 143.8 being revised herein.

    B. Regulatory Flexibility Act

    The Regulatory Flexibility Act 22 requires agencies with rulemaking authority to consider the impact of certain of their rules on small businesses. A regulatory flexibility analysis is only required for rules for which the agency publishes a general notice of proposed rulemaking pursuant to section 553(b) or any other law. Because the Commission is not obligated by section 553(b) or any other law to publish a general notice of proposed rulemaking with respect to the revisions being made to regulation 143.8, the Commission additionally is not obligated to conduct a regulatory flexibility analysis.

    22 5 U.S.C. 601-612.

    C. Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (PRA),23 which imposes certain requirements on Federal agencies, including the Commission, in connection with their conducting or sponsoring any collection of information as defined by the PRA, does not apply to this rule. This rule amendment does not contain information collection requirements that require the approval of the Office of Management and Budget.

    23 44 U.S.C. 3507(d).

    D. Consideration of Costs and Benefits

    Section 15(a) of the CEA 24 requires the Commission to consider the costs and benefits of its action before issuing a new regulation. Section 15(a) further specifies that 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.

    24 7 U.S.C. 19(a).

    The Commission believes that benefits of this rulemaking greatly outweigh the costs, if any. As the Commission understands, the statutory provisions by which it is making cost-of-living adjustments to the CMPs in regulation 143.8 were enacted to ensure that CMPs do not lose their deterrence value because of inflation. An analysis of the costs and benefits of these adjustments were made before enactment of the statutory provisions under which the Commission is operating, and limit the discretion of the Commission to the extent that there are no regulatory choices the Commission could make that would supersede the pre-enactment analysis with respect to the five factors enumerated in section 15(a), or any other factors.

    List of Subjects in 17 CFR Part 143

    Civil monetary penalties, Claims.

    For the reasons stated in the preamble, the Commodity Futures Trading Commission amends part 17 CFR part 143 as follows:

    PART 143—COLLECTION OF CLAIMS OWED THE UNITED STATES ARISING FROM ACTIVITIES UNDER THE COMMISSION'S JURISDICTION 1. The authority citation for part 143 continues to read as follows: Authority:

    7 U.S.C. 9, 15, 9a, 12a(5), 13a, 13a-1(d), 13(a), 13b; 31 U.S.C. 3701-3720E; 28 U.S.C. 2461 note.

    2. Amend § 143.8 as follows: a. Revise paragraphs (a)(1)(ii) introductory text, (a)(2)(ii), (a)(3)(ii) introductory text, and (a)(4)(ii) introductory text; and b. Add paragraphs (a)(1)(iii), (a)(2)(iii), (a)(3)(iii), and (a)(4)(iii).

    The revisions and additions read as follows:

    § 143.8 Inflation-adjusted civil monetary penalties.

    (a) * * *

    (1) * * *

    (ii) In an administrative proceeding before the Commission or a civil action in Federal court initiated on August 1, 2016 through January 14, 2017:

    (iii) In an administrative proceeding before the Commission or a civil action in Federal court initiated on or after January 15, 2017:

    (A) For manipulation or attempted manipulation violations, not more than the greater of $1,116,156 or triple the monetary gain to such person for each such violation; and

    (B) For all other violations, not more than the greater of $154,734 or triple the monetary gain to such person for each such violation; and

    (2) * * *

    (ii) In an administrative proceeding before the Commission or a civil action in Federal court initiated on August 1, 2016 through January 14, 2017, not more than the greater of $152,243 or triple the monetary gain to such person for each such violation;

    (iii) In an administrative proceeding before the Commission or a civil action in Federal court initiated on or after January 15, 2017, not more than the greater of $154,734 or triple the monetary gain to such person for each such violation; and

    (3) * * *

    (ii) In an administrative proceeding before the Commission or a civil action in Federal court initiated on August 1, 2016 through January 14, 2017:

    (iii) In an administrative proceeding before the Commission or a civil action in Federal court initiated on or after January 15, 2017:

    (A) For manipulation or attempted manipulation violations, not more than the greater of $1,116,156 or triple the monetary gain to such person for each such violation; and

    (B) For all other violations, not more than the greater of $852,360 or triple the monetary gain to such person for each such violation; and

    (4) * * *

    (ii) In an administrative proceeding before the Commission or a civil action in Federal court initiated on August 1, 2016 through January 14, 2017:

    (iii) In an administrative proceeding before the Commission or a civil action in Federal court initiated on or after January 15, 2017:

    (A) For manipulation or attempted manipulation violations, not more than the greater of $1,116,156 or triple the monetary gain to such person for each such violation; and

    (B) For all other violations, not more than the greater of $170,472 or triple the monetary gain to such person for each such violation.

    Issued in Washington, DC, on January 6, 2017, by the Commission. Robert N. Sidman, Deputy Secretary of the Commission. Note:

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

    Appendix to Adjustment of Civil Monetary Penalties for Inflation—2017—Commission Voting Summary

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

    [FR Doc. 2017-00488 Filed 1-19-17; 8:45 am] BILLING CODE 6351-01-P
    SECURITIES AND EXCHANGE COMMISSION 17 CFR Part 232 [Release Nos. 33-10265; 34-79519; 39-2513; IC-32387] Adoption of Updated EDGAR Filer Manual AGENCY:

    Securities and Exchange Commission.

    ACTION:

    Final rule.

    SUMMARY:

    The Securities and Exchange Commission (the Commission) is adopting revisions to the Electronic Data Gathering, Analysis, and Retrieval System (EDGAR) Filer Manual and related rules to reflect updates to the EDGAR system. The updates are being made primarily to support the submission of Municipal Advisor submission form types. The EDGAR system is scheduled to be upgraded to support the other functionalities on December 12, 2016.

    DATES:

    Effective January 23, 2017. The incorporation by reference of the EDGAR Filer Manual is approved by the Director of the Federal Register as of January 23, 2017.

    FOR FURTHER INFORMATION CONTACT:

    In the Division of Corporation Finance, for questions concerning Form ABS-EE and Regulation A submission form types, contact Vik Sheth at (202) 551-3818; in the Division of Trading and Markets, for questions concerning Form MA and Form 17-H, contact Kathy Bateman at (202) 551-4345; and in the Division of Economic and Risk Analysis, for questions concerning eXtensible Business Reporting Language (XBRL) submissions; contact Walter Hamscher at (202) 551-5397.

    SUPPLEMENTARY INFORMATION:

    We are adopting an updated EDGAR Filer Manual, Volume I and Volume II. The Filer Manual describes the technical formatting requirements for the preparation and submission of electronic filings through the EDGAR system.1 It also describes the requirements for filing using EDGARLink Online and the Online Forms/XML Web site.

    1 We originally adopted the Filer Manual on April 1, 1993, with an effective date of April 26, 1993. Release No. 33-6986 (April 1, 1993) [58 FR 18638]. We implemented the most recent update to the Filer Manual on September 19, 2016. See Release No. 33-10217 (September 30, 2016) [81 FR 67118].

    The revisions to the Filer Manual reflect changes within Volume I entitled EDGAR Filer Manual, Volume I: “General Information,” Version 25 (December 2016), and Volume II entitled EDGAR Filer Manual, Volume II: “EDGAR Filing,” Version 39 (December 2016). The updated manual will be incorporated by reference into the Code of Federal Regulations.

    The Filer Manual contains all the technical specifications for filers to submit filings using the EDGAR system. Filers must comply with the applicable provisions of the Filer Manual in order to assure the timely acceptance and processing of filings made in electronic format.2 Filers may consult the Filer Manual in conjunction with our rules governing mandated electronic filing when preparing documents for electronic submission.3

    2See Rule 301 of Regulation S-T (17 CFR 232.301).

    3See Release No. 33-10217 in which we implemented EDGAR Release 16.3. For additional history of Filer Manual rules, please see the citations therein.

    The EDGAR system will be upgraded to Release 16.4 on December 12, 2016 and will introduce the following changes:

    Filers will be able to submit the Municipal Advisor submission form types MA, MA-A, MA/A, MA-I, MA-I/A, and MA-W in filer-constructed XML format from the EDGAR Filing Web site. For more information, see the “EDGAR Form MA XML Technical Specification” document available on the SEC's Public Web site (https://www.sec.gov/info/edgar/tech-specs).

    Filers will be able to provide up to 200 owners instead of 50 owners for Schedules A-1, A-2, B-1, and B-2 within MA, MA-A, and MA/A submissions (Schedules A-1, A-2, B-1, and B-2 are amended via Schedule C for MA-A and MA/A submissions).

    EDGAR will be upgraded to allow an entity with any Standard Industrial Classification (SIC) code value or no value (NULL) to request the creation of ABS Issuing Entities.

    EDGAR will be updated to allow duplicate submissions for ABS-EE.

    EDGARLink Online will be updated for ABS-EE and ABS-EE/A submissions such that non-existent CIKs will be flagged as errors during header data entry instead of after the submission has been sent and processed by EDGAR.

    The ABS-EE Asset Data schema will be updated to introduce the following Asset Class Item with date format MM/YYYY:

    • RMBS ABS Asset Class: Item 1(c)(13)(vi), Most Senior Lien Origination Date

    In addition, the ABS-EE Asset Data schema will be updated to change the following Asset Class Item from an integer value to a percentage value:

    • CMBS ABS Asset Class: Item 2(c)(28)(iv), ARM Margin Number

    For more information, see the updated “EDGAR ABS XML Technical Specification” document located on the SEC's Public Web site (https://www.sec.gov/info/edgar/tech-specs).

    EDGAR will transform word expressions for numbers, dates, and word or symbol expressions for QNames and nil expressions into their respective XML representations in Inline XBRL submissions. Filers will be able to provide typed dimensions in XBRL submissions. In addition, the following HTML tags will be usable in traditional XBRL documents: <SPAN>, <TBODY>, <TFOOT>, and <THEAD>.

    All ASCII character validations will be removed for broker-dealer entity name fields on submission form types 17HACON, 17HACON/A, 17HQCON, and 17HQCON/A. Broker-dealers now will be able to submit the aforementioned filings, irrespective of the ASCII characters in the broker-dealer entity name.

    Filers will be able to shift the order of the uploaded documents, and simultaneously select/de-select all uploaded documents on the “Attach Documents List” screen for the Regulation A submission form types DOS, DOS/A, 1-A, 1-A/A, 1-A POS, 1-K, and 1-K/A.

    On October 31, 2016, the EDGAR system was upgraded to Release 16.3.3 and now supports the following changes:

    The ABS-EE CMBS Asset Class Item 2(e)(17), “Payment Status Loan Code” associated types were updated to include the value “0” for loan payment status of “Current”. For more information, see section 4.3.20 of the updated “EDGAR ABS XML Technical Specification” document located on the SEC's Public Web site (https://www.sec.gov/info/edgar/tech-specs).

    The maximum allowable submission size for form types ABS-EE and ABS-EE/A was increased to 600 MB.

    EDGAR was updated to remove the timeliness rule check, and to no longer verify if the submission form types NT 10-K, NTN 10K, NT 10-Q, NTN 10Q, NT 15D2, NTN15D2, NT 10-D, NTN 10D, NT 20-F, and NTN 20F were submitted before the filing deadline.

    Along with the adoption of the Filer Manual, we are amending Rule 301 of Regulation S-T to provide for the incorporation by reference into the Code of Federal Regulations of today's revisions. This incorporation by reference was approved by the Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51.

    The updated EDGAR Filer Manual will be available for Web site viewing and printing; the address for the Filer Manual is https://www.sec.gov/info/edgar/edmanuals.htm. You may also obtain paper copies of the EDGAR Filer Manual from the following address: Public Reference Room, U.S. Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549, on official business days between the hours of 10:00 a.m. and 3:00 p.m.

    Since the Filer Manual and the corresponding rule changes relate solely to agency procedures or practice, publication for notice and comment is not required under the Administrative Procedure Act (APA).4 It follows that the requirements of the Regulatory Flexibility Act 5 do not apply.

    4 5 U.S.C. 553(b)(A).

    5 5 U.S.C. 601-612.

    The effective date for the updated Filer Manual and the rule amendments is January 23, 2017. In accordance with the APA,6 we find that there is good cause to establish an effective date less than 30 days after publication of these rules. The EDGAR system upgrade to Release 16.4 is scheduled to become available on December 12, 2016. The Commission believes that establishing an effective date less than 30 days after publication of these rules is necessary to coordinate the effectiveness of the updated Filer Manual with these system upgrades.

    6 5 U.S.C. 553(d)(3).

    Statutory Basis

    We are adopting the amendments to Regulation S-T under Sections 6, 7, 8, 10, and 19(a) of the Securities Act of 1933,7 Sections 3, 12, 13, 14, 15, 23, and 35A of the Securities Exchange Act of 1934,8 Section 319 of the Trust Indenture Act of 1939,9 and Sections 8, 30, 31, and 38 of the Investment Company Act of 1940.10

    7 15 U.S.C. 77f, 77g, 77h, 77j, and 77s(a).

    8 15 U.S.C. 78c, 78l, 78m, 78n, 78o, 78w, and 78ll.

    9 15 U.S.C. 77sss.

    10 15 U.S.C. 80a-8, 80a-29, 80a-30, and 80a-37.

    List of Subjects in 17 CFR Part 232

    Incorporation by reference, Reporting and recordkeeping requirements, Securities.

    Text of the Amendment

    In accordance with the foregoing, Title 17, Chapter II of the Code of Federal Regulations is amended as follows:

    PART 232—REGULATION S-T—GENERAL RULES AND REGULATIONS FOR ELECTRONIC FILINGS 1. The authority citation for Part 232 continues to read in part as follows: Authority:

    15 U.S.C. 77f, 77g, 77h, 77j, 77s(a), 77z-3, 77sss(a), 78c(b), 78l, 78m, 78n, 78o(d), 78w(a), 78ll, 80a-6(c), 80a-8, 80a-29, 80a-30, 80a-37, and 7201 et seq.; and 18 U.S.C. 1350.

    2. Section 232.301 is revised to read as follows:
    § 232.301 EDGAR Filer Manual.

    Filers must prepare electronic filings in the manner prescribed by the EDGAR Filer Manual, promulgated by the Commission, which sets out the technical formatting requirements for electronic submissions. The requirements for becoming an EDGAR Filer and updating company data are set forth in the updated EDGAR Filer Manual, Volume I: “General Information,” Version 25 (December 2016). The requirements for filing on EDGAR are set forth in the updated EDGAR Filer Manual, Volume II: “EDGAR Filing,” Version 39 (December 2016). Additional provisions applicable to Form N-SAR filers are set forth in the EDGAR Filer Manual, Volume III: “N-SAR Supplement,” Version 5 (September 2015). All of these provisions have been incorporated by reference into the Code of Federal Regulations, which action was approved by the Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. You must comply with these requirements in order for documents to be timely received and accepted. The EDGAR Filer Manual is available for Web site viewing and printing; the address for the Filer Manual is https://www.sec.gov/info/edgar/edmanuals.htm. You can obtain paper copies of the EDGAR Filer Manual from the following address: Public Reference Room, U.S. Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549, on official business days between the hours of 10:00 a.m. and 3:00 p.m. You can also inspect the document 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/code_of_federal_regulations/ibr_locations.html.

    By the Commission.

    Dated: December 9, 2016. Brent J. Fields, Secretary.
    [FR Doc. 2016-32032 Filed 1-19-17; 8:45 am] BILLING CODE 8011-01-P
    DELAWARE RIVER BASIN COMMISSION 18 CFR Part 401 Regulatory Program Fees; Correction AGENCY:

    Delaware River Basin Commission.

    ACTION:

    Correcting amendments.

    SUMMARY:

    The Delaware River Basin Commission published a document in the Federal Register on December 29, 2016 (81 FR 95860), in relevant part amending the Rules of Practice and Procedure. The document failed to include rule text approved by the Commission relating to the annual monitoring and coordination fee. This document corrects the final regulations by incorporating the approved language. In addition, this document corrects the preamble to clarify that in adopting the final rule, the Commission acted by Resolution No. 2016-9, not 2016-8.

    DATES:

    This final rule is effective January 23, 2017.

    FOR FURTHER INFORMATION CONTACT:

    Pamela M. Bush, Commission Secretary and Assistant General Counsel, 609-477-7203.

    SUPPLEMENTARY INFORMATION:

    Background. When the Commission adopted Resolution No. 2016-9, in relevant part approving amendments to the Rules of Practice and Procedure (18 CFR part 401) concerning regulatory program fees, it approved rule language to expressly exclude from the calculation of the annual monitoring and coordination fee all water for which an entitlement issued pursuant to the Basin Regulations—Water Supply Charges (18 CFR part 420) is in effect. Final rule documents posted on the Commission's Web site included the approved language, but the language was inadvertently omitted from DRBC's Federal Register submission and thus from the CFR.

    In addition, the preamble to the final rule published in the Federal Register incorrectly referred to the Commission's rule adoption resolution as number 2016-8, when the resolution was number 2016-9.

    Corrections

    Preamble Correction. In final rule FR Doc. 2016-31146, beginning on page 95860 in the issue of December 29, 2016, “2016-8” is corrected to read “2016-9” in the following locations in the Supplementary Information section: On page 95860 in the second column (first line of the last paragraph) and third column (sixth line from the bottom); and on page 95861 in the first column (first line).

    Rule Correction. As published, the final regulations omit language adopted by the Commission in response to comments received. The regulations are thus incorrect and in need of amendment, as set forth below.

    List of Subjects in 18 CFR Part 401

    Administrative practice and procedure, Project review, Water pollution control, Water resources.

    Accordingly, 18 CFR part 401 is corrected by the following correcting amendments:

    PART 401—RULES OF PRACTICE AND PROCEDURE 1. The authority citation for part 401 continues to read as follows: Authority:

    Delaware River Basin Compact (75 Stat. 688), unless otherwise noted.

    Subpart C—Project Review Under Section 3.8 of the Compact 2. In § 401.43, revise paragraph (b)(2) to read as follows:
    § 401.43 Regulatory program fees.

    (b) * * *

    (2) Annual monitoring and coordination fee. (i) Except as provided in paragraph (b)(2)(ii) of this section, an annual monitoring and coordination fee shall apply to each active water allocation or wastewater discharge approval issued pursuant to the Compact and implementing regulations, regardless of whether the approval was issued by the Commission in the form of a docket, permit or other instrument, or by a Signatory Party Agency under the One Permit Program rule (§ 401.42). The fee shall be based on the amount of a project's approved monthly water allocation and/or approved daily discharge capacity.

    (ii) For any withdrawal or diversion covered in part by a certificate of entitlement issued pursuant to §§ 420.31 and 420.32 of the water supply charges regulations (18 CFR part 420), the annual monitoring and coordination fee shall be based on the allocated amount, if any, in excess of the quantity specified in the entitlement.

    Dated: January 5, 2017. Pamela M. Bush, Commission Secretary.
    [FR Doc. 2017-00413 Filed 1-19-17; 8:45 am] BILLING CODE 6360-01-P
    SOCIAL SECURITY ADMINISTRATION 20 CFR Part 404 [Docket No. SSA-2014-0016] RIN 0960-AH66 Unsuccessful Work Attempts and Expedited Reinstatement Eligibility; Correction AGENCY:

    Social Security Administration.

    ACTION:

    Final rules; correction.

    SUMMARY:

    We published a document in the Federal Register revising our rules on October 17, 2016. That document inadvertently omitted a corresponding technical change to § 404.1592f(a) when § 404.1592c(a) was amended with the final rule publication. By making this technical correction we will also need to redesignate the amendatory instructions to incorporate the missing section changes to § 404.1592f(a). This document corrects the final regulation by making these technical corrections.

    DATES:

    The corrections are effective April 17, 2017.

    FOR FURTHER INFORMATION CONTACT:

    Kristine Erwin-Tribbitt, Office of Retirement and Disability Policy, Office of Research, Demonstration, and Employment Support, Social Security Administration, 6401 Security Boulevard, Robert Ball Building 3-A-26, Baltimore, MD 21235-6401, (410) 965-3353. For information on eligibility or filing for benefits, call our national toll-free number, 1-800-772-1213 or TTY 1-800-325-0778, or visit our Internet site, Social Security Online, at http://www.socialsecurity.gov.

    SUPPLEMENTARY INFORMATION:

    We published a final rule in the Federal Register of October 17, 2016 (81 FR 71367) titled, Unsuccessful Work Attempts and Expedited Reinstatement Eligibility. The final rule, among other things, amended 20 CFR parts 404 and 416. We inadvertently omitted a corresponding technical change to § 404.1592f(a) when § 404.1592c(a) was amended with the final rule publication. This document amends and corrects the final regulation.

    (Catalog of Federal Domestic Assistance Program Nos. 9601, Social Security—Disability Insurance; 96.006, Supplemental Security Income; 96.008, Social Security—Work Incentives Planning and Assistance Program.)

    In FR Doc. 2016-24873 appearing on page 71369 in the Federal Register of Monday, October 17, the following corrections are made:

    Corrections

    1. On page 71369, in the third column, redesignate amendatory instructions 6 through 9 as 7 through 10 and add new amendatory instruction 6 to read as follows:

    6. Amend § 404.1592f by revising paragraph (a) to read as follows:
    § 404.1592f How do we determine reinstated benefits?

    (a) If you meet the requirements for reinstatement under § 404.1592c(a), we will then consider in which month to reinstate your entitlement. We will reinstate your entitlement with the earliest month, in the 12-month period that ends with the month before you filed your request for reinstatement, that you would have met all of the requirements under § 404.1592c(a) if you had filed your request for reinstatement in that month. Otherwise, you will be entitled to reinstated benefits beginning with the month in which you filed your request for such benefits if you did not perform substantial gainful activity in that month. If you performed substantial gainful activity in the month of filing, but are no longer able to perform substantial gainful activity, we will reinstate your benefits with the month after the month you filed your request for reinstatement. We cannot reinstate your entitlement for any month prior to January 2001.

    Carolyn W. Colvin, Acting Commissioner of Social Security.
    [FR Doc. 2017-00076 Filed 1-19-17; 8:45 am] BILLING CODE 4191-02-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration 21 CFR Parts 73 and 74 [Docket No. FDA-2016-F-0821] Listing of Color Additives Exempt From Certification; Titanium Dioxide and Listing of Color Additives Subject to Certification; [Phthalocyaninato (2-)] Copper; Confirmation of Effective Date AGENCY:

    Food and Drug Administration, HHS.

    ACTION:

    Final rule; confirmation of effective date.

    SUMMARY:

    The Food and Drug Administration (FDA or we) is confirming the effective date of December 2, 2016, for the final rule that appeared in the Federal Register of November 1, 2016, and that amended the color additive regulations to provide for the safe use of titanium dioxide and [phthalocyaninato (2-)] copper to color orientation marks for intraocular lenses (IOLs). We are taking this action to ensure clarity that the effective date in the final rule remains December 2, 2016.

    DATES:

    Effective date of final rule published in the Federal Register of November 1, 2016 (81 FR 75689), confirmed: December 2, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Laura A. Dye, Center for Food Safety and Applied Nutrition (HFS-265), Food and Drug Administration, 5001 Campus Dr., College Park, MD 20740-3835, 240-402-1275.

    SUPPLEMENTARY INFORMATION:

    In the Federal Register of November 1, 2016 (81 FR 75689), we amended the color additive regulations in § 73.3126 (21 CFR 73.3126) and § 74.3045 (21 CFR 74.3045) to provide for the safe use of titanium dioxide and [phthalocyaninato (2-)] copper to color orientation marks for IOLs.

    The preamble to the final rule stated that persons who would be adversely affected by one or more provisions in the final rule could file electronic or written objections (81 FR 75689 at 75691). We also stated that the effective date of the final rule would be on December 2, 2016, unless a person properly files an objection or request for a hearing to review any provisions in the final rule (81 FR 75689). We explained that, to file an objection, a person must, among other things, specify with particularity the provision(s) of the regulation to which they object and the grounds for the objection (81 FR 75689 at 75691). Within each objection, a person also must specifically state whether he/she requests a hearing. We received no objections or requests for a hearing on the final rule that met these requirements. We received five general comments, including one that disagreed with the rule, but the comments did not meet the requirements to be considered an objection under 21 CFR 12.22(a)(3). Therefore, we find that the effective date of the final rule that published in the Federal Register of November 1, 2016, should be confirmed.

    List of Subjects 21 CFR Part 73

    Color additives, Cosmetics, Drugs, Medical devices.

    21 CFR Part 74

    Color additives, Cosmetics, Drugs.

    Therefore, under the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 321, 341, 342, 343, 348, 351, 352, 355, 361, 362, 371, 379e) and under authority delegated to the Commissioner of Food and Drugs, and redelegated to the Director, Office of Food Additive Safety, we are giving notice that no objections or requests for a hearing were filed in response to the November 1, 2016, final rule. Accordingly, the amendments issued thereby became effective December 2, 2016.

    Dated: January 9, 2017. Dennis M. Keefe, Director, Office of Food Additive Safety, Center for Food Safety and Applied Nutrition.
    [FR Doc. 2017-00534 Filed 1-19-17; 8:45 am] BILLING CODE 4164-01-P
    DEPARTMENT OF THE INTERIOR Bureau of Indian Affairs 25 CFR Parts 140, 141, 211, 213, 225, 226, 227, 243, and 249 [178A2100DD/AAKC001030/A0A501010.999900253G] RIN 1076-AF35 Civil Penalties Inflation Adjustments; Annual Adjustments AGENCY:

    Bureau of Indian Affairs, Interior.

    ACTION:

    Final rule.

    SUMMARY:

    This rule provides for annual adjustments to the level of civil monetary penalties contained in Bureau of Indian Affairs (Bureau) regulations to account for inflation under the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 and Office of Management and Budget (OMB) guidance.

    DATES:

    This rule is effective on January 23, 2017.

    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. Background II. Calculation of Annual Adjustments III. Procedural Requirements A. Regulatory Planning and Review (E.O. 12866) 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. Effects on the Energy Supply (E.O. 13211) L. Clarity of This Regulation M. Administrative Procedure Act I. Background

    On November 2, 2015, the President signed into law the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (Sec. 701 of Pub. L. 114-74) (“the Act”). The Act requires Federal agencies to adjust the level of civil monetary penalties with an initial “catch-up” adjustment through rulemaking and then make subsequent annual adjustments for inflation. The purpose of these adjustments is to maintain the deterrent effect of civil penalties and to further the policy goals of the underlying statutes.

    The Office of Management and Budget (OMB) issued guidance for Federal agencies on calculating the catch-up adjustment. See February 24, 2016, Memorandum for the Heads of Executive Departments and Agencies, from Shaun Donovan, Director, Office of Management and Budget, re: Implementation of the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (M-16-06). Under the guidance, the Department identified applicable civil monetary penalties and calculated the catch-up adjustment. A civil monetary penalty is any assessment with a dollar amount that is levied for a violation of a Federal civil statute or regulation, and is assessed or enforceable through a civil action in Federal court or an administrative proceeding. A civil monetary penalty does not include a penalty levied for violation of a criminal statute, or fees for services, licenses, permits, or other regulatory review. The calculated catch-up adjustment is based on the percent change between the Consumer Price Index for all Urban Consumers (CPI0-U) for the month of October in the year of the previous adjustment (or in the year of establishment, if no adjustment has been made) and the October 2015 CPI-U.

    The Bureau issued an interim final rule providing for calculated catch-up adjustments on June 30, 2016 (81 FR 42478) and requesting comments post-promulgation. The Bureau issued a final rule affirming the catch-up adjustments set forth in the interim final rule on December 2, 2016 (81 FR 86953). The final rule adjusted the following civil monetary penalties, effective on August 1, 2016:

    CFR citation Description of penalty Current
  • penalty
  • Catchup
  • adjustment
  • multiplier
  • Adjusted
  • penalty
  • 25 CFR 140.3 Penalty for trading in Indian country without a license $500 2.50000 $1,250 25 CFR 141.50 Penalty for trading on Navajo, Hopi or Zuni reservations without a license 500 2.50000 1,250 25 CFR 211.55 Penalty for violation of leases of Tribal land for mineral development, violation of part 211, or failure to comply with a notice of noncompliance or cessation order 1,000 1.50245 1,502 25 CFR 213.37 Penalty for failure of lessee to comply with lease of restricted lands of members of the Five Civilized Tribes in Oklahoma for mining, operating regulations at part 213, or orders 500 2.50000 1,250 25 CFR 225.37 Penalty for violation of minerals agreement, regulations at part 225, other applicable laws or regulations, or failure to comply with a notice of noncompliance or cessation order 1,000 1.59089 1,591 25 CFR 226.42 Penalty for violation of lease of Osage reservation lands for oil and gas mining or regulations at part 226, or noncompliance with the Superintendent's order 500 1.78156 891 25 CFR 226.43(a) Penalty per day for failure to obtain permission to start operations 50 1.78156 89 25 CFR 226.43(b) Penalty per day for failure to file records 50 1.78156 89 25 CFR 226.43(c) Penalty for each well and tank battery for failure to mark wells and tank batteries 50 1.78156 89 25 CFR 226.43(d) Penalty each day after operations are commenced for failure to construct and maintain pits 50 1.78156 89 25 CFR 226.43(e) Penalty for failure to comply with requirements regarding valve or other approved controlling device 100 1.78156 178 25 CFR 226.43(f) Penalty for failure to notify Superintendent before drilling, redrilling, deepening, plugging, or abandoning any well 200 1.78156 356 25 CFR 226.43(g) Penalty per day for failure to properly care for and dispose of deleterious fluids 500 1.78156 891 25 CFR 226.43(h) Penalty per day for failure to file plugging and other required reports 50 1.78156 89 25 CFR 227.24 Penalty for failure of lessee of certain lands in Wind River Indian Reservation, Wyoming, for oil and gas mining to comply with lease provisions, operating regulations, regulations at part 227, or orders 500 2.50000 1,250 25 CFR 243.8 Penalty for non-Native transferees of live Alaskan reindeer who violates part 243, takes reindeer without a permit, or fails to abide by permit terms. 5,000 1.17858 5,893 25 CFR 249.6(b) Penalty for fishing in violation of regulations at part 249 (Off-Reservation Treaty Fishing). 500 2.50000 1,250
    II. Calculation of Annual Adjustments

    OMB recently issued guidance to assist Federal agencies in implementing the annual adjustments required by the Act which agencies must complete by January 15, 2017. See December 16, 2016, Memorandum for the Heads of Executive Departments and Agencies, from Shaun Donovan, Director, Office of Management and Budget, re: Implementation of the 2017 annual adjustment pursuant to the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (M-17-11). The guidance states that the cost-of-living adjustment multiplier for 2017, based on the Consumer Price Index (CPI-U) for the month of October 2016, not seasonally adjusted, is 1.01636. (The annual inflation adjustments are based on the percent change between the October CPI-U preceding the date of the adjustment, and the prior year's October CPI-U. For 2017, OMB explains, October 2016 CPI-U (241.729)/October 2015 CPI-U (237.838) = 1.01636.) The guidance instructs agencies to complete the 2017 annual adjustment by multiplying each applicable penalty by the multiplier, 1.01636, and rounding to the nearest dollar. Further, agencies should apply the multiplier to the most recent penalty amount that includes the catch-up adjustment required by the Act.

    The annual adjustment applies to all civil monetary penalties with a dollar amount that are subject to the Act. This final rule adjusts the following civil monetary penalties contained in the Bureau's regulations for 2017 by multiplying 1.01636 (i.e., the cost-of-living adjustment multiplier for 2017) by each penalty amount as updated by the catch-up adjustment made in 2016:

    CFR citation Description of penalty Current
  • penalty
  • including
  • catchup
  • adjustment
  • Annual
  • adjustment
  • (multiplier)
  • Adjusted
  • penalty
  • for 2017
  • 25 CFR 140.3 Penalty for trading in Indian country without a license $1,250 1.01636 $1,270 25 CFR 141.50 Penalty for trading on Navajo, Hopi or Zuni reservations without a license 1,250 1.01636 1,270 25 CFR 211.55 Penalty for violation of leases of Tribal land for mineral development, violation of part 211, or failure to comply with a notice of noncompliance or cessation order 1,502 1.01636 1,527 25 CFR 213.37 Penalty for failure of lessee to comply with lease of restricted lands of members of the Five Civilized Tribes in Oklahoma for mining, operating regulations at part 213, or orders 1,250 1.01636 1,270 25 CFR 225.37 Penalty for violation of minerals agreement, regulations at part 225, other applicable laws or regulations, or failure to comply with a notice of noncompliance or cessation order 1,591 1.01636 1,617 25 CFR 226.42 Penalty for violation of lease of Osage reservation lands for oil and gas mining or regulations at part 226, or noncompliance with the Superintendent's order 891 1.01636 906 25 CFR 226.43(a) Penalty per day for failure to obtain permission to start operations 89 1.01636 90 25 CFR 226.43(b) Penalty per day for failure to file records 89 1.01636 90 25 CFR 226.43(c) Penalty for each well and tank battery for failure to mark wells and tank batteries 89 1.01636 90 25 CFR 226.43(d) Penalty each day after operations are commenced for failure to construct and maintain pits 89 1.01636 90 25 CFR 226.43(e) Penalty for failure to comply with requirements regarding valve or other approved controlling device 178 1.01636 181 25 CFR 226.43(f) Penalty for failure to notify Superintendent before drilling, redrilling, deepening, plugging, or abandoning any well 356 1.01636 362 25 CFR 226.43(g) Penalty per day for failure to properly care for and dispose of deleterious fluids 891 1.01636 906 25 CFR 226.43(h) Penalty per day for failure to file plugging and other required reports 89 1.01636 90 25 CFR 227.24 Penalty for failure of lessee of certain lands in Wind River Indian Reservation, Wyoming, for oil and gas mining to comply with lease provisions, operating regulations, regulations at part 227, or orders 1,250 1.01636 1,270 25 CFR 243.8 Penalty for non-Native transferees of live Alaskan reindeer who violates part 243, takes reindeer without a permit, or fails to abide by permit terms. 5,893 1.01636 5,989 25 CFR 249.6(b) Penalty for fishing in violation of regulations at part 249 (Off-Reservation Treaty Fishing). 1,250 1.01636 1,270

    Consistent with the Act, the adjusted penalty levels for 2017 will take effect immediately upon the effective date of the adjustment. The adjusted penalty levels for 2017 will apply to penalties assessed after that date including, if consistent with agency policy, assessments associated with violations that occurred on or after November 2, 2015. The Act does not, however, change previously assessed penalties that the Bureau is collecting or has collected. Nor does the Act change an agency's existing statutory authorities to adjust penalties.

    III. 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

    This rule 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.) because the rule makes adjustments for inflation.

    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. This rule:

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

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

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

    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)

    This rule does not affect a taking of private property or otherwise have taking implications under Executive Order 12630. A takings implication assessment is not required.

    F. Federalism (E.O. 13132)

    Under the criteria in section 1 of Executive Order 13132, this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement. A federalism summary impact statement is not required.

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

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

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

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

    H. Consultation With Indian Tribes (E.O. 13175 and Departmental Policy)

    The Department of the Interior strives to strengthen its government-to-government relationship with Indian tribes through a commitment to consultation with Indian tribes and recognition of their right to self-governance and tribal sovereignty. We have evaluated this rule under the Department's consultation policy and under the criteria in Executive Order 13175 and have determined that it has no substantial direct effects on federally recognized Indian tribes and that consultation under the Department's tribal consultation policy is not required.

    I. Paperwork Reduction Act

    This rule does not contain information collection requirements, and a submission to the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.) is not required. We may not conduct or sponsor, and you are not required to respond to, a collection of information unless it displays a currently valid OMB control number.

    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. 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.

    L. Clarity of This Regulation

    We are required by Executive Orders 12866 (section 1 (b)(12)), 12988 (section 3(b)(1)(B)), and 13563 (section 1(a)), and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:

    (a) Be logically organized;

    (b) Use the active voice to address readers directly;

    (c) Use common, everyday words and clear language rather than jargon;

    (d) Be divided into short sections and sentences; and

    (e) Use lists and tables wherever possible.

    If you feel that we have not met these requirements, send us comments by one of the methods listed in the ADDRESSES section. To better help us revise the rule, your comments should be as specific as possible. For example, you should tell us the numbers of the sections or paragraphs that you find unclear, which sections or sentences are too long, the sections where you feel lists or tables would be useful, etc.

    M. Administrative Procedure Act

    The Act requires agencies to publish annual inflation adjustments by no later than January 15, 2017, and by no later than January 15 each subsequent year, notwithstanding section 553 of the Administrative Procedure Act (APA) (5 U.S.C. 553). OMB has interpreted this direction to mean that the usual APA public procedure for rulemaking—which includes public notice of a proposed rule, an opportunity for public comment, and a delay in the effective date of a final rule—is not required when agencies issue regulations to implement the annual adjustments to civil penalties that the Act requires. Accordingly, we are issuing the 2017 annual adjustments as a final rule without prior notice or an opportunity for comment and with an effective date immediately upon publication in the Federal Register.

    Section 553(b) of the Administrative Procedure Act (APA) provides that, when an agency for good cause finds that “notice and public procedure . . . are impracticable, unnecessary, or contrary to the public interest,” the agency may issue a rule without providing notice and an opportunity for prior public comment. Under section 553(b), the Bureau finds that there is good cause to promulgate this rule without first providing for public comment. It would not be possible to meet the deadlines imposed by the Act if we were to first publish a proposed rule, allow the public sufficient time to submit comments, analyze the comments, and publish a final rule. Also, the Bureau is promulgating this final rule to implement the statutory directive in the Act, which requires agencies to publish a final rule and to update the civil penalty amounts by applying a specified formula. The Bureau has no discretion to vary the amount of the adjustment to reflect any views or suggestions provided by commenters. Accordingly, it would serve no purpose to provide an opportunity for public comment on this rule prior to promulgation. Thus, providing for notice and public comment is impracticable and unnecessary.

    Furthermore, the Bureau finds under section 553(d)(3) of the APA that good cause exists to make this final rule effective immediately upon publication in the Federal Register. In the Act, Congress expressly required Federal agencies to publish annual inflation adjustments to civil penalties in the Federal Register by January 15, 2017, and not later than January 15 of every subsequent year, notwithstanding section 553 of the APA. Under the statutory framework and OMB guidance, the new penalty levels take effect immediately upon the effective date of the adjustment. The statutory deadline does not allow time to delay this rule's effective date beyond publication. Moreover, an effective date after January 15 would delay application of the new penalty levels, contrary to Congress's intent.

    List of Subjects 25 CFR 140

    Business and industry, Indians, Penalties.

    25 CFR 141

    Business and industry, Credit, Indians—business and finance, Penalties.

    25 CFR 211

    Geothermal energy, Indians—lands, Mineral resources, Mines, Oil and gas exploration, Reporting and recordkeeping requirements.

    25 CFR 213

    Indians—lands, Mineral resources, Mines, Oil and gas exploration, Reporting and recordkeeping requirements.

    25 CFR 225

    Geothermal energy, Indians—lands, Mineral resources, Mines, Oil and gas exploration, Penalties, Reporting and recordkeeping requirements, Surety bonds.

    25 CFR 226

    Indians—lands.

    25 CFR 227

    Indians—lands, Mineral resources, Mines, Oil and gas exploration, Reporting and recordkeeping requirements.

    25 CFR 243

    Indians, Livestock.

    25 CFR 249

    Fishing, Indians.

    For the reasons given in the preamble, the Department of the Interior amends Chapter 1 of title 25 Code of Federal Regulations as follows.

    Title 25—Indians CHAPTER 1—BUREAU OF INDIAN AFFAIRS, DEPARTMENT OF THE INTERIOR PART 140—LICENSED INDIAN TRADERS 1. The authority citation for part 140 is revised to read as follows: Authority:

    Sec. 5, 19 Stat. 200, sec. 1, 31 Stat. 1066 as amended; 25 U.S.C. 261, 262; 94 Stat. 544, 18 U.S.C. 437; 25 U.S.C. 2 and 9; 5 U.S.C. 301; and Sec. 701, Pub. L. 114-74, 129 Stat. 599, unless otherwise noted.

    § 140.3 [Amended]
    2. In § 140.3, remove “$1,250” and add in its place “$1,270”. PART 141—BUSINESS PRACTICES ON THE NAVAJO, HOPI AND ZUNI RESERVATIONS 3. The authority citation for part 141 is revised to read as follows: Authority:

    5 U.S.C. 301; 25 U.S.C. 2 and 9; and Sec. 701, Pub. L. 114-74, 129 Stat. 599, unless otherwise noted.

    § 141.50 [Amended]
    4. In § 141.50, remove “$1,250” and add in its place “$1,270”. PART 211—LEASING OF TRIBAL LANDS FOR MINERAL DEVELOPMENT 5. The authority citation for part 211 is revised to read as follows: Authority:

    Sec. 4, Act of May 11, 1938 (52 Stat. 347); Act of August 1, 1956 (70 Stat. 744); 25 U.S.C. 396a-g; 25 U.S.C. 2 and 9; and Sec. 701, Pub. L. 114-74, 129 Stat. 599, unless otherwise noted.

    § 211.55 [Amended]
    6. In § 211.55(a), remove “$1,502” and add in its place “$1,527”. PART 213—LEASING OF RESTRICTED LANDS FOR MEMBERS OF FIVE CIVILIZED TRIBES, OKLAHOMA, FOR MINING 7. The authority citation for part 213 is revised to read as follows: Authority:

    Sec. 2, 35 Stat. 312; sec. 18, 41 Stat. 426; sec. 1, 45 Stat. 495; sec. 1, 47 Stat. 777; 25 U.S.C. 356; and Sec. 701, Pub. L. 114-74, 129 Stat. 599. Interpret or apply secs. 3, 11, 35 Stat. 313, 316; sec. 8, 47 Stat. 779, unless otherwise noted.

    § 213.37 [Amended]
    8. In § 213.37, remove “$1,250” and add in its place “$1,270”. PART 225—OIL AND GAS, GEOTHERMAL AND SOLID MINERALS AGREEMENTS 9. The authority citation for part 225 is revised to read as follows: Authority:

    25 U.S.C. 2, 9, and 2101-2108; and Sec. 701, Pub. L. 114-74, 129 Stat. 599.

    § 225.37 [Amended]
    10. In § 225.37(a), remove “$1,591” and add in its place “$1,617”. PART 226—LEASING OF OSAGE RESERVATION LANDS FOR OIL AND GAS MINING 9. The authority citation for part 226 is revised to read as follows: Authority:

    Sec. 3, 34 Stat. 543; secs. 1, 2, 45 Stat. 1478; sec. 3, 52 Stat. 1034, 1035; sec. 2(a), 92 Stat. 1660; and Sec. 701, Pub. L. 114-74, 129 Stat. 599.

    § 226.42 [Amended]
    10. In § 226.42, remove “$891” and add in its place “$906”.
    § 226.43 [Amended]
    11. In § 226.43: a. Remove “$89” each time it appears and add in each place “$90” wherever it appears in this section. b. In paragraph (e), remove “$178” and add in its place “$181”. c. In paragraph (f), remove “$356” and add in its place “$362”. d. In paragraph (g), remove “$891” and add in its place “$906”. PART 227—LEASING OF CERTAIN LANDS IN WIND RIVER INDIAN RESERVATION, WYOMING, FOR OIL AND GAS MINING 12. The authority citation for part 227 is revised to read as follows: Authority:

    Sec. 1, 39 Stat. 519; and Sec. 701, Pub. L. 114-74, 129 Stat. 599, unless otherwise noted.

    § 227.24 [Amended]
    13. In § 227.24, remove “$1,250” and add in its place “$1,270”. PART 243—REINDEER IN ALASKA 14. The authority citation for part 243 is revised to read as follows: Authority:

    Sec. 12, 50 Stat. 902; 25 U.S.C. 500K; and Sec. 701, Pub. L. 114-74, 129 Stat. 599.

    § 243.8 [Amended]
    15. In § 243.8(a) introductory text, remove “$5,893” and add in its place “$5,989”. PART 249—OFF-RESERVATION TREATY FISHING 16. The authority citation for part 249 is revised to read as follows: Authority:

    25 U.S.C. 2, and 9; 5 U.S.C. 301; and Sec. 701, Pub. L. 114-74, 129 Stat. 599, unless otherwise noted.

    § 249.6 [Amended]
    17. In § 249.6(b), remove “$1,250” and add in its place “$1,270”. Dated: January 11, 2017. Lawrence S. Roberts, Principal Deputy Assistant Secretary—Indian Affairs.
    [FR Doc. 2017-01076 Filed 1-19-17; 8:45 am] BILLING CODE 4337-15-P
    DEPARTMENT OF THE TREASURY Alcohol and Tobacco Tax and Trade Bureau 27 CFR Parts 24 and 27 [Docket No. TTB-2016-0014; T.D. TTB-147; Re: Notice No. 168] RIN 1513-AC31 Implementation of Statutory Amendments Requiring the Modification of the Definition of Hard Cider AGENCY:

    Alcohol and Tobacco Tax and Trade Bureau, Treasury.

    ACTION:

    Temporary rule; Treasury decision; cross reference to notice of proposed rulemaking.

    SUMMARY:

    This temporary rule amends the Alcohol and Tobacco Tax and Trade Bureau (TTB) regulations to implement changes made to the definition of “hard cider” in the Internal Revenue Code of 1986 by the Protecting Americans from Tax Hikes Act of 2015. The modified definition broadens the range of wines eligible for the hard cider tax rate. TTB is amending its regulations to reflect the modified definition of hard cider effective for products removed on or after January 1, 2017, and to set forth new labeling requirements to identify products to which the hard cider tax rate applies. The new labeling requirements include both a one-year transitional rule and a new labeling requirement that takes effect for products removed on or after January 1, 2018. TTB is also soliciting comments from all interested parties on these amendments through a notice of proposed rulemaking published elsewhere in this issue of the Federal Register.

    DATES:

    This temporary rule is effective January 23, 2017.

    FOR FURTHER INFORMATION CONTACT:

    Kara Fontaine, Regulations and Rulings Division, Alcohol and Tobacco Tax and Trade Bureau, 1310 G Street NW., Box 12, Washington, DC 20005; telephone (202) 453-1039 ext. 103.

    SUPPLEMENTARY INFORMATION:

    I. Background Protecting Americans From Tax Hikes Act of 2015

    On December 18, 2015, the President signed into law the Consolidated Appropriations Act, 2016 (Pub. L. 114-113). Division Q of this Act is titled the Protecting Americans from Tax Hikes Act of 2015 (PATH Act). Section 335(a) of the PATH Act amends the Internal Revenue Code of 1986 (IRC) at 26 U.S.C. 5041 by modifying the definition of hard cider for excise tax classification purposes. Pursuant to section 335(b) of the PATH Act, the amended definition of hard cider applies to such products removed on or after January 1, 2017. The PATH Act does not change the tax rate applicable to wine eligible for the hard cider tax rate; rather, it broadens the range of products to which the hard cider tax rate applies. Among other things, the range of products to which the hard cider tax rate applies will include certain sparkling and carbonated products and certain products that are subject to the requirements of the Federal Alcohol Administration Act (FAA Act).

    TTB Authority

    The Alcohol and Tobacco Tax and Trade Bureau (TTB) of the Department of the Treasury administers chapter 51 of the IRC, which sets forth the Federal excise taxes on wine and related provisions, including provisions addressing the production and marking of wine (see 26 U.S.C. chapter 51). Section 5041 of the IRC (26 U.S.C. 5041) imposes six excise tax rates, including the hard cider tax rate, on wines. These tax rates are associated with six tax classes that correspond to section 5041(b) subparagraphs (1) through (6), as follows:

    • Section 5041(b)(1) imposes a tax of $1.07 per wine gallon 1 on still wines containing not more than 14 percent alcohol by volume.

    1 The TTB regulations in 27 CFR 24.10 define the term “wine gallon” as “a United States gallon of liquid measure equivalent to the volume of 231 cubic inches.”

    • Section 5041(b)(2) imposes a tax of $1.57 per wine gallon on still wines containing more than 14 percent and not exceeding 21 percent of alcohol by volume.

    • Section 5041(b)(3) imposes a tax of $3.15 per wine gallon on still wines containing more than 21 percent and not exceeding 24 percent of alcohol by volume.

    • Section 5041(b)(4) imposes a tax of $3.40 per wine gallon on champagne and other sparkling wines.

    • Section 5041(b)(5) imposes a tax of $3.30 per wine gallon on artificially carbonated wines.

    • Section 5041(b)(6) imposes a tax of $0.226 per wine gallon on hard cider.

    With regard to the hard cider tax class, prior to the effective date of the hard cider provisions of the PATH Act, section 5041(b)(6) defines the term “hard cider” as a still wine derived primarily from apples or apple concentrate and water, containing no other fruit product, and containing at least one-half of 1 percent and less than 7 percent alcohol by volume. Under section 5041(a), a “still wine” is a wine containing not more than 0.392 gram of carbon dioxide per 100 milliliters of wine, with tolerances “as may be reasonably necessary in good commercial practice” as prescribed by regulation.

    Section 5041(c) allows a credit of up to 90 cents per wine gallon for small domestic wine producers on the first 100,000 gallons of wine taxed at one of the three still wine tax rates or at the artificially carbonated wine tax rate removed for consumption or sale during a calendar year, under certain prescribed circumstances. The law allows a credit of up to 5.6 cents per wine gallon for small domestic producers on wine that is taxed at the hard cider tax rate. Section 5041(c) does not provide a credit against taxes imposed under section 5041(b)(4) on wine that is taxed at the champagne or other sparkling wine tax rate.

    The tax on wine is determined at the time of removal (generally, removal from a bonded wine premises or release from customs custody) for consumption or sale (26 U.S.C. 5041(a)). Wine so removed must be in containers bearing marks and labels evidencing compliance with the IRC as the Secretary of the Treasury may by regulations prescribe (26 U.S.C. 5368(b)). Proprietors of bonded wine premises and importers must keep records, in such a form, and containing such information, as the Secretary may by regulations prescribe (26 U.S.C. 5367 and 26 U.S.C. 5555). Section 7805 of the IRC (26 U.S.C. 7805) provides the Secretary with authority to issue regulations to carry out the provisions of the IRC.

    In addition to the IRC requirements, wine is subject to the requirements of the FAA Act. As defined by the FAA Act, the term “wine” includes apple and pear wine containing at least 7 percent alcohol by volume (27 U.S.C. 211(a)(6)). Section 105(e) of the FAA Act, codified at 27 U.S.C. 205(e), authorizes the Secretary of the Treasury to prescribe regulations for the labeling of wine to, among other things, prohibit consumer deception and the use of misleading statements on labels and to ensure that the labels provide the consumer with adequate information as to the identity and quality of the product. The FAA Act generally requires bottlers and importers to obtain a TTB certificate of label approval (COLA) prior to bottling wine or removing bottled wine from customs custody for sale in interstate or foreign commerce. Section 103 of the FAA Act, codified at 27 U.S.C. 203, also requires that producers, blenders, wholesalers, and importers of wine that contains at least 7 percent alcohol by volume obtain a “basic permit” to engage in such businesses. The Alcoholic Beverage Labeling Act of 1988 (ABLA) requires a health warning statement to appear on containers of all alcoholic beverages, including wine, containing at least one-half of one percent alcohol by volume (27 U.S.C. 214 and 215).

    TTB administers chapter 51 of the IRC and the FAA Act, and their implementing regulations, pursuant to section 1111(d) of the Homeland Security Act of 2002, codified at 6 U.S.C. 531(d). The Secretary has delegated various authorities through Treasury Department Order 120-01, dated December 10, 2013 (superseding Treasury Order 120-01, dated January 24, 2003), to the TTB Administrator to perform the functions and duties in the administration and enforcement of these laws. Regulations that implement the provisions of the IRC, as they relate to wine, include regulations in part 24 (27 CFR part 24) for domestic wine and part 27 (27 CFR part 27) for imported wine. Regulations that implement the provisions of FAA Act, as they relate to wine, include regulations in parts 1 and 4 (27 CFR parts 1 and 4). Regulations that implement the provisions of ABLA are in part 16 (27 CFR part 16).

    II. History of the Regulatory Definition of Hard Cider for Tax Purposes

    The Taxpayer Relief Act of 1997 (TRA), Public Law 105-34, enacted on August 5, 1997, added the tax class for wine called “hard cider” in 26 U.S.C. 5041(b)(6), as shown above. The definition of wine eligible for the “hard cider” tax classification, as enacted by the TRA, was clarified (to specify that “hard cider” is a “still wine”) by the Internal Revenue Service Restructuring and Reform Act of 1998, Public Law 105-206. This clarification was effective October 1, 1997, the same effective date as the hard cider provisions of the TRA.

    On August 21, 1998, pursuant to the TRA, the Bureau of Alcohol, Tobacco, and Firearms (ATF), TTB's predecessor agency, published a temporary rule in the Federal Register (T.D. ATF-398, 63 FR 44779) amending part 24 of the TTB regulations to add a definition of wine that was eligible for the new hard cider excise tax rate found in 26 U.S.C. 5041(b)(6). ATF also issued a concurrent notice of proposed rulemaking (Notice No. 859, 63 FR 44819) inviting comments on the temporary rule.

    The portion of the temporary rule related to cider generated comments on the proposed definition of cider and the labeling rules. In particular, many commenters expressed concern that the labeling rules for hard cider in T.D. ATF-398 did not allow for the appropriate designation of their products. The temporary rule would have changed both the IRC and the FAA Act labeling rules to require use of the term “hard cider” on products that are taxable as hard cider, and prohibit use of that term on any other wine. In response to the comments ATF received regarding T.D. ATF-398, ATF published T.D. ATF-418 (64 FR 51896) on September 27, 1999, postponing the labeling compliance date for the rules in T.D. ATF-398. At the same time, ATF published Notice No. 881 (64 FR 51933) to solicit comments on alternative labeling rules. ATF subsequently published T.D. ATF-430 (65 FR 57734) on September 26, 2000, postponing the labeling compliance date until January 31, 2001.

    ATF finalized this temporary rule on November 26, 2001, with the publication of T.D. ATF-470 (66 FR 58938). ATF defined the term “hard cider” in 27 CFR 24.10 as a still wine derived primarily from apples or apple concentrate and water (apple juice, or the equivalent amount of concentrate reconstituted to the original brix of the juice prior to concentration, must represent more than 50 percent of the volume of the finished product); containing no other fruit product nor any artificial product which imparts a fruit flavor other than apple; containing at least one-half of 1 percent and less than 7 percent alcohol by volume; having the taste, aroma, and characteristics generally attributed to hard cider, and sold or offered for sale as hard cider and not as a substitute for any other alcohol product.

    The regulatory definition clarified the statutory definition in two respects. First, in the preamble of T.D. ATF-398, ATF explained that it interpreted the statutory phrase, “derived primarily from apples or apple concentrate and water,” to mean that apple juice or the equivalent amount of concentrate reconstituted to the original brix of the juice prior to concentration must represent more than 50 percent of the volume of the finished product. (The term “brix” in this text refers to the quantity of dissolved solids expressed as grams of sucrose in 100 grams of solution at 60 degrees Fahrenheit. For example, one degree Brix is 1 gram of sucrose in 100 grams of solution and represents the strength of the solution as percentage by mass.)

    Second, ATF interpreted the statutory phrase “containing no other fruit product” to mean “containing no other fruit product nor any artificial product which imparts a fruit flavor other than apple.” As explained in the preamble of T.D. ATF-470, this interpretation is based on the legislative history of the TRA, which states:

    Once fermented, eligible hard cider may not be altered by the addition of other fruit juices, flavor, or other ingredient that alters the flavor that results from the fermentation process. Thus, for example, cider fermented from apples, but which has raspberry flavor added to it prior to bottling and marketing to the public, will not be eligible for the 22.6 cents-per gallon tax rate.2

    2 See General Explanation of Tax Legislation Enacted in 1997, published by the Joint Committee on Taxation (JCS-23-97).

    ATF “d[id] not believe it was Congress's intent to provide a tax incentive for use of artificial ingredients in preference to real ones.” See 66 FR 58941.

    The preamble to T.D. ATF-470 also explained that the regulatory definition does not preclude the use of flavors such as honey or spices, noting that “[f]lavoring materials will only affect the tax classification of hard cider if they are derived from or impart the flavor of a fruit other than apple.” See 66 FR 58941. This position is also reflected in current public guidance in the form of an FAQ on the TTB Web site. Specifically, FAQ CID24 states that, because the IRC provides that the hard cider tax rate under section 5041(b)(6) is not available to wines that contain a fruit product other than apple, a cider containing either natural or artificial fruit flavors (other than apple flavors) is not eligible for the hard cider tax rate of 22.6¢ per gallon. Instead, a fruit-flavored cider would be taxed at the appropriate wine excise tax rate. (See https://www.ttb.gov/faqs/alcohol_faqs.shtml?Cider#Cider.)

    In the preamble to T.D. ATF-470, ATF also addressed the prohibition on “other fruit products” with regard to authorized wine treating materials that are derived from fruits other than apple, such as tannin or citric acid. The preamble explained that the final rule did not restrict the use of approved wine treating materials derived from fruit in cider, stating that it would be impractical to make a distinction between fruit-derived wine treating materials and the same materials derived from other sources, unless there were other circumstances that indicated the producer was using these materials as flavorings. One of those circumstances would be the labeling of the product as being “flavored” with a fruit other than apple.

    ATF noted that, when used as directed in 27 CFR part 24 for natural wines, authorized wine treating materials would not impart a fruit flavor to wine. However, ATF also noted that some ciders are made under approved formulas rather than under the rules for production of natural wine in subparts F and L of part 24, and that for formula wines 3 , the use of wine treating materials may be approved at a level beyond the level authorized in part 24 for stabilizing or adjusting the acidity of a natural wine. ATF further noted that while the final rule did not place limits on the use of wine treating materials derived from fruits other than apple in a formula wine eligible for the hard cider tax rate, a formula wine may not contain such treating materials in amounts sufficient to impart a fruit flavor other than apple and still be taxed as hard cider. For example, if a cider contained more citric acid than the amount allowed under subpart L of part 24 for the production of natural wine,4 and was labeled as “citrus flavored,” the product would be classified for tax purposes as a still wine under 14 percent alcohol by volume rather than hard cider.

    3 The TTB regulations at 27 CFR 24.10 define the term “formula wine” as special natural wine, agricultural wine, and other than standard wine (except for distilling material and vinegar stock) produced on bonded wine premises under an approved formula.

    4 Natural wine, under 26 U.S.C. 5381, is the product of the juice or must of sound, ripe grapes or other sound, ripe fruit, made with such cellar treatment as may be authorized under section 5382 of the IRC (26 U.S.C. 5382) and containing not more than 21 percent by weight of total solids.

    Finally, ATF recognized that the term “hard cider” had broader meaning in the industry and among consumers than the definition given in the regulations. As a result, ATF stated that it would allow the use of the term “hard cider” on labels of products that do not belong to the hard cider tax class, as long as other information on the label allows for the identification of the appropriate tax class.

    III. PATH Act's Modification of the IRC Definition of Hard Cider for Tax Purposes

    The PATH Act amendments to section 5041 of the IRC change the definition of “hard cider,” allowing a broader range of products to be eligible for the hard cider tax rate. TTB notes that the PATH Act did not amend the FAA Act, although the definition of hard cider under the PATH Act now includes products to which the FAA Act requirements apply.

    Under the PATH Act, effective January 1, 2017, section 5041 of the IRC, Imposition and rate of tax, contains a new paragraph (g), which defines the term “hard cider” as a wine.

    Under the PATH Act, effective January 1, 2017, section 5041 of the IRC, Imposition and rate of tax, contains a new paragraph (g), which defines the term “hard cider” as a wine derived primarily from apples or pears, or from apple juice concentrate or pear concentrate and water, which contains no fruit product or fruit flavoring other than apple or pear. Also, under the revised definition, hard cider cannot contain “more than 0.64 gram of carbon dioxide per hundred milliliters of wine, except that the Secretary may by regulations prescribe such tolerances to this limitation as may be reasonably necessary in good commercial practice.” In addition, the revised definition states that the alcohol content of hard cider may range between at least 0.5 percent and less than 8.5 percent alcohol by volume.

    The specific changes concerning the hard cider tax rate resulting from the PATH Act are discussed individually below.

    Increase in Authorized Amount of Carbon Dioxide

    As noted above, prior to the effective date of the hard cider provisions of the PATH Act, to be eligible for the “hard cider” tax rate under the IRC, wine must be, among other things, a “still wine,” that is, a wine containing not more than 0.392 gram of carbon dioxide per 100 milliliters. The modified definition of hard cider allows wine that is eligible for the hard cider tax rate to contain no more than 0.64 gram of carbon dioxide per 100 milliliters of wine. Prior to the effective date of the hard cider provisions of the PATH Act, wine with a carbon dioxide content greater than 0.392 gram of carbon dioxide per 100 milliliters of wine is an “effervescent wine” and is taxed as either “sparkling wine” or as “artificially carbonated wine” depending on the source of the carbon dioxide. Sparkling wine is an effervescent wine for which the carbon dioxide has resulted solely from the secondary fermentation of the wine within a closed container. Artificially carbonated wine is a wine made effervescent by the injection of carbon dioxide. See § 24.10. Sparkling wine and artificially carbonated wine have no maximum level of carbon dioxide.

    The definition of hard cider, as modified by the PATH Act, includes certain effervescent wines that contain more than 0.392 gram but no more than 0.64 gram of carbon dioxide per 100 milliliters of wine. This means that, under the modified definition, certain wines that would previously have fallen within the tax classes applicable to sparkling wine or artificially carbonated wine will be eligible for the hard cider tax rate.

    Use of Pears and Pear Concentrate in Addition to Apples and Apple Concentrate

    Prior to the effective date of the hard cider provisions of the PATH Act, the statutory definition of wine eligible for the hard cider tax rate requires that wine be derived primarily from apples or apple concentrate and water in order to be eligible for that tax rate. The modified definition under the PATH Act provides that wine eligible for the hard cider tax rate must be derived primarily from apples or pears or from apple juice concentrate or pear juice concentrate and water.

    According to its legislative history,5 this amendment was to “expand the hard cider definition to include pears, or pear juice concentrate and water, in addition to apples and apple juice concentrate and water.” TTB believes that the amendment to the definition of hard cider was not intended to prevent the use of apples and pears together. In keeping with the current definition of hard cider found in part 24 which provides, in part, “* * * (apple juice, or the equivalent amount of concentrate reconstituted to the original brix of the juice prior to concentration, must represent more than 50 percent of the volume of the finished product) * * *,” TTB is interpreting the modified definition to mean that apple juice, pear juice, a combination of apple juice and pear juice, or the equivalent amount of concentrate reconstituted to the original brix of the juice prior to concentration, must represent more than 50 percent of the volume of the finished product. In other words, if apple juice and pear juice (or the equivalent amount of concentrate reconstituted to the original brix of the juice prior to concentration) together represent more than 50 percent of the volume of the finished product, this requirement is met.

    5 See JCX-144-15, “Technical Explanation of the Protecting Americans From Tax Hikes Act of 2015, House Amendment #2 to the Senate Amendment to H.R. 2029 (Rules Committee Print 114-40).”

    Fruit Products and Fruit Flavoring

    Prior to the effective date of the hard cider provisions of the PATH Act, the statutory definition of hard cider provides that no fruit product other than apple and apple concentrate may be used in wine eligible for the hard cider tax rate. As described above, the current regulatory definition of hard cider for tax purposes states that, among other things, hard cider must contain “no other fruit product nor any artificial product which imparts a fruit flavor other than apple.” Pursuant to the PATH Act, the modified definition of hard cider prohibits the use of any “fruit product or fruit flavoring other than apple or pear.”

    With the exception of the inclusion of pear, the prohibition against other fruit products or fruit flavorings is similar to the current statutory and regulatory text, except that it is even clearer than the prior law that wines eligible for the “hard cider” tax rate may not contain either “fruit products” (that is, ingredients derived from fruit) or “fruit flavoring” (regardless of its source) other than apple or pear. This is consistent (aside from the inclusion of pear) with TTB's current policy with regard to fruit flavors. Accordingly, it is TTB's interpretation that wine is not eligible for the hard cider tax rate if it contains any fruit flavoring that imparts the flavor of a fruit other than apple or pear. The term “fruit flavoring” includes a natural fruit flavor, an artificial fruit flavor, and a natural flavor that artificially imparts the flavor of a fruit that is not contained in that flavor.

    Increase in Allowed Alcohol Content

    Prior to the effective date of the hard cider provisions of the PATH Act, wine is not eligible for the hard cider tax rate unless it contains less than 7 percent alcohol by volume. However, the definition of hard cider as modified by the PATH Act increases the allowable alcohol content to less than (not equal to) 8.5 percent alcohol by volume. The increase in the allowed alcohol content allows a broader range of products to be eligible for the hard cider tax rate, including products that are subject to the FAA Act labeling and permit requirements, which apply to wines that contain at least 7 percent alcohol by volume. The PATH Act did not amend the FAA Act, and this rule does not amend TTB's FAA Act permit or labeling requirements in 27 CFR parts 1 and 4, respectively.

    IV. Description of Regulatory Changes Regarding Tax Classification and Operations New Regulations Setting Forth Eligibility Criteria for the Hard Cider Tax Rate

    As a result of the PATH Act amendments to the definition of hard cider, TTB is amending its regulations in part 24 by adding a new Subpart P—Eligibility for the Hard Cider Tax Rate. New subpart P consists of two new sections, 27 CFR 24.331 and 24.332. Section 24.331 sets forth the statutory criteria for eligibility for the hard cider tax rate for wines removed on or after January 1, 2017, while § 24.332 elaborates on those criteria. Consistent with the TTB interpretation of the statutory text discussed above, § 24.332(a) provides that wine will be considered to be derived primarily from apples or pears, or from apple juice concentrate or pear juice concentrate and water, if the apple juice, pear juice, or combination of apple and pear juice, or the equivalent amount of concentrate of apple and/or pear juice reconstituted to the original brix of the juice prior to concentration, or any combination thereof, represents more than 50 percent of the volume of the finished product. Further, § 24.332(b)(1) provides that wine is not eligible for the hard cider tax rate if it contains any fruit product other than apple or pear. Consistent with current policy, § 24.332(b)(1) makes clear that a fruit product is any material derived or made from any fruit or part of a fruit, including but not limited to concentrates, extracts, juices, powders, or wine spirits, of any fruit or part of a fruit.

    New § 24.332(b)(2) provides that an authorized wine treating material set forth in § 24.246 that is derived from a fruit other than apple or pear may be used in the production of wine eligible for the hard cider tax rate if it is used for a purpose other than flavoring and it is either used in accordance with the wine treating materials provisions of § 24.246 (if used in a natural wine), or used in amounts insufficient to impart a fruit flavor other than apple or pear (if used in a special natural wine or other than standard wine). Any written or pictorial reference to a material derived from a fruit other than apple or pear (other than the inclusion of a wine treating material in an ingredient labeling statement) in the labeling or advertising of a wine will be treated as evidence that the wine treating material was added for the purpose of flavoring the wine.

    Further, new § 24.332(c) prohibits the use, in wine eligible for the hard cider tax rate, of any fruit flavoring that imparts the flavor of a fruit other than apple or pear. For purposes of this section, a flavoring that imparts the flavor of a fruit other than apple or pear includes a natural fruit flavor, an artificial fruit flavor, and a natural flavor that artificially imparts the flavor of a fruit that is not contained in that flavor.

    The preamble to T.D. ATF-470 provided that honey or spices would not disqualify an apple wine from the hard cider tax rate; however, language to that effect did not appear in any regulatory text. TTB is now incorporating such language in the new § 24.332(c) to make this position more easily accessible to industry members and the public. TTB has also received questions about the use of pumpkin flavors in cider. While pumpkins are botanically classified as fruit, they are treated as “vegetables” for several other purposes.6 It has been TTB's position that pumpkins are not “fruit” for purposes of part 24. Instead, wines made from pumpkins are classified as wines made from “other agricultural products” under 26 U.S.C. 5387 and 27 CFR 24.204. See, e.g., TTB Ruling 2016-2. Accordingly, in new § 24.332(c), TTB clarifies that the use of spices, honey, hops, or pumpkins as a flavoring will not make a wine ineligible for the hard cider tax rate.

    6 For example, the United States Department of Agriculture's National Nutrient Database for Standard Reference currently lists pumpkin in its “Vegetables and Vegetable Product” food group.

    New § 24.332(c) also provides that any written or pictorial reference to a fruit flavor other than apple or pear in the labeling or advertising of a wine that contains a flavoring will be treated as evidence that the wine contains a flavoring that imparts a fruit flavor other than apple or pear and thus the wine will not be eligible for the hard cider tax rate.

    The new definition in § 24.332, differing from the current definition of hard cider in § 24.10, does not require that hard cider have the taste, aroma, and characteristics generally attributed to hard cider. Nor does it require hard cider to be sold or offered for sale as hard cider. With regard to the reference to “taste, aroma, and characteristics generally attributed to hard cider,” these aspects of the definition have been removed because under the PATH Act, wine that is eligible for the hard cider tax rate may contain pear, which TTB believes is not a characteristic generally attributed to hard cider. With regard to the reference to hard cider having to be “sold or offered for sale as hard cider,” this aspect has been removed because a wine that meets the criteria of the hard cider tax class and is produced from just pears may be sold as “perry,” “pear wine,” or “hard perry.”

    Definitional Changes To Implement the PATH Act

    The IRC at section 5041(a) provides that “[s]till wines shall include those wines containing not more than 0.392 gram of carbon dioxide per hundred milliliters * * *.” Because wine classified as hard cider will no longer necessarily be a “still wine” after the PATH Act amendments take effect, and because hard ciders that are defined as “still wine” under section 5041(a) are not taxed as “still wine” under section 5041(b), TTB is adding a definition of “still hard cider” to § 24.10, and excluding “hard cider” from the definition of “still wine” in that section. As amended, part 24 will use the term “still wine” to refer to wine containing not more than 0.392 gram of carbon dioxide per 100 milliliters of wine that falls within one of the three tax classes applicable to still wine set forth at section 5041(b)(1), (b)(2), or (b)(3). The term “still hard cider,” when used in the regulations, is used to denote wine that is eligible for the hard cider tax rate at section 5041(b)(6) and that contains not more than 0.392 gram of carbon dioxide per 100 milliliters.

    Similarly, TTB is adding definitions of “artificially carbonated hard cider” and “sparkling hard cider” to describe wine that is eligible for the hard cider tax rate at section 5041(b)(6); that contains more than 0.392 but not more than 0.64 gram of carbon dioxide per 100 milliliters; and that is made effervescent either by artificial injection of carbon dioxide or solely by secondary fermentation within a closed container. Under this temporary rule, TTB is also excluding wine that is eligible for the hard cider tax rate from the definitions of “artificially carbonated wine,” and “sparkling wine or champagne” set forth in § 24.10.

    As a result of these definitional changes, there is no need to amend the regulations in 27 CFR 24.278(a), which provide that “champagne and other sparkling wine” are not eligible for the tax credit for certain small producers. This regulation is based on 26 U.S.C. 5041(c)(1), which disqualifies “wine described in subsection (b)(4)” from eligibility for the small producer credit. Wine described in section 5041(b)(4) is wine that is taxable at the rate prescribed for “champagne and other sparkling wines.” This temporary rule specifies that the term “sparkling wine” does not include hard cider that derives its effervescence solely from the secondary fermentation in a closed container (and contains no more than 0.64 gram of carbon dioxide per 100 milliliters of wine); thus, this wine is not precluded from eligibility for the small domestic producers credit described in § 24.278.

    These definitional changes also provide that wine that is eligible for the lower hard cider tax rate at section 5041(b)(6) is not subject to the higher tax rates for “still wine,” “sparkling wine,” or “artificially carbonated wine” at section 5041(b)(1)-(b)(5).

    TTB is incorporating the terms “artificially carbonated hard cider,” “artificially carbonated wine,” “sparkling hard cider” and “sparkling wine” in the definition of “effervescent wine” to make it clear that, when used in the regulations, “effervescent wine” includes all four terms. The new definition for the existing term “hard cider” cross-references the new definitions of “artificially carbonated hard cider,” “sparkling hard cider,” and “still hard cider,” and cites the new eligibility requirements set forth in § 24.331. TTB is removing the current eligibility criteria included in the definition of “Hard cider” at § 24.10 that interprets the law as it exists prior to the effective date of the hard cider provisions of the PATH Act.

    In addition to amending the definition of “artificially carbonated wine” to exclude wine eligible for the hard cider tax rate, TTB is replacing the reference in that definition to wine “artificially charged with carbon dioxide” with the phrase “artificially injected with carbon dioxide.” This change is not intended to substantively change the provision, but rather to be consistent with the description of wine carbonated by the injection of carbon dioxide used in 27 CFR 24.190. TTB also is amending a cross-reference to the FAA Act that appears in the definition of “cider” in § 24.10 to make clear that 27 CFR 4.21(e)(5) provides information regarding the labeling of wine that may be designated as “cider” under the FAA Act.

    Tolerance and Recordkeeping Requirements for Artificially Carbonated Hard Cider and Sparkling Hard Cider

    While there is no maximum allowed carbon dioxide level for wine falling within the sparkling wine and artificially carbonated wine tax classes, under the modified definition of hard cider, wine is not eligible for the hard cider tax rate if it contains more than 0.64 gram of carbon dioxide per 100 milliliters. As amended by the PATH Act, section 5041(g)(1) authorizes TTB to prescribe through regulation “such tolerances to this limitation as may be reasonably necessary in good commercial practice.” Current TTB regulations applicable to still wine with added carbon dioxide, at 27 CFR 24.245, prescribe a tolerance of not more than 0.009 gram per 100 milliliters where the amount of carbon dioxide in excess of 0.392 gram per 100 milliliters is due to mechanical variations that cannot be completely controlled under good commercial practice. In this temporary rule, TTB sets forth a new section, 27 CFR 24.251, and extends the same 0.009 gram per 100 milliliters tolerance to artificially carbonated hard cider and sparkling hard cider where the amount of carbon dioxide in excess of 0.64 gram per 100 milliliters is due to mechanical variations or secondary fermentation variations that cannot be completely controlled under good commercial practice. This tolerance will not be allowed where it is found that the proprietor continuously or intentionally exceeds 0.64 gram of carbon dioxide per 100 milliliters of artificially carbonated hard cider or sparkling hard cider or where the variation results from the use of methods or equipment determined by the appropriate TTB officer not to be in accordance with good commercial practice.

    Apple or pear wine that has in excess of 0.64 gram of carbon dioxide per 100 milliliters (unless covered by the allowed tolerance) will be classified and taxed at the applicable “sparkling wine” or “artificially carbonated wine” rate, see section 5041(b)(4) and (b)(5). Accordingly, TTB is amending 27 CFR 24.255(a) to specify that proprietors of a bonded wine premises or a taxpaid wine bottling house premises are responsible for the correct determination of the amount of carbon dioxide in artificially carbonated hard cider or sparkling hard cider. TTB is also amending § 24.302 to require that the amount of carbon dioxide in artificially carbonated hard cider or sparkling hard cider be included in the effervescent wine record, which is required to be kept by proprietors who produce or receive effervescent wine in bond.

    Conforming Amendments

    Other amendments maintain the existing treatment of still wine and effervescent wine, and apply certain requirements currently applicable to still wine to “still hard cider” and certain requirements currently applicable to artificially carbonated wine and sparkling wine to “artificially carbonated hard cider” and “sparkling hard cider,” respectively. These include amendments to 27 CFR 24.190, 24.191, 24.192, and 24.193 in subpart G (Production of Effervescent Wine); 27 CFR 24.225 and 24.234 in subpart K (Spirits); § 24.246 in subpart L (Storage, Treatment and Finishing of Wine); 27 CFR 24.266 in subpart M (Losses of Wine); §§ 24.290 and 24.291 in subpart N (Removal, Return and Receipt of Wine); 27 CFR 24.301, 24.302, 24.306, 24.308, and 24.319 in subpart O (Records and Reports).

    Along with conforming amendments to § 24.245, TTB also is removing a reference to “authorized test procedures” for determining the amount of carbon dioxide in still wine to which carbon dioxide has been added. Section 24.245 currently states that “[t]he proprietor shall determine the amount of carbon dioxide added to wine using authorized test procedures.” TTB's predecessor agency, ATF, published several authorized test procedures from 1971 to 1983. These are ATF Procedure 73-1 (authorizing the enzymatic method, the manometric method, and the volumetric method), ATF Procedure 77-2 (authorizing the infrared spectrophotometer method), and ATF Procedure 83-2 (authorizing the use of an automated thermal conductivity analyzer). Although TTB still views these methods as valid, TTB currently uses the enzymatic 7 and titrimetric 8 method to determine the carbon dioxide levels in wine.

    7 AOAC Official Method of Analysis 964.09 (17th Ed). See also https://www.ttb.gov/ssd/pdf/list_of_beverage_methods.pdf.

    8 AOAC Official Method of Analysis 988.07 (17th Ed). See also https://www.ttb.gov/ssd/pdf/list_of_beverage_methods.pdf.

    It is TTB's current policy that producers may use any method that has been formally validated (e.g., that underwent a multi-laboratory performance evaluation) or that is otherwise scientifically valid to determine the carbon dioxide levels in wine. (A scientifically valid method is, among other things, accurate, precise, and specific for its intended purpose, and it has results that are consistently reliable, accurate, and reproducible.) Accordingly, TTB is removing the language in § 24.245 that requires proprietors to use “authorized” test procedures, and is revoking ATF Procedure 73-1, ATF Procedure 77-2, and ATF Procedure 83-2.

    Finally, TTB is dividing the current text of 27 CFR 24.270, Determination of Tax, into paragraphs (a) and (b), and adding a new paragraph (c) to list the tax rates imposed on wine by 26 U.S.C. 5041(b). With respect to the hard cider tax rate at section 5041(b)(6), TTB is referencing the eligibility requirements set forth in new § 24.331. Also, TTB is incorporating in § 24.270(a) language from the definition of “wine” in § 24.10, which explains that a product containing less than one-half of one percent alcohol by volume is not taxable as wine.

    V. Labeling of Wine Eligible for the Hard Cider Tax Rate

    As noted above, TTB administers the labeling requirements of both the IRC and the FAA Act. TTB bases its labeling requirements in part 24 on section 5368(b) of the IRC, which gives the Secretary of the Treasury general authority to issue labeling regulations that require evidence of compliance with tax provisions.

    Labeling Requirements Prior to the Effective Date of Hard Cider Provisions of the PATH Act

    Current § 24.257 sets forth the requirements for labeling containers of wine, including wine eligible for the hard cider tax rate, for purposes of the IRC. In general, § 24.257 provides that proprietors must label each bottle or other container of beverage wine prior to removal for consumption or sale, and the label must show: (1) The name and address of the wine premises where the wine is bottled or packed, (2) the brand name, if it is different from the name shown in the name and address statement; (3) the alcohol content of the wine; (4) the kind of wine; and (5) the net contents of the container.

    Current § 24.257 provides that conformity with TTB's FAA Act labeling regulations found in part 4 of the TTB regulations is sufficient to identify the appropriate tax class. With regard to alcohol content, § 24.257(a)(3) provides that a label must state the alcohol content as percent by volume or in accordance with part 4.9

    9 Thus, for wines with less than 7 percent alcohol by volume, a numerical statement of the percentage of alcohol by volume must appear on the label. 27 CFR 4.32(b)(3) and 4.36 require alcohol content statements on labels. TTB notes that pursuant to § 4.36, in the case of fruit wine containing at least 7 percent but no more than 14 percent or less of alcohol by volume, the alcohol content need not be stated if the type designation “table wine” or “light wine” (without a numerical statement of alcohol content) appears on the brand label. Because “hard cider” is currently defined in part 24 as wine containing less than 7 percent alcohol by volume, “table wine” and “light wine” designations have been sufficient to identify FAA Act wine as ineligible for the hard cider tax rate.

    Current § 24.257(a)(4) also sets out parameters for how the kind of wine should be presented on a label.10 Wine that contains at least 7 percent alcohol by volume and requires label approval under the FAA Act must be labeled with the “kind” of wine in accordance with part 4.11 See § 24.257(a)(4)(i).

    10 TTB notes that 27 CFR 24.259 requires each container larger than 4 liters or each case used to remove wine for consumption or sale to be durably marked with the kind of wine, stated in accordance with § 24.257.

    11 Under 27 CFR part 4, wine that requires label approval must be labeled “sparkling” or “carbonated,” if applicable, see §§ 4.32(a)(2) (requiring the class, type or other designation on wine labels), 4.34 and 4.22 (requiring a truthful and adequate statement of composition if the wine is not defined in 27 CFR 4.21), and 4.21 (setting forth standards of identity for wine and requiring the words “sparkling” or “carbonated” when applicable).

    For wine that contains less than 7 percent alcohol by volume or is the subject of a certificate of exemption from the COLA requirements in part 4, a statement of composition is required to be on the label in order to adequately identify the wine. See § 24.257(a)(4)(ii) and (iii).

    The regulations in § 24.257(a)(4)(iv) provide that the statement of composition must include enough information to identify the tax class when viewed with the alcohol content. There are several components to this requirement.

    • First, the wine should be identified by the word “wine,” “mead,” “cider,” or “perry,” as applicable.

    • Second, if the wine contains more than 0.392 gram of carbon dioxide per 100 milliliters, the word “sparkling” or “carbonated,” as applicable, must be included in the statement of composition.

    • Third, if the statement of composition leaves doubt as to the tax class of the wine, the wine must be marked with an appropriate tax class statement (such as the statement “tax class 5041(b)(1) IRC”).

    Section 24.257(a)(4)(iv) provides examples of labels that would or would not leave doubt as to the tax class of the wines. For example, a still wine labeled as “raspberry hard cider” and “9 percent alcohol by volume” is adequately marked to designate the tax class specified in section 5041(b)(1), which is the tax class for “still wines containing not more than 14 percent of alcohol by volume.” That information is sufficient because the wine is clearly not eligible for the hard cider tax rate under current law on two different grounds—it contains raspberries or raspberry flavor, and it is 9 percent alcohol by volume. This example also illustrates that the terms “cider” and “hard cider,” by themselves, do not indicate that a wine is eligible for the hard cider tax rate. Thus, the regulations provide the example of a still wine marked “cider” or “hard cider” and “6 percent alcohol by volume.” Under current regulations, that wine is adequately marked if it is eligible for the hard cider tax rate, but if it is not eligible for the hard cider tax rate, it is not adequately marked to identify its tax class as falling under section 5041(b)(1), so the tax class must be shown.

    As mentioned earlier in this preamble, the current regulations were issued after ATF received comments in opposition to T.D. ATF-398, which would have required use of the term “hard cider” on products eligible for the hard cider tax rate, and prohibited use of the “hard cider” designation on products not eligible for the hard cider tax rate, including all wines subject to the FAA Act. Accordingly, ATF solicited comments on and adopted an alternative proposal, that allowed use of the term “hard cider” on products over 7 percent alcohol by volume.

    For products under 7 percent alcohol by volume, ATF wanted to differentiate between ciders that are eligible for the hard cider tax rate and those that are taxable as still wine containing not more than 14 percent alcohol by volume. Some producers have marketed eligible products as “draft cider,” “fermented cider” or “apple cider” and did not wish to use the term “hard cider” on labels. Some producers marketed mixed-fruit ciders or low-alcohol ciders that were otherwise excluded from the current definition of hard cider under the name “hard cider” and did not wish to rename their products. Accordingly, ATF proposed, where the words on the label leave doubt as to the tax class, that cider makers must include a reference to the tax class by section of the law. ATF noted that this wording was similar to the wording of 27 CFR 25.242, on marking nontaxable cereal beverages. ATF requested industry and consumer comments on these proposals.

    In general, the commenters supported ATF's proposal to allow more flexibility in naming hard cider and related products. ATF also noted that it had requested suggestions for other ways of identifying the tax class, but received no suggestions. As a result, the final rule allowed the use of the term “hard cider” on labels of products that do not belong to the hard cider tax class, as long as other information on the label allows for the identification of the appropriate tax class.

    Need for Revised Labeling Requirements To Implement the PATH Act for the Hard Cider Tax Class

    As previously noted, current regulations require wines to be labeled with the “kind” of wine, and provide that wines that are not subject to FAA Act labeling requirements must be labeled with a statement of composition that, when viewed with the alcohol content, includes enough information to identify the tax class. Under the statutory definition of “hard cider” as it stood prior to the effective date of the hard cider provisions of the PATH Act, this flexibility makes sense. Among other things, any wine eligible for the “hard cider” tax rate under current law must be a still wine, and must have less than 7 percent alcohol by volume. Thus, wines subject to the labeling requirements of the FAA Act are, by definition, ineligible for the hard cider tax rate if removed prior to January 1, 2017. Similarly, sparkling wines and carbonated wines are, by definition, ineligible for the hard cider tax rate.

    Under the definition of hard cider set forth in the PATH Act, wine taxed at the hard cider tax rate may contain a higher alcohol content (less than 8.5 percent instead of less than 7 percent alcohol by volume) and may be effervescent (containing not more than 0.64 gram of carbon dioxide per 100 milliliters of wine). Under the modified definition, wine may also contain pears in addition to or in place of apples. This affects how the product must be labeled to provide sufficient information to identify the appropriate tax class.

    For example, under the modified definition of hard cider, wines that are subject to the FAA Act labeling regulations may be taxed at the hard cider tax rate. The current regulations in § 24.257 do not require wines labeled in accordance with the FAA Act to include enough information to identify the tax class. Such a requirement was not necessary when the definition of hard cider excluded any wines containing 7 percent or more alcohol by volume. Because some (but not all) apple or pear wines subject to the FAA Act labeling regulations may be taxed at the hard cider tax rate under the IRC as modified by the PATH Act, it is now necessary to include language in § 24.257 to require wines (including hard cider) labeled in accordance with the FAA Act labeling regulations to also include enough information to identify the tax class. A designation such as “apple table wine” for a wine subject to the FAA Act will no longer suffice to identify whether the wine is eligible for the hard cider tax rate, because it will not identify whether the wine has less than 8.5 percent alcohol by volume.

    Similarly, the hard cider tax class is no longer restricted to still wines. Under current regulations, a “sparkling” or “carbonated” wine statement suffices to indicate that the wine was not eligible for the hard cider tax rate. Under the standards as modified by the PATH Act, some, but not all, sparkling and carbonated apple and/or pear wines may be eligible for the hard cider tax rate. Thus, knowing that an apple and/or pear wine is sparkling or carbonated does not resolve the question of whether it is eligible for the hard cider rate, and such wines are unlikely to be labeled with the exact level of carbon dioxide per 100 milliliters of wine.

    Finally, the use of terms such as “apple” or “pear” wine, or “cider,” “hard cider,” or “perry” may suggest the hard cider tax class, but do not necessarily indicate that the product is eligible for such a classification. Furthermore, a statement of composition such as “apple cider with natural flavors” or “honey pear wine” does not necessarily indicate the tax class.

    VI. Description of Regulatory Changes Regarding Labeling

    Accordingly, TTB is amending its regulations in parts 24 and 27 to require the statement “Tax class 5041(b)(6)” on the container of any wine for which the hard cider tax rate is claimed. TTB recognizes that industry members who currently produce or import hard cider will need time to comply with such a requirement, and TTB is therefore providing a one-year grace period before the requirement goes into effect.

    Amendments to Part 24

    As mentioned above, TTB is amending § 24.257 to impose a new labeling requirement for wines eligible for the hard cider tax rate.

    As amended by this temporary rule, § 24.257(a)(4) is reorganized. Section 24.257(a)(4)(i) addresses wines that require label approval under the FAA Act. Consistent with current regulations, § 24.257(a)(4)(i)(A), which takes effect for wines removed on or after January 1, 2017, provides that if a wine contains 7 percent or more alcohol by volume and must have label approval under part 4, the required designation of the wine is the class, type or other designation provided in part 4. Section 24.257(a)(4)(i)(B) provides specific labeling rules for those products taxed at the “hard cider” tax rate. Section 24.257(a)(4)(i)(B)(1) provides, as part of a transitional rule for “hard cider” removed on or after January 1, 2017 and prior to January 1, 2018, that such wines may include the statement “Tax class 5041(b)(6)” on the label to adequately identify the appropriate tax class. For products removed from wine premises on or after January 1, 2018, that are taxed at the “hard cider” tax rate, the designation must also include the statement “Tax class 5041(b)(6).” This statement may appear anywhere on the label.

    With regard to wines, including hard cider, that do not require label approval, § 24.257(a)(4)(ii) includes both a rule that takes effect for all wines removed on or after January 1, 2017 and additional labeling rules for hard cider that take effect for products removed on or after January 1, 2018.

    The general rule for wine that does not require label approval (either because it is covered by a certificate of exemption from label approval or because it contains less than 7 percent alcohol by volume) is provided in new § 24.257(a)(4)(ii)(A). This kind of wine must bear a designation that includes enough information (when viewed with the alcohol content statement) to identify the tax class under section 5041. The wine must be identified by the term “wine” (or a word that signifies a type of wine, such as “cider,” “perry,” or “mead,” as applicable). If the wine contains more than 0.392 gram of carbon dioxide per 100 milliliters, the word “sparkling” or “carbonated,” as applicable, must be included in the designation.

    Section 24.257(a)(4)(ii)(A)(1) provides additional labeling rules effective for “hard cider” removed from wine premises on or after January 1, 2017. These rules provide that the designation for such products must be consistent with a hard cider tax classification. For example, the designations “hard cider,” “hard perry,” “apple wine,” “pear wine,” “apple cider,” “apple perry,” “apple pear wine,” “cider,” and “perry” are consistent with a hard cider tax classification. The designation “blueberry cider” is not consistent with a hard cider tax classification, because it indicates that the product contains either blueberries or blueberry flavors, which are not authorized for use in wine that is eligible for the hard cider tax class. If the hard cider contains more than 0.392 gram of carbon dioxide per 100 milliliters, the word “sparkling” or “carbonated,” as applicable, must be on the label.

    Section 24.257(a)(4)(ii)(A)(2) provides a transitional rule for wines removed on or after January 1, 2017 and prior to January 1, 2018. For these wines, a label will not be deemed out of compliance with § 24.257(a)(4)(ii)(A) solely because the label does not provide enough information to identify whether the wine is eligible for a “hard cider” tax classification. On an optional basis, wines eligible for the “hard cider” tax class may include the statement “Tax class 5041(b)(6)” on the label to adequately indicate the appropriate tax class.

    Section 24.257(a)(4)(ii)(A)(3) provides additional labeling rules effective for “hard cider” removed from wine premises on or after January 1, 2018. The regulations provide that the label must also include the statement “Tax class 5041(b)(6).”

    Finally, TTB modified and moved the existing cross-reference to the FDA labeling rules applicable to wines containing less than 7 percent alcohol by volume to § 24.257(a)(4)(ii)(B). Similarly, the existing cross-reference to the health warning statement requirements found in part 16 was modified and moved to § 24.257(a)(6).

    Amendments to Part 27

    The amendments to the definition of “hard cider” in the PATH Act apply to imported wine as well as to wine produced in the United States. Accordingly, TTB is amending part 27, which applies to imported wine, by adding a new definition of “hard cider” to section 27.11. Consistent with the definition in part 24, the term “hard cider” is defined for imported wines as a wine that meets the eligibility requirements set forth in § 24.331 for the hard cider tax rate set forth in § 24.270.

    The labeling regulations for imported wine in 27 CFR 27.59 are also amended by redesignating the existing regulation as § 27.59(a) and adding a new § 27.59(b). The new regulation provides that the container of any imported wine eligible for the “hard cider” tax classification set forth in § 24.270 of this chapter must be labeled in accordance with the requirements applicable to wine containers removed from wine premises under § 24.257(a)(4) of this chapter. The regulation also provides a cross-reference to § 24.331 for the eligibility requirements for the hard cider tax rate. Thus, this temporary rule provides that the labeling requirements for imported hard cider are the same as the labeling requirements for hard cider produced in the United States.

    Regulatory Analysis and Notices Public Participation

    To submit comments on the regulatory provisions contained in this temporary rule, including the labeling provisions and any alternatives to requiring “Tax Class 5041(b)(6)” on the label, please refer to the notice of proposed rulemaking on this subject published in the “Proposed Rules” section of this issue of the Federal Register.

    Executive Order 12866

    Certain TTB regulations issued under the IRC, including this one, are exempt from the requirements of Executive Order 12866, as supplemented and reaffirmed by Executive Order 13563. Therefore, a regulatory impact assessment is not required.

    Regulatory Flexibility Act

    In accordance with the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), TTB certifies that this temporary rule will not have a significant economic impact on a substantial number of small entities. The temporary rule will not impose, or otherwise cause, a significant increase in reporting, recordkeeping, or other compliance burdens on a substantial number of small entities.

    The temporary rule implements certain changes made to the Internal Revenue Code of 1986 by the Protecting Americans from Tax Hikes Act of 2015 (see Pub. L. 114-113, Division Q, section 335). These statutory changes broaden the definition of hard cider, which means that more products will be eligible for the lower rate of tax applicable to hard cider. However, to ensure that labels and records adequately reflect the correct tax class of hard cider products, the temporary rule includes provisions that will require certain labeling changes, and will require producers of artificially carbonated hard cider and sparkling hard cider to test for carbon dioxide levels and keep records of those tests. These requirements flow directly from the new statutory criteria for eligibility for the hard cider tax rate. Accordingly, any increased burden associated with establishing eligibility for the hard cider tax rate flows directly from the statutory changes that prescribe the criteria for eligibility. The temporary rule provides industry members with a one-year transition period to make the required labeling changes, thus reducing the burden on industry members.

    Pursuant to section 7805(f) of the IRC (26 U.S.C. 7805(f)), TTB will submit the temporary regulations to the Chief Counsel for Advocacy of the Small Business Administration for comment on the impact of the temporary regulations on small businesses.

    Paperwork Reduction Act

    Nine of the regulatory sections addressed in this temporary rule contain collections of information that have been previously reviewed and approved by the Office of Management and Budget (OMB) in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3507) and assigned control numbers 1513-0009, 1513-0088, 1513-0092, and 1513-0115. Those sections are 27 CFR 24.255, 24.257, 24.266, 24.291, 24.301, 24.302, 24.306, 24.308, and 24.319. No changes are being made to the existing approved information collections.

    In this temporary rule, TTB is proposing two new recordkeeping requirements, and TTB has received OMB approval for these two requirements under two new OMB control numbers. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a valid control number assigned by OMB.

    The first new recordkeeping requirement is contained in new paragraphs (a)(4)(i)(B)(2) and (a)(4)(ii)(A)(3) of § 24.257 and paragraph (b) of § 27.59. Specifically, the new information collection will require that industry members who remove wine to which the hard cider tax rate applies place a specific statement, “Tax class 5041(b)(6),” on containers of such wine, in order to adequately identify the applicable tax rate. Under § 24.257(a)(4)(i)(B)(2) and (a)(4)(ii)(A)(3) and § 27.59, this new requirement is imposed on such wine removed on or after January 1, 2018. TTB has determined that this statement is necessary for the enforcement of the Internal Revenue Code, and it is the simplest and clearest way to identify these products without any confusion with other tax classes of wine and without requiring any other changes to statements that industry members may be using or wish to use to identify their products. The delayed effective date provides sufficient time for affected industry members to bring their labels into compliance with the new requirement.

    In 2015, 457 domestic manufacturers removed wine that was eligible for the hard cider tax class from their premises. TTB estimates that in addition to those industry members who removed wine eligible for the hard cider tax rate from their premises in 2015, potentially 20 percent more (or 91 manufacturers for a total of 548) may be interested in removing such wine from their premises given the new provisions applicable in 2017. Additionally, in 2015, according to U.S. Customs and Border Protection entry data, TTB determined that 191 importers obtained release from customs custody of products that were identified as cider under the Harmonized Tariff Schedule of the United States (HTSUS). TTB estimates that in addition to those importers who removed cider from customs custody in 2015, another 20 percent (or 38 importers for a total of 229 importers) will be interested in importing products that fall under that HTSUS code starting in 2017. Accordingly, TTB estimates that there are approximately 777 industry members (manufacturers and importers combined) who will be required to comply with this marking requirement. TTB estimates that each industry member will have a one-time burden of one hour to come into compliance with this information collection, but that the continued compliance burden will be negligible. Therefore, TTB estimates that 777 respondents will respond an average of once per year to this information collection, for a total estimate annual burden of 777 hours.

    Estimated number of respondents: 777.

    Estimated average total annual burden hours: 777.

    The second new recordkeeping requirement is contained in new paragraph (k) of § 24.302. Specifically, the new recordkeeping requirement will require proprietors who produce artificially carbonated hard cider and sparkling hard cider to maintain a record of the amount of carbon dioxide contained in the wine. This new requirement is imposed on such wine removed on or after January 1, 2017. TTB has determined that this recordkeeping requirement is necessary for demonstrating compliance with the statutory requirement that, to be eligible for the hard cider tax rate, among other things, the wine must contain no more than 0.64 gram of carbon dioxide per 100 milliliters of wine.

    Like the tax class statement requirement, TTB estimates that there are 548 domestic manufacturers who must comply with this new recordkeeping requirement. TTB's laboratory estimates that it will take each industry member on average four hours to test the level of carbon dioxide in the wine using either the titrimetric or enzymatic test method. TTB also estimates that it will take an additional 15 minutes to record the level of carbon dioxide in the wine for a total of four hours and 15 minutes to test and record the carbon dioxide for one batch of artificially carbonated hard cider or sparkling hard cider. TTB is also estimating that each industry member will perform this recordkeeping requirement for 25 batches over one year. This equals 106.25 burden hours for each industry member in one year, for a total of 58,225 burden hours.

    Estimated number of respondents: 548.

    Estimated average total annual burden hours: 58,225.

    As noted above, TTB has submitted these new information collection requirements to the OMB for review. Comments on this new recordkeeping requirement should be sent to OMB at Office of Management and Budget, Attention: Desk Officer for the Department of the Treasury, Office of Information and Regulatory Affairs, Washington, DC 20503 or by email to [email protected] A copy should also be sent to TTB by any of the methods described in the notice of proposed rulemaking related to this temporary rule published elsewhere in this issue of the Federal Register. Comments on the information collection should be submitted no later than March 24, 2017. Comments are specifically requested concerning:

    • Whether the collection of information submitted to OMB is necessary for the proper performance of the functions of the Alcohol and Tobacco Tax and Trade Bureau, including whether the information will have practical utility;

    • The accuracy of the estimated burden associated with the collection of information submitted to OMB; and

    • How to enhance the quality, utility, and clarity of the information to be collected.

    Inapplicability of Prior Notice and Public Comment and Delayed Effective Date Procedures

    Based on the January 1, 2017, effective date of the PATH Act amendments to section 5041 of the IRC, TTB believes that proper administration and enforcement of those provisions necessitate the immediate adoption of implementing regulations as a temporary rule.

    TTB is issuing this temporary rule without prior notice and comment pursuant to authority under section 4(a) of the Administrative Procedure Act, as amended (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and comment when a rule is interpretive or when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.”

    The majority of the regulatory provisions contained in this temporary rule are exempt from prior notice and comment because they are interpretive.

    TTB finds that it has good cause to dispense with prior notice and comment for the substantive provisions of this rule that set forth labeling requirements, recordkeeping requirements for artificially carbonated hard cider and sparkling hard cider, and a carbon dioxide tolerance for artificially carbonated hard cider and sparkling hard cider. Because this document implements provisions of law that are effective on January 1, 2017, and because immediate guidance is necessary to implement these provisions, it is found to be impracticable to issue this Treasury decision with prior notice and public procedure under 5 U.S.C. 553(b). TTB is also including in this temporary rule additional labeling rules effective for “hard cider” removed from wine premises on or after January 1, 2018 (see § 24.257(a)(4)(i)(B)(2) and (a)(4)(ii)(A)(3)) and for imported wines removed on or after January 1, 2018 (see § 27.59(b)), to provide certainty to industry members regarding how they will be required to identify the appropriate tax class of their products.

    TTB is issuing this temporary rule without a delayed effective date pursuant to authority under section 4(c) of the APA (5 U.S.C. 553(d)). TTB finds good cause under 5 U.S.C. 553(d)(3) to dispense with the effective date limitation in 5 U.S.C. 553(d). A 30-day delayed effective date is impracticable because this temporary rule implements statutory changes that are effective after December 31, 2016. Accordingly, the effective date of this temporary rule is January 1, 2017.

    TTB is providing a delayed effective date for the requirement that all wine that qualifies for the hard cider tax rate must be labeled with “Tax class 5041(b)(6)” (see § 24.257(a)(4)(i)(B)(2) and (a)(4)(ii)(A)(3) and § 27.59(b)) in order to provide the industry with sufficient time to make arrangements for compliance. This requirement is effective January 1, 2018.

    Drafting Information

    Dana Register and Kara Fontaine of the Regulations and Rulings Division drafted this document with the assistance of other Alcohol and Tobacco Tax and Trade Bureau personnel.

    List of Subjects 27 CFR Part 24

    Administrative practice and procedure, Cider, Claims, Electronic funds transfers, Excise taxes, Exports, Food additives, Fruit juices, Hard Cider, Labeling, Liquors, Packaging and containers, Reporting and recordkeeping requirements, Research, Scientific equipment, Spices and flavorings, Surety bonds, Vinegar, Warehouses, Wine.

    27 CFR Part 27

    Alcohol and alcoholic beverages, Beer, Cosmetics, Customs duties and inspections, Electronic funds transfers, Excise taxes, Imports, Labeling, Liquors, Packaging and containers, Reporting and Recordkeeping requirements, Wine.

    Amendments to the Regulations

    For the reasons discussed in the preamble, TTB is amending 27 CFR chapter I, parts 24 and 27 as follows:

    PART 24—WINE 1. The authority citation for part 24 continues to read as follows: Authority:

    5 U.S.C. 552(a); 26 U.S.C. 5001, 5008, 5041, 5042, 5044, 5061, 5062, 5121, 5122-5124, 5173, 5206, 5214, 5215, 5351, 5353, 5354, 5356, 5357, 5361, 5362, 5364-5373, 5381-5388, 5391, 5392, 5511, 5551, 5552, 5661, 5662, 5684, 6065, 6091, 6109, 6301, 6302, 6311, 6651, 6676, 7302, 7342, 7502, 7503, 7606, 7805, 7851; 31 U.S.C. 9301, 9303, 9304, 9306.

    2. In § 24.10: a. The definition of “Artificially carbonated hard cider” is added in alphabetical order; b. The definitions of “Artificially carbonated wine”, “Cider”, “Effervescent wine”, and “Hard cider” are revised; c. The definition of “Sparkling hard cider” is added in alphabetical order; d. The definition of “Sparkling wine or champagne” is revised; e. The definition of “Still hard cider” is added in alphabetical order; and f. The definition of “Still wine” is revised.

    The revisions and additions read as follows:

    § 24.10 Meaning of terms.

    Artificially carbonated hard cider. Hard cider artificially injected with carbon dioxide and containing more than 0.392 but not more than 0.64 gram of carbon dioxide per 100 milliliters.

    Artificially carbonated wine. Wine (other than hard cider) artificially injected with carbon dioxide and containing more than 0.392 gram of carbon dioxide per 100 milliliters.

    Cider. See definitions for hard cider and tax exempt cider. For the labeling of wine that may be designated as “cider” under the Federal Alcohol Administration Act, see § 4.21(e)(5) of this chapter.

    Effervescent wine. A wine containing more than 0.392 gram of carbon dioxide per 100 milliliters, including artificially carbonated hard cider, artificially carbonated wine, sparkling hard cider, and sparkling wine.

    Hard cider. A wine that meets the eligibility requirements set forth in § 24.331 for the hard cider tax rate set forth in § 24.270. See the definitions for artificially carbonated hard cider, sparkling hard cider, and still hard cider.

    Sparkling hard cider. Hard cider containing more than 0.392 but not more than 0.64 gram of carbon dioxide per 100 milliliters of wine, resulting solely from the secondary fermentation of the wine within a closed container.

    Sparkling wine or champagne. Wine (other than hard cider) containing more than 0.392 gram of carbon dioxide per 100 milliliters of wine resulting solely from the secondary fermentation of the wine within a closed container.

    Still hard cider. A hard cider containing not more than 0.392 gram of carbon dioxide per 100 milliliters.

    Still wine. Wine (other than hard cider) containing not more than 0.392 gram of carbon dioxide per 100 milliliters.

    3. Section 24.190 is revised to read as follows:
    § 24.190 General.

    (a) Effervescent wine may be made on bonded wine premises. Where the effervescence results from fermentation of the wine within a closed container, the wine is classified and taxed as sparkling wine or as hard cider, as applicable. In such wine, the use of carbon dioxide, nitrogen gas, or a combination of both, is permitted to maintain counterpressure during transfer and bottling. Wine carbonated by injection of carbon dioxide is classified and taxed as artificially carbonated wine or as hard cider, as applicable. (For wine to be classified and taxed at the hard cider tax rate, it must meet the requirements set forth in § 24.331, including the limitation of not more than 0.64 gram of carbon dioxide per 100 milliliters.)

    (b) Effervescent wine and any wine used as a base in the production of effervescent wine may not have an alcohol content in excess of 14 percent by volume. However, wine containing more than 14 percent alcohol by volume may be used in preparing a dosage for finishing effervescent wine.

    (Sec. 201, Pub. L. 85-859, 72 Stat. 1383, as amended (26 U.S.C. 5382))
    4. Section 24.191 is revised to read as follows:
    § 24.191 Segregation of operations.

    Where more than one process of producing effervescent wine is used, the appropriate TTB officer may require the portion of the premises used for the production and storage of wine made by each process (bottle fermenting, bulk fermenting, or injecting carbon dioxide) to be segregated as provided by § 24.27.

    (Sec. 201, Pub. L. 85-859, 72 Stat. 1381, as amended (26 U.S.C. 5365))
    § 24.192 [Amended]
    5. Section 24.192 is amended by: a. Adding the words “or still hard cider” after the words “still wine” in the first sentence; b. Removing the words “sparkling wine or artificially carbonated wine” wherever they appear in the first six sentences of the section and adding, in their place, the words “effervescent wine”; c. Removing the word “which” in the sixth sentence and adding, in its place, the word “that”; and d. Adding the words “or sparkling hard cider” after the words “sparkling wine” in the last sentence.
    § 24.193 [Amended]
    6. Section 24.193 is amended by: a. Adding the words “or still hard cider” after the words “still wine” in the section heading; b. Removing the words “Sparkling wine or artificially carbonated wine” and adding, in their place, the words “Effervescent wine”; and c. Adding the words “or still hard cider” after the words “still wine”.
    § 24.225 [Amended]
    7. Section 24.225 is amended by adding the words “or natural still hard cider” after the words “still wine”.
    § 24.234 [Amended]
    8. Section 24.234 is amended by removing the words “sparkling wine, artificially carbonated wine” and adding, in their place, the words “effervescent wine”. 9. Section 24.245 is revised to read as follows:
    § 24.245 Use of carbon dioxide in still wine and still hard cider.

    (a) Use of carbon dioxide. The addition of carbon dioxide to (and retention of carbon dioxide in) still wine and still hard cider is permitted if at the time of removal for consumption or sale, the still wine or still hard cider does not contain more than 0.392 gram of carbon dioxide per 100 milliliters of wine.

    (b) Tolerance limit. A tolerance of not more than 0.009 gram per 100 milliliters to the maximum limitation of carbon dioxide in still wine and still hard cider will be allowed where the amount of carbon dioxide in excess of 0.392 gram per 100 milliliters is due to mechanical variations that cannot be completely controlled under good commercial practice. A tolerance will not be allowed where it is found by the appropriate TTB officer that the proprietor continuously or intentionally exceeds 0.392 gram of carbon dioxide per 100 milliliters of wine or where the variation results from the use of methods or equipment determined by the appropriate TTB officer to be not in accordance with good commercial practice.

    (c) Penalties. Penalties are provided in 26 U.S.C. 5662 for any person who, whether by manner of packaging or advertising or by any other form of representation, misrepresents any still wine or still hard cider to be effervescent wine or a substitute for effervescent wine.

    (d) Records. Records for the use of carbon dioxide in still wine must be maintained in accordance with § 24.319 of this section.

    (Sec. 201, Pub. L. 85-859, 72 Stat. 1331, as amended, 1381, as amended, 1407, as amended (26 U.S.C. 5041, 5367, 5662))
    § 24.246 [Amended]
    10. Section 24.246 is amended by removing the words “sparkling wines” from the description of the use of ammonium phosphate in the “Materials and use column” of the table, and adding, in their place, the words “sparkling wine or sparkling hard cider”. 11. Section 24.251 is added immediately after § 24.250 to read as follows:
    § 24.251 Tolerance for artificially carbonated hard cider and sparkling hard cider.

    (a) Tolerance. A tolerance of not more than 0.009 gram per 100 milliliters to the maximum limitation of carbon dioxide in artificially carbonated hard cider and sparkling hard cider will be allowed where the amount of carbon dioxide in excess of 0.64 gram per 100 milliliters is due to mechanical variations or secondary fermentation variations that cannot be completely controlled under good commercial practice. A tolerance will not be allowed where it is found by the appropriate TTB officer that the proprietor continuously or intentionally exceeds 0.64 gram of carbon dioxide per 100 milliliters of artificially carbonated hard cider or sparkling hard cider or where the variation results from the use of methods or equipment determined by the appropriate TTB officer to be not in accordance with good commercial practice. (See Subpart P of this part for the definition of hard cider for purposes of determining eligibility for the hard cider tax rate.)

    (b) Records. See § 24.302 of this chapter for recordkeeping requirements.

    (Sec. 335, Pub. L. 114-113, 129 Stat. 3109, as amended (26 U.S.C. 5041)
    § 24.255 [Amended]
    12. In § 24.255(a), the first sentence is revised by adding, after the word “removed”, the words “as well as for the correct determination of carbon dioxide in artificially carbonated hard cider and in sparkling hard cider”, and the Office of Management and Budget control number reference is revised by removing the numbers “1512-0298 and 1512-0503” and adding, in their place, the numbers “1513-0115 and 1513-0092”. 13. Section 24.257 is amended by: a. Revising paragraph (a)(4); b. Adding paragraph (a)(6); and c. Revising the Office of Management and Budget control number reference.

    The revisions and addition read as follows:

    § 24.257 Labeling wine containers.

    (a) * * *

    (4) An appropriate designation of the kind of wine, as follows:

    (i) Wines that require label approval—(A) General. If the wine contains 7 percent or more alcohol by volume and must have label approval under 27 CFR part 4, the designation is the class, type, or other designation required by that part.

    (B) Labeling rules for wines eligible for the “hard cider” tax class—(1) Transitional rule for “hard cider” removed on or after January 1, 2017 and prior to January 1, 2018. On an optional basis, wines that are taxed at the “hard cider” tax rate may include the statement “Tax class 5041(b)(6)” on the label to adequately indicate the appropriate tax class.

    (2) Additional labeling rules effective for “hard cider” removed from wine premises on or after January 1, 2018. For wines removed from wine premises on or after January 1, 2018 that are taxed at the “hard cider” tax rate, the label must also include the statement “Tax class 5041(b)(6).” This statement may appear anywhere on the label.

    (ii) Wines that do not require label approval—(A) Adequate designation. If the wine is not subject to label approval under 27 CFR part 4 because it either is covered by a certificate of exemption from label approval or contains less than 7 percent alcohol by volume, its label must bear a designation that includes enough information (when viewed with the alcohol content statement) to identify the tax class under 26 U.S.C. 5041. The wine must be identified by the term “wine” (or a word that signifies a type of wine, such as “cider,” “perry,” or “mead,” as applicable). If the wine contains more than 0.392 gram of carbon dioxide per 100 milliliters, the word “sparkling” or “carbonated,” as applicable, must be included in the designation.

    (1) Additional labeling rules effective for wines eligible for the “hard cider” tax class. For wines removed from wine premises on or after January 1, 2017, that are taxed at the “hard cider” tax rate, the designation must be consistent with a hard cider tax class. For example, the designations “hard cider,” “hard perry,” “apple wine,” “pear wine,” “apple cider,” “apple perry,” “apple pear wine,” “cider” and “perry” are consistent with the hard cider tax class. The designation “blueberry cider” is not consistent with the hard cider tax class, because it indicates that the product contains either blueberries or blueberry flavors, which are not authorized for use in wine that is eligible for the hard cider tax class. If the hard cider contains more than 0.392 gram of carbon dioxide per 100 milliliters, the word “sparkling” or “carbonated,” as applicable, must be on the label.

    (2) Transitional rule for wines removed on or after January 1, 2017 and prior to January 1, 2018. For wines removed on or after January 1, 2017 and prior to January 1, 2018, a label will not be deemed out of compliance with § 24.257(a)(4)(ii)(A) on the sole ground that the label does not provide enough information to identify whether the wine is eligible for a “hard cider” tax classification. On an optional basis, wines eligible for the “hard cider” tax class may include the statement “Tax class 5041(b)(6)” on the label to adequately indicate the appropriate tax class.

    (3) Additional labeling rules effective for “hard cider” removed from wine premises on or after January 1, 2018. For wines removed from wine premises on or after January 1, 2018, that are taxed at the “hard cider” tax rate, the label must also include the statement “Tax class 5041(b)(6).” This statement may appear anywhere on the label.

    (B) Cross reference. For additional labeling rules applicable to wines containing less than 7 percent alcohol by volume, see the food labeling regulations issued by the U.S. Food and Drug Administration.

    (6) Cross reference. For regulations requiring a health warning statement on the container of any alcoholic beverage containing not less than one-half of one percent alcohol by volume, see part 16 of this chapter.

    (Approved by the Office of Management and Budget under control numbers 1513-0115 and 1513-XXXX)
    14. Section 24.266 is amended by revising paragraph (b)(2) and the reference to the Office of Management and Budget control number, to read as follows:
    § 24.266 Inventory losses.

    (b) * * *

    (2)(i)(A) Where the loss of wine on bonded wine premises during the annual period exceeds three percent of the aggregate volume of wine on-hand at the beginning of the annual period and the volume of wine received in bond during the annual period;

    (B) The loss exceeds six percent of the still wine or still hard cider produced by fermentation;

    (C) The loss exceeds six percent of the sparkling wine or sparkling hard cider produced by fermentation in bottles;

    (D) The loss exceeds three percent of the special natural wine produced under § 24.195 or other wine produced under § 24.218;

    (E) The loss exceeds three percent of the artificially carbonated wine or artificially carbonated hard cider produced; or

    (F) The loss exceeds three percent of the bulk process sparkling wine or bulk process sparkling hard cider produced.

    (ii) The percentage applicable to each tax class of wine will be calculated separately, unless the calculation is impracticable because of the mixture of different tax classes by addition of wine spirits or blending during the annual period, in which case the percentage will be calculated on the aggregate volume. Wine removed immediately after production for use as distilling material and on which the usual racking, clarifying, and filtering losses are not sustained, will not be included in the calculations.

    (Approved by the Office of Management and Budget under control number 1513-0088)
    15. Section 24.270 is revised to read as follows:
    § 24.270 Determination of tax.

    (a) General. The tax on wine is determined at the time of removal from a bonded wine premises for consumption or sale. Section 5041 of 26 U.S.C., imposes an excise tax, at the rates prescribed, on all wine (including imitation, substandard, or artificial wine, and compounds sold as wine, which contain 24 percent or less of alcohol by volume) produced in or imported into the United States. Wine containing more than 24 percent of alcohol by volume is classified as distilled spirits and taxed accordingly. A wine product containing less than one-half of one percent alcohol by volume is not taxable as wine when removed from the bonded wine premises.

    (b) Tax determined and paid on the volume of wine. The tax is determined and paid on the volume of wine:

    (1) In bottles or other containers filled according to United States measure recorded to the nearest 10th gallon; or,

    (2) In bottles or other containers filled according to metric measure, on the volume of wine in United States wine gallons to the nearest 10th gallon; or

    (3) In the case of pipeline removals, on the volume of bulk wine removed recorded to the nearest whole gallon, five-tenths gallon being converted to the next full gallon.

    (c) Tax rates imposed on wine. The following taxes are imposed on wine:

    (1) Tax class 5041(b)(1). On still wines containing not more than 14 percent alcohol by volume, $1.07, per wine gallon;

    (2) Tax class 5041(b)(2). On still wines containing more than 14 percent and not exceeding 21 percent alcohol by volume, $1.57 per wine gallon;

    (3) Tax class 5041(b)(3). On still wines containing more than 21 percent and not exceeding 24 percent alcohol by volume, $3.15 per wine gallon;

    (4) Tax class 5041(b)(4). On champagne and other sparkling wines, $3.40 per wine gallon;

    (5) Tax class 5041(b)(5). On artificially carbonated wines, $3.30 per wine gallon; and

    (6) Tax class 5041(b)(6). On hard cider, 22.6 cents per wine gallon. See § 24.331 for the definition of hard cider for purposes of determining eligibility for the hard cider tax class.

    (d) Small domestic producer tax credit. For eligibility for the small producer tax credit, see §§ 24.278 and 24.279.

    (Sec. 201, Pub. L. 85-859, 72 Stat. 1331, and Sec. 335, Pub. L. 114-113, 129 Stat. 3109, as amended (26 U.S.C. 5041))
    § 24.290 [Amended]
    16. Section 24.290(a) is amended by adding the words “or still hard cider” after the words “still wine” in the first sentence.
    § 24.291 [Amended]
    17. Section 24.291 is amended: a. In the first sentence of paragraph (a), by adding the words “or still hard cider” after the words “still wine”; and, b. In the Office of Management and Budget control number reference, by removing the numbers “1512-0058, 1512-0292 and 1512-0298”, and adding, in their place, the numbers “1513-0009 and 1513-0115”.
    § 24.301 [Amended]
    18. Section 24.301 is amended: a. In the section heading, by adding the words “and bulk still hard cider” after the words “still wine”; b. In the first sentence of the introductory text, by adding the words “or bulk still hard cider” after the words “still wine” each time they appear; c. In the second sentence of the introductory text, by adding the words “or for hard cider” after the words “still wine”; d. In the third sentence of the introductory text, by adding the words “and bulk still hard cider” after the words “still wine”; e. In paragraph (b), by adding the words “or sparkling hard cider” after the words “sparkling wine”; and f. In the Office of Management and Budget control number reference, by removing the number “1512-0298” and adding, in its place, the number “1513-0115”. 19. Section 24.302 is amended by: a. Revising the introductory text and paragraphs (a), (d), (e), (g), (i), and (j); b. Adding paragraph (k); and c. Revising the Office of Management and Budget control number reference.

    The revisions and addition read as follows:

    § 24.302 Effervescent wine record.

    A proprietor who produces or receives effervescent wine in bond shall maintain records showing the transaction date and details of production, receipt, storage, removal, and any loss incurred. Records will be maintained for each specific process used (bulk or bottle fermented, injection of carbon dioxide) and by the specific kind of wine, e.g., grape, apple, pear, cherry, hard cider. The record will contain the following:

    (a) The volume of still wine or still hard cider filled into bottles or pressurized tanks prior to secondary fermentation or prior to the addition of carbon dioxide;

    (d) The volume of bottle fermented sparkling wine or bottle fermented sparkling hard cider in process, transferred and received;

    (e) The volume returned to still wine or still hard cider;

    (g) The volume of finished effervescent wine bottled or packed (amount produced);

    (i) An explanation of any unusual transaction;

    (j) If the proprietor is an importer of wine to which the provisions of § 27.140 of this chapter apply, any certification or other records required at the time of release from customs custody under that section; and

    (k) The amount of carbon dioxide in artificially carbonated hard cider or sparkling hard cider.

    (Sec. 201, Pub. L. 85-859, 72 Stat. 1381, as amended (26 U.S.C. 5367)) (Approved by the Office of Management and Budget under control number 1513-0115 and 1513-XXXX)
    § 24.306 [Amended]
    20. Section 24.306 is amended by adding in the words “and bulk still hard cider” after the words “still wine” in the last sentence, and, in the Office of Management and Budget control number reference, by removing the number “1512-0298” and adding, in its place, the number “1513-0115”.
    § 24.308 [Amended]
    21. Section 24.308 is amended by adding the words “or bottle fermented sparkling hard cider” after the words “bottle fermented sparkling wine” in the last sentence of paragraph (a), and, in the Office of Management and Budget control number reference, by removing the number “1512-0298” and adding, in its place, the number “1513-0115”.
    § 24.319 [Amended]
    22. Section 24.319 is amended by adding the words “or still hard cider” after the words “still wine”, and, in the Office of Management and Budget control number reference, by removing the number “1512-0298” and adding, in its place, the number “1513-0115”. 23. Subpart P, consisting of §§ 24.331 and 24.332, is added to read as follows: Subpart P—Eligibility for the Hard Cider Tax Rate
    § 24.331 Wine eligible for the hard cider tax rate.

    A wine removed on or after January 1, 2017 is eligible for the hard cider tax rate listed in § 24.270 if:

    (a) It contains no more than 0.64 gram of carbon dioxide per 100 milliliters of wine;

    (b) It is derived primarily from apples or pears, or from apple juice concentrate or pear juice concentrate and water, as described in § 24.332(a);

    (c) It contains no fruit product or fruit flavoring other than apple or pear, as described in § 24.332(b) and (c); and

    (d) It contains at least one-half of 1 percent and less than 8.5 percent alcohol by volume.

    (Sec. 335, Pub. L. 114-113, 129 Stat. 3109, as amended (26 U.S.C. 5041))
    § 24.332 Hard cider materials.

    This section pertains to wine that is eligible for the hard cider tax rate as set out in § 24.331.

    (a) Apples and pears. Wine will be considered to be derived primarily from apples or pears, or from apple juice concentrate or pear juice concentrate and water, if the apple juice, pear juice, or combination of apple and pear juice, or the equivalent amount of concentrate of apple and/or pear juice reconstituted to the original brix of the juice prior to concentration, or any combination thereof, represents more than 50 percent of the volume of the finished product.

    (b) Fruit products. (1) Wine is not eligible for the hard cider tax rate if it contains any fruit product other than apple or pear. A fruit product is any material derived or made from any fruit or part of a fruit, including but not limited to, concentrates, extracts, juices, powders, or wine spirits.

    (2) Notwithstanding the provisions of § 24.332(b)(1), an authorized wine treating material set forth in § 24.246 that is derived from a fruit other than apple or pear may be used in the production of wine otherwise eligible for the hard cider tax rate if it is used for a purpose other than flavoring and it is either used in accordance with the wine treating materials provisions of § 24.246 (if used in a natural wine), or used in amounts insufficient to impart a fruit flavor other than apple or pear (if used in a special natural wine or other than standard wine). In determining whether the use of wine treating materials derived from a fruit other than apple or pear is for a purpose other than flavoring, TTB will consider such factors as the labeling and advertising of the product. Any written or pictorial reference to a material derived from a fruit other than apple or pear (other than the inclusion of a wine treating material in an ingredient labeling statement) in the labeling or advertising of a wine will be treated as evidence that the wine treating material was added for the purpose of flavoring the wine.

    (c) Flavorings. Wine is not eligible for the hard cider tax rate if it contains any fruit flavoring other than apple or pear. For purposes of this section, a fruit flavoring other than apple or pear is any flavoring that imparts the flavor of a fruit other than apple or pear and includes a natural fruit flavor, an artificial fruit flavor, and a natural flavor that artificially imparts the flavor of a fruit that is not contained in that flavor. In determining whether the use of a flavoring imparts the flavor of a fruit other than apple or pear, TTB will consider such factors as the labeling and advertising of the product. Any written or pictorial reference to a fruit flavor other than apple or pear in the labeling or advertising of a wine that contains a flavoring will be treated as evidence that the wine contains a flavoring that imparts a fruit flavor other than apple or pear and thus the wine is not eligible for the hard cider tax rate. The use of spices, honey, hops, or pumpkins as a flavoring will not make a wine ineligible for the hard cider tax rate.

    (Sec. 335, Pub. L. 114-113, 129 Stat. 3109, as amended (26 U.S.C. 5041))
    PART 27—IMPORTATION OF DISTILLED SPIRITS, WINES, AND BEER 24. The authority citation for part 27 continues to read as follows: Authority:

    5 U.S.C. 552(a), 19 U.S.C. 81c, 1202; 26 U.S.C. 5001, 5007, 5008, 5010, 5041, 5051, 5054, 5061, 5121, 5122-5124, 5201, 5205, 5207, 5232, 5273, 5301, 5313, 5382, 5555, 6109, 7805.

    25. Section 27.11 is amended by adding the definition of “Hard cider” in alphabetical order to read as follows:
    § 27.11 Meaning of terms.

    Hard cider. A wine that meets the eligibility requirements set forth in § 24.331 for the hard cider tax rate set forth in § 24.270.

    26. Section 27.59 is revised by: a. Designating the current paragraph as paragraph (a); b. Adding a paragraph heading to newly designated paragraph (a); c. Adding paragraph (b); and d. Adding an Office of Management and Budget control number reference.

    The designation and additions read as follows:

    § 27.59 Wines.

    (a) General. * * *

    (b) Hard cider. The container of any wine eligible for the “hard cider” tax class set forth in § 24.270 of this chapter must be labeled in accordance with the requirements applicable to wine containers removed from wine premises under § 24.257(a)(4) of this chapter. (See § 24.331 of this chapter for the eligibility requirements for the hard cider tax rate).

    (Approved by the Office of Management and Budget under control number 1513-XXXX)
    Signed: December 7, 2016. John J. Manfreda, Administrator. Approved: January 4, 2017. Timothy E. Skud, Deputy Assistant Secretary (Tax, Trade and Tariff Policy).
    [FR Doc. 2017-00333 Filed 1-19-17; 8:45 am] BILLING CODE 4810-31-P
    DEPARTMENT OF LABOR Office of the Secretary 29 CFR Part 70 RIN 1290-AA30 Revision of FOIA Regulations AGENCY:

    Office of the Secretary, Department of Labor.

    ACTION:

    Final rule.

    SUMMARY:

    This final rule amends the Department of Labor's regulations under the Freedom of Information Act (“FOIA”). The regulations have been revised to update and streamline the language of several procedural provisions and to incorporate changes brought about by the amendments to the FOIA under the OPEN Government Act of 2007 and the FOIA Improvement Act of 2016. Additionally, the regulations have been updated to incorporate changes in the agency's administrative structure.

    DATES:

    This final rule is effective January 23, 2017.

    FOR FURTHER INFORMATION CONTACT:

    Ramona Branch Oliver, Director, Office of Information Services, 202-693-5391 (this is not a toll free number) or 1-877-889-5627 (TTY). Individuals with hearing or speech impairments may access the telephone number above via TTY by calling the toll-free Federal Information Relay Service at (800) 877-8839.

    SUPPLEMENTARY INFORMATION:

    On August 17, 2016, the Department of Labor published a Notice of Proposed Rule Making (NPRM) to revise its existing regulations under the FOIA found at 29 CFR part 70, to update and streamline the language of several procedural provisions and to incorporate changes brought about by the amendments to the FOIA under the OPEN Government Act of 2007, Public Law 110-175, 121 Stat. 2524, and the FOIA Improvement Act of 2016, Public Law 114-185, 130 Stat. 538 (enacted June 30, 2016). The Department invited comments through October 17, 2016.

    Discussion of Comments: Preparation of the NPRM and this finalization of the Department's updated FOIA regulation satisfied the requirement in Section 3 of the FOIA Improvement Act of 2016 that each agency review and revise its FOIA regulation to be consistent with the statutory requirements.

    Interested persons were afforded the opportunity to participate in the rulemaking process through submission of written comments to the proposed rule during the open comment period. In total, the Department received six submissions in response to its proposed rule, including comments from two Federal agencies, as well as internal comments from a component of the Department. Due consideration has been given to each of the comments received and, in response, the Department has made several modifications to the rule. These modifications include clarifying, revising, or expanding various provisions, withdrawing a provision, retaining existing language for certain other provisions, and making technical edits, such as correcting Web site links.

    Discussion of each of the comments, and the Departments response follows:

    Section 70.2 Definitions

    One commenter expressed concern that the use of the phrase “or financial” is superfluous in the first clause of subsection §  70.2(j) (defining submitter), because that phrase is already included in the definition of “confidential commercial information” in subsection (b). The Department has determined that including “or financial” is helpful in identifying different types of information. As such, DOL declines to make the requested change.

    One commenter suggested that the definition of “unusual circumstances” in §  70.2(k)(3) should state that consultation could occur “. . . with another agency or among two or more components of the Department having a substantial interest in the determination of the request.” The Department agrees that the proposed change will enhance the rule's clarity, and so the revised final rule adopts this proposed language.

    Section 70.3 Policy

    One commenter suggested changing the title of §  70.3 from “Policy” to “Presumption of Openness,” because, following the June 2016 statutory amendments to FOIA, this section addresses not a matter of policy, but of law. The Department agrees with this comment. The final rule modifies this section to be titled, “Presumption of Openness.”

    One commenter suggested that the regulation does not include the use of exclusions and that if DOL would have any opportunity to use an exclusion, they should be addressed. The Department agrees with this comment and has incorporated by reference the law enforcement exclusions in subsection (c) of the FOIA at §§ 70.3 and 70.20(b).

    Section 70.4 Proactive Disclosure of Departmental Records

    One commenter noted that the Department makes many (a)(2) proactive disclosures by posting materials on DOL Web sites other than the Department's specific FOIA Web site pages, for which a URL was included in this section of the NPRM. Accordingly, the commenter suggested removing a specific link to the Department's FOIA Web page and instead stating more generally that records may be accessed through the Department's Web site. The Department agrees with the comment, and the final rule has been revised to remove the specific URL.

    Section 70.19 Requirements for Making a Request

    Three commenters expressed concern regarding DOL's decision to continue to have a single central email box for the receipt of FOIA requests, and raised a number of points regarding whether this creates inefficiencies in DOL's FOIA processing. Specifically, § 70.19(a) of the NPRM states, consistent with the Department's existing FOIA regulation at 29 CFR 70.19(b), that any FOIA request submitted electronically, by email, must be submitted to a single email address.

    One commenter requested that DOL clarify that even though DOL's FOIA program is decentralized, DOL will receive all electronic submission to one inbox and that each request will then be sent to the appropriate component for processing. That same commenter expressed concern that the NPRM language regarding a central email inbox may be in conflict with the NPRM at § 70.19(b), which states that requesters should submit their request directly to the component that maintains the records sought. The same commenter suggested that if DOL has a single email address for electronic submissions, it should make clear that the requester must designate the component to which the request is directed. One of the commenters sought to confirm that requests submitted electronically are not automatically subject to the “routing” provision, under which the time processing clock does not begin until a request is received in the proper component or until ten days after receipt anywhere in the Department. This same commenter flagged that § 70.19(b)(2) of the NPRM provides that requesters who do not know where to submit their request can email it to the same central email address indicated for all requests submitted electronically in (a), and that “routing” procedures might then apply. The same commenter asked how DOL will know which requests need to be “routed” vs. those that are just being submitted electronically to a particular component. The commenter also stated that when requesters indicate the component (or components if they are submitting to more than one), it does not seem appropriate for DOL to “route” these requests because this is the only way they may be submitted electronically. The commenter asked whether DOL considered establishing email addresses to receive electronic submissions for all components. The commenter noted that this approach would seem to allow requests to get where they need to go more efficiently.

    DOL has considered these comments and—for the reasons explained below—has determined that DOL's FOIA program can be administered most effectively with a single central email inbox for receipt of FOIA requests, but that some clarification to the regulatory text of § 70.19 can be made to explain DOL's process and address the commenters' concerns. DOL has established an effective method to receive and assign incoming FOIA requests received by email. DOL has established a single centralized FOIA mailbox, which is actively monitored by staff within the Department's central FOIA office, the Office of Information Services. Staff who monitor the FOIA mailbox are responsible for ensuring that FOIA requests are appropriately directed to the agency component(s) identified by the requester or to the appropriate component(s) in instances where the requester has failed to identify a component or has identified the wrong component. Receipt in the central FOIA email inbox does not automatically add 10 additional days for “routing,” rather, the Department has established an operational performance measure that tracks whether requests are routed to the agency component(s) likely to maintain responsive records within two business days of receipt. By having a centralized FOIA email inbox monitored by FOIA staff, the Department has ensured that FOIA requests are not received at email addresses that are not regularly monitored, or sent to DOL staff who are not involved in FOIA processing and may not know what to do with an incoming FOIA request.

    For these reasons, the Department has determined to retain the concept of a central incoming FOIA email inbox. However, DOL has modified the language of § 70.19(a) in several ways to increase public clarity and promote efficient logging and assignment of incoming FOIA requests. The final text adds language to § 70.19(a) and (b) further explaining the Department's process, and indicating that requesters should, when emailing in requests, identify the component or components to which they are submitting their FOIA request in order to facilitate the timely assignment and processing of their request. The final rule also seeks to clarify the circumstances under which the time to respond begins to run, by moving the last clause of § 70.19(b)(2) from the NPRM into a separate provision at § 70.19(b)(3), and clarifying that if a requester submits a FOIA request to the incorrect DOL FOIA component, or sends a request to the Department's central FOIA office or mailbox without identifying the component(s) to which the request is submitted, the time to respond begins to run when the request is received by the proper component, but no later than 10 working days after receipt in any component identified in Appendix A or in the Office of Information Services.

    One commenter raised a concern that the language in the NPRM at § 70.19(d)(3) is overly broad regarding when the processing of a FOIA request can be tolled. The commenter suggested that the rule track the language of the statute more closely to indicate a request can be tolled only once if the agency is seeking clarification from the requester about their request. The Department concurs, and in response to this comment, the final rule has been modified to read, “While an agency component awaits a requester's modified FOIA request, the processing time limits described in Sec. 70.25(a)(1) will be tolled (that is, the processing time clock will be stopped on one occasion only) until clarification is received from the requester.”

    Section 70.20 Responsibility for Responding to Requests

    One commenter raised concerns with the provision at §  70.20(a) providing that the Department's Office of Information Services may coordinate responses when “it is determined that records responsive to a request may be located in multiple components of the Department.” The commenter suggested that this provision might add an obligation beyond the requirements of the FOIA, for example, requiring one component to conduct searches at those other components and process those records.

    The Department disagrees that this provision, which is not a procedural change from the existing regulation, creates new or additional responsibilities. This provision does not mandate that OIS coordinate responses, or that one component undertake searches of other components' records. Rather this provision recognizes that there may be circumstances where similar or the same documents are maintained by multiple components of the Department, and it is appropriate to coordinate search, review and response, for example, through use of coordinated search terms. Although DOL's FOIA program is decentralized, it remains one agency and seeks to speak in one voice on matters of disclosure of documents that may be duplicative or have overlapping equities across the agency. In addition, this comment raises a policy question related to how DOL structures its FOIA operation, and the Department has determined that it will continue its present program administration and flexibility in the operation of the Department's FOIA program. Accordingly, the final rule adopts the provision as proposed.

    Regarding the provisions at §  70.20(d) related to consultations and referrals, one commenter suggested that the first sentence should be edited to clarify that consults and referrals are only appropriate when a component has actually located records. The Department agrees that the language could more clearly identify when consultations and referrals are appropriate and, therefore, the Department is making the following change in the final rule: “Consultations and referrals. When a component is reviewing records in response to a request, it will determine if another component of the Department, or of the Federal Government, is better able to determine whether the record can be disclosed or is exempt from disclosure under the FOIA.”

    Also, in reference to §  70.20(d), one commenter suggested that the language be altered because, as written, it does not authorize the Department to consult with the Office of White House Counsel, which is neither an “agency” nor a Department component. The Department does not believe a revision is necessary because the regulatory language recognizes that consultation or referral may occur with “another component . . . of the Federal Government.” The Department believes that this adequately covers instances where DOL might need to consult with the Office of White House Counsel.

    One commenter suggested that § 70.20 should include language on “coordination” to cover situations where referring records may not be appropriate, and gave as an example instances where a referral would reveal classified information. The Department does not believe this change is necessary, as the Department does not have original classification authority pursuant to the prevailing executive order on national security classification and, likewise, does not have the authority to downgrade or declassify documents.

    Section 70.21 Responses to Requests

    One commenter suggested that § 70.21(b) should require the Department's acknowledgement letter to indicate the date of receipt of the request. The Department declines to make this change as it is beyond the scope of the current statutory requirement. It is also unnecessary to DOL's FOIA program because Departmental policy is that acknowledgment letters should provide requesters with a link to the public FOIA portal, which provides the requester with the date of receipt. The final rule adopts the provision as proposed.

    One commenter suggested that § 70.21(c) should be revised to add that written communications notifying a requester of the grant of a request will include notice of the availability of the FOIA Public Liaison, as required by the FOIA Improvement Act of 2016. The Department concurs and has modified this provision in the final rule to read, “The component must notify the requester of the right to seek assistance from the Department's FOIA Public Liaison.”

    One commenter suggested that the wording of § 70.21(e)(5) of the NPRM, regarding the “Content of the denial,” incorrectly implies that “adverse determination” and “denial” are different in kind, and suggested combining the subparts of (5) into (e). The commenter stated that any denial is an adverse determination and must include notification of appeal rights as well as the availability of OGIS and the FOIA Public Liaison. The Department concurs that the language of § 70.21(e)(5) in the NPRM potentially led to confusion. In response to this comment, the Department has combined subsections (4) and (5) of this provision in the final rule.

    The Final Rule includes a new provision of Section 70.21(e)(5) that states “Engaging in dispute resolution services provided by OGIS is a voluntary process. If the Department agrees to participate in the mediation services provided by OGIS, it will actively engage as a partner to the process in an attempt to resolve the dispute.” This change is in response to a comment received on Section 70.22.

    Section 70.22 Appeals From Denials of Requests

    The NPRM at Sec. 70.22(a) identified as one circumstance in which a FOIA requester could file an appeal “a component's failure to respond to the request within the time limits.” One commenter objected to this language on grounds that there is no response to appeal when the DOL component to which a FOIA request was submitted has not provided a timely response, and that a requester does not need to administratively appeal in order to exhaust administrative remedies. The Department declines to remove the reference to “a component's failure to respond to the request within the time limits” as an example of a circumstance that may prompt an administrative appeal because many requesters are not inclined to seek judicial review on the basis of a delayed response to a pending FOIA request and would rather seek to obtain disclosure of information through the administrative appeals process. Although a requester does not have to exhaust his or her administrative remedies on timeliness issues where no initial response has been provided, the Department believes that the better practice under FOIA is to continue to make an administrative appeal available to requesters, and that eliminating this option may result in requesters believing that litigation is necessary when an administrative process may more quickly and cost effectively address the requester's concern.

    One commenter raised a concern with the wording of § 70.22(a) in that it does not identify the ability of a requester to appeal from a failure of the Department to respond in a timely manner to a request for expedited processing, or to appeal in the event that the Department refuses to provide responsive records in a requested format. As Sec. 70.21 provides, a FOIA requester may file an administrative appeal in response to any denial or adverse determination. Section 70.22(a) provides examples of when a requester may seek a de novo review through the Department's FOIA administrative appeal process, but the list is not intended to be an exhaustive identification of the bases for appeal. To assist the public, the Department has revised this provision in the final rule to make clear that it provides examples rather than an exhaustive list.

    One commenter suggested that using the word “must” in the second sentence of § 70.22(b) regarding items to be provided along with a FOIA appeal creates an administrative hurdle that is counter to the spirit of FOIA. The Department agrees with this comment and has modified the language in the final rule to replace the word “must” with “should.”

    One commenter suggested adding language about engaging with OGIS somewhere in § 70.22 or its own section to satisfy the requirement of the FOIA Improvement Act that agency FOIA regulations include procedures for engaging with OGIS. The commenter suggested including the following language in the Final Rule: “Engaging in dispute resolution services provided by OGIS. Mediation is a voluntary process. If an agency agrees to participate in the mediation services provided by OGIS, it will actively engage as a partner to the process in an attempt to resolve the dispute.” In response to this comment, the Department has included language in Section 70.21(e)(5), which it believes is a more appropriate place for this language. The new provision of Section 70.21(e)(5) states “Engaging in dispute resolution services provided by OGIS is a voluntary process. If the Department agrees to participate in the mediation services provided by OGIS, it will actively engage as a partner to the process in an attempt to resolve the dispute.”

    Section 70.24 Form and Content of Action on Appeals

    One commenter suggested that in the third sentence, “Consistent with the statute” should be removed, noting that the Freedom of Information Act, as amended, does not require notification about services provided by OGIS in appeals letters, but rather that any such inclusion is based on guidance from the Office of Information Policy. In response to this comment, the Department has modified the language in the final rule and removed the phrase “consistent with the statute” from this provision.

    Section 70.25 Time Limits and Order in Which Requests and Appeals Must Be Processed

    One commenter suggested that § 70.25(a) should note that the routing of requests may impact timing. The commenter recommended adding the following language, “In instances involving misdirected requests that are re-routed pursuant to § 70.20(c) of this subpart, the response time will commence on the date that the request is received by the proper component's office that is designated to receive requests, but in any event not later than 10 working days after the request is first received by any component's office that is designated by these regulations to receive requests.” The Department agrees with this comment and has added the suggested language to the final rule.

    One commenter suggested removing the clause “unless there are exceptional circumstances within the meaning of 5 U.S.C. 552(a)(6)(C)” from § 70.25(a) and noted that only a court can make a determination that there are exceptional circumstances. The Department agrees with this comment, and has removed this provision from the final rule.

    In relation to § 70.25(c)(1), one commenter suggested that, as a practical matter and looking at agency response times, agencies tend to need more than ten additional days when there are unusual circumstances requiring extension of processing times. The commenter suggested that the language stating “this extension should not ordinarily exceed ten business days” be removed. The Department agrees with this comment, and has removed this phrase from the final rule.

    One commenter suggested that the Department was creating an unnecessary administrative burden by requiring in § 70.25(e)(3) that a person seeking expedited processing as a member of the media establish that “he or she is a person whose main professional activity or occupation is information dissemination . . .” Consistent with administrative guidance, the Department believes that to meet the standard for expedited processing under the FOIA statute (see 5 U.S.C. 552(a)(6)(E)(v)(II)) a requester who is not a full-time member of the news media must establish that he or she is a person whose primary professional activity or occupation is information dissemination, though it need not be the requester's sole occupation. DOL does not believe that requiring the requester to meet the statutory standard is unnecessarily burdensome. Therefore, the final rule adopts the provision as proposed in the NPRM.

    Section 70.26 Confidential Commercial Information

    One commenter recommended that Executive Order 12,600 be cited consistently in §§ 70.26(a) and (g)(3). The Department agrees with this comment and has edited these sections for consistency in the final rule.

    One commenter suggested that § 70.26(e) and (f)(3) should be modified to provide that the “reasonable period” that a submitter has to object to the agency's proposed treatment of the submitter's material will be at least five business days from the date that the submitter receives the agency's notice. The Department declines to make this change. The NPRM provision at § 70.26(e) indicates that a submitter will be provided with a “reasonable time to respond” to a notice from the agency, but also notes that the response date will be specified in the submitter's notice provided in accordance with Executive Order 12,600. Furthermore, the time provided to a submitter for responding is based upon the volume and complexity of the materials requested. Section 70.26(f)(3) does not discuss response time periods. The final rule adopts both provisions as proposed.

    Section 70.38 Definitions Related to Costs

    One commenter suggested a change to § 70.38(a), which states that “request” in the costs subpart includes any request and any appeal. The commenter suggested removing the reference to the FOIA appeal stage on grounds that no fees are assessed on appeal, noting that while a request may be remanded on appeal for further processing, any subsequent fees apply to the underlying request, not the appeal. The Department agrees with this comment, and the final rule removes references to FOIA appeals.

    Regarding § 70.38(c), one commenter suggested using the term “duplication” throughout instead of “reproduction” in order to be consistent with the FOIA statute, which states that fees shall be limited to search, duplication, and review, and OMB guidelines. The Department agrees with this comment and has modified the final rule to use the term “duplication.”

    Three commenters made suggestions related to the definition of educational institutions for cost purposes in the NPRM at § 70.38(g)(2). The commenters suggested that this provision should reflect and adopt the holding of Sack v. Department of Defense, 823 F.3d 687 (D.C. Cir. 2016), which found that students may qualify as educational institution requesters in some circumstances. In response to these comments and to retain flexibility to determine a student's eligibility for a fee waiver based on any future judicial interpretations or guidance issued by Department of Justice, the Department has removed the following sentence from the final rule, “A request from a student enrolled in an individual course of study at an education institution would not qualify as a request from the institution.”

    Regarding the definition of “representative of the news media” in the NPRM at § 70.38(i)(3), one commenter asked that DOL remove two uses of the word “qualifying” from the phrase “qualifying news media entity” because inclusion of the word “qualifying” gives the impression that a news media entity must meet some separate or additional qualification standard. The commenter suggested that the phrase “news media entity” is sufficient. The Department agrees with this comment. The final rule removes the word “qualifying” from this provision.

    70.40 Charges Assessed for the Production of Records

    Two commenters noted that, in § 70.40(c) and (d), DOL has identified four types of requesters for fee purposes, and suggested that these groups could be combined into three. The Department has determined that identifying four types of requesters is helpful to distinguish between different types of requesters that communicate with the Department. As such, the Department declines to make the change requested, and the final rule adopts the provision as proposed.

    One commenter noted that § 70.40(e)(1)(iii) of the NPRM states that if a search requires transportation of the searcher to the location of the records, or of the records to the searcher, all transportation costs in excess of $5 may be added to search costs. The commenter raised questions about this provision and whether it was an appropriate cost to pass on to the requester. In response to the comments received, the Department is removing this provision from the final rule as unnecessary. The Department notes that this provision has been in effect since 2006 when the DOL last published its FOIA regulations (see 71 FR 30762), but is not aware of any instance in which such costs have been assessed.

    One commenter noted that § 70.40(e)(2) of the NPRM states that a FOIA component may require the requester to provide any medium requested other than paper. The commenter raised questions about this provision and whether it was an appropriate burden to pass on to the requester. In response, the Department is removing this provision from the final rule as unnecessary. The Department notes that this provision has been in effect since 2006 when DOL last published its FOIA regulations (see 71 FR 30762), but is not aware of any instances where this provision was applied.

    One commenter asked if DOL has evaluated the actual cost of reproducing paper copies identified in § 70.40(e)(2) (FOIA requests) and 70.53(c) (requests for documents from the Office of Labor-Management Standards). The commenter suggested that, with the use of commercial vendors, actual costs are likely close to 5 or 10 cents per page, rather than the 15 cent per page costs included in the NPRM. DOL notes that it does not typically use commercial vendors to help fulfill requests for paper-based records in response to FOIA requests, and therefore that comparison may not be applicable here. Furthermore, as the NPRM states, reproduction cost also reflects the time associated with reproducing the documents being provided. Accordingly, DOL declines to make a change to the cost of the duplication of paper-based records. The final rule adopts the provision as proposed.

    Regarding the NPRM provisions regarding limitations on fee charges, one commenter suggested that § 70.40(e)(4)(i) should use language that more closely matches the statutory language. The commenter suggested that section (4) should note what the “certain fees” are, and suggested, that, as written, this provision does not account for the possibility of the exception in § 70.40(e)(4)(ii). Additionally, the commenter suggested that § 70.40(e)(4)(ii) should be edited to state “and more than 5,000 pages are necessary to respond to the request,” noting that “deemed to be responsive” is potentially more restrictive. The Department agrees that this comment has identified some potentially confusing language, and has accordingly modified § 70.40(e)(4) to incorporate the recommended change.

    In addition to the changes made as a result of specific comments and Departmental feedback, this final rule includes changes already identified in the NRPM (see 81 FR 54770) to include changes in language and structure of the existing regulation and to codify changes based on the FOIA Improvement Act of 2016. As an additional administrative update, the Department is also making a change to §  70.27 (Preservation of records) to update the National Archives and Records Administration's General Records Schedule which governs the disposition of FOIA case files and related records from GRS 14 to GRS 4.2: Information Access and Protection Records.

    Regulatory Flexibility Act: The Secretary of Labor, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation and by approving it certifies that this regulation will not have a significant economic impact on a substantial number of small entities. Under the FOIA, agencies may recover only the direct costs of searching for, reviewing, and duplicating the records processed for requesters, and only for certain classes of requester and when particular conditions are satisfied. Thus, fees assessed by the Department are nominal. Further, the “small entities” that make FOIA requests, as compared with individual requesters and other requesters, are relatively few in number.

    Executive Order 12,866: This regulation has been drafted and reviewed in accordance with Executive Order 12,866, § 1(b), Principles of Regulation. The Office of Management and Budget has determined that this rule is not a “significant regulatory action” under Executive Order 12,866, § 3(f), Regulatory Planning and Review, and accordingly this rule has not been reviewed by OMB.

    Unfunded Mandates Reform Act of 1995: This rule will not result in the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

    Small Business Regulatory Enforcement Fairness Act of 1995: This rule is not a major rule as defined by section 251 of the Small Business Regulatory Enforcement Fairness Act of 1996 (as amended), 5 U.S.C. 804. This rule will not result in an annual effect on the economy of $100,000,000 or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.

    List of Subjects in 29 CFR Part 70

    Administrative Practice and Procedure; Freedom of Information Act; Privacy.

    For the reasons stated in the preamble, the Department of Labor revises 29 CFR part 70 to read as follows: PART 70—PRODUCTION OR DISCLOSURE OF INFORMATION OR MATERIALS Subpart A—General Sec. 70.1 General provisions. 70.2 Definitions. 70.3 Presumption of openness. 70.4 Proactive disclosure of Departmental records. 70.5 Compilation of new records. 70.6 Disclosure of originals. 70.7-70.18 [Reserved] Subpart B—Procedures for Disclosure of Records Under the Freedom of Information Act 70.19 Requirements for making a request. 70.20 Responsibility for responding to requests. 70.21 Responses to requests. 70.22 Appeals from denial of requests. 70.23 Action on appeals. 70.24 Form and content of action on appeals. 70.25 Time limits and order in which requests and appeals must be processed. 70.26 Confidential commercial information. 70.27 Preservation of records. 70.28-70.37 [Reserved] Subpart C—Costs for Production of Records 70.38 Definitions related to costs. 70.39 Statutes specifically providing for setting of fees. 70.40 Charges assessed for the production of records. 70.41 Waiver or reduction of fees. 70.42 Consent to pay fees. 70.43 Payment of fees. 70.44 Other rights and services. 70.45-70.52 [Reserved] Subpart D—Public Records and Filings 70.53 Office of Labor-Management Standards. 70.54 Employee Benefits Security Administration. Appendix A to Part 70—FOIA Components Appendix B to Part 70—[Reserved] Authority:

    5 U.S.C. 301; 29 U.S.C. 551 et seq.; 5 U.S.C. 552, as amended; Reorganization Plan No. 6 of 1950, 5 U.S.C. Appendix, 29 U.S.C. 1026 (106), 5 U.S.C. app. 11., Executive Order. 12,600, 52 FR 23781, 3 CFR, 1988 Comp., p. 235. This part also implements the public information provisions of the Labor-Management Reporting and Disclosure Act (LMRDA), 29 U.S.C. 435, see § 70.53 below; the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. 1026 (106), see § 70.54 below; and the Federal Advisory Committee Act (FACA), 5 U.S.C. app. 11, see § 70.40(i) below.

    Subpart A—General
    § 70.1 General provisions.

    (a) This part is organized as follows: Subpart A contains general information about Department of Labor policies and procedures; subpart B sets forth the procedures for obtaining access to records of the Department; subpart C contains the Department's regulations on fees; and subpart D sets forth the procedures for obtaining access to certain public records. Appendix A contains a list of all Department of Labor FOIA components from which records may be obtained.

    (b) This part contains the rules that the Department of Labor follows in processing requests for records under the Freedom of Information Act (FOIA), as amended, 5 U.S.C. 552. The rules in this part should be read together with the text of the FOIA, which provides additional information about access to records maintained by the Department. Additionally, the Department's “Guide to Submitting Requests under the FOIA” and related documents contain helpful information about the specific procedures particular to the Department with respect to making FOIA requests, and descriptions of the types of records maintained by different components of the Department. These references are available at http://www.dol.gov/dol/foia/guide6.html.

    (c) Requests made by individuals for records about themselves under the Privacy Act of 1974, 5 U.S.C. 552a, are processed under 29 CFR part 71 as well as under this part. Information routinely provided to the public as part of a regular Department activity (for example, press releases issued by the Office of Public Affairs (OPA)) may be provided to the public without following this subpart.

    (d) As set forth in § 70.3 of this part, the Department operates its FOIA program with a presumption of openness and withholds records or information under the FOIA only when the Department reasonably foresees that disclosure would harm an interest protected by a FOIA exemption or when disclosure is prohibited by law.

    (e) The Department has a decentralized system for processing requests, with each component handling requests for its own records. Each component has a FOIA Customer Service Center that can assist individuals in locating records and address questions regarding pending FOIA requests. A list of the Department's Customer Service Centers is available at http://www.dol.gov/dol/foia/RequestorServiceCenters.htm.

    (f) The Secretary has designated a Chief FOIA Officer for the Department. Contact information for the Chief FOIA Officer is available on the Department's FOIA Web site, http://www.dol.gov/dol/foia/. The Office of Information Services (OIS), which is located within the Office of the Solicitor, provides Department level guidance and oversight for the Department's FOIA program and supports the statutorily-based responsibilities of the DOL Chief FOIA Officer.

    (g) The Department has a designated FOIA Public Liaison who can assist individuals in locating records of a particular component and with resolving issues relating to the processing of a pending FOIA request. Information concerning the DOL FOIA Public Liaison is available at http://www.dol.gov/sol/foia/liaison.htm. The DOL FOIA Public Liaison is responsible for assisting in reducing delays in FOIA processing, increasing transparency and understanding, providing information concerning the status of requests, and assisting in the resolution of disputes.

    § 70.2 Definitions.

    As used in this part:

    (a) The terms agency, person, party, rule, order, and adjudication have the meaning attributed to these terms by the definitions in 5 U.S.C. 551.

    (b) Confidential commercial information means commercial or financial information received or obtained by the Department from a submitter, directly or indirectly, that arguably may be protected from disclosure under Exemption 4 of the FOIA.

    (c) The Department means the Department of Labor.

    (d) FOIA Component means an official component of the Department that has authority to disclose or withhold records under the FOIA and to which requests to inspect or copy records in its custody should be addressed. Department of Labor components are listed in Appendix A to this part.

    (e) Record means any information that would be an agency record subject to the requirements of this part when maintained by an agency in any format, including an electronic format, and any information described under this part that is maintained for an agency by an entity under Government contract, for the purposes of records management.

    (f) Request means any written request for records made pursuant to 5 U.S.C. 552(a)(3) and which meets the requirements of this part.

    (g) Requester means any person who makes a request.

    (h) Search means to look for, manually or by automated means, Department records for the purpose of locating them in response to a pending request.

    (i) The Secretary means the Secretary of Labor.

    (j) Submitter means any person or entity from whom the Department receives or obtains confidential commercial or financial information, directly or indirectly. The term submitter includes, but is not limited to, corporations, labor organizations, non-profit organizations, and local, state, and tribal and foreign governments.

    (k) Unusual circumstances means, to the extent reasonably necessary for the proper processing of a FOIA request:

    (1) The need to search for and collect the requested records from physically separate facilities;

    (2) The need to search for, collect, and appropriately examine a voluminous amount of separate and distinct records that are demanded in a single request; or

    (3) The need for consultation, which will be conducted with all practicable speed, with another agency or among two or more components of the Department having a substantial interest in the determination of the request.

    § 70.3 Presumption of openness.

    All agency records, except those exempt from mandatory disclosure by one or more provisions of 5 U.S.C. 552(b) or the law enforcement exclusions in 5 U.S.C. 552(c), will be made promptly available to any person submitting a written request in accordance with the procedures of this part. The Department will withhold records under the FOIA only when the Department reasonably foresees that disclosure would harm an interest protected by a FOIA exemption or is prohibited by law. Whenever the Department determines that full disclosure of a requested record is not possible, the Department will consider whether partial disclosure is possible and will take reasonable steps to segregate and release nonexempt material. As set forth in Sec. 70.4, the Department proactively identifies and discloses records of interest to the public.

    § 70.4 Proactive disclosure of Departmental records.

    Records that are required by the FOIA, 5 U.S.C. 552(a)(2), to be made available for public inspection in an electronic format may be accessed through the Department's Web site. Each component is responsible for determining which of its records are required to be made publicly available, as well as identifying additional records of interest to the public that are appropriate for public disclosure, and for posting and indexing such records. Each component must review and update its Web site of posted records and indices on an ongoing basis.

    § 70.5 Compilation of new records.

    Nothing in 5 U.S.C. 552 or this part requires that any agency or component create a new record in order to respond to a request for records. A component must, however, make reasonable efforts to search for records that already exist in electronic form or format, except when such efforts would significantly interfere with the operation of the component's automated information systems. The component will determine what constitutes a reasonable effort on a case-by-case basis.

    § 70.6 Disclosure of originals.

    (a) No original record or file in the custody of the Department of Labor, or of any component or official thereof, will on any occasion be given to any agent, attorney, or other person not officially connected with the Department without the written consent of the Secretary, the Solicitor of Labor or the Inspector General.

    (b) The individual authorizing the release of the original record or file must ensure that a copy of the document or file is retained in the component that had custody and/or control when an original document or file is released pursuant to this subpart.

    §§ 70.7-70.18 [Reserved]
    Subpart B—Procedures for Disclosure of Records Under the Freedom of Information Act
    § 70.19 Requirements for making a request.

    (a) General information. The Department of Labor has a decentralized system for responding to requests submitted under the FOIA, as explained in § 70.1 of this part. In addition to processing requests for its own records, each agency component has the ability to receive FOIA requests in writing by mail, delivery service/courier or facsimile at its designated mailing address. However, to enable proper handling, any FOIA request submitted electronically, by email, must be submitted to the Department's central FOIA mailbox at [email protected] FOIA requests sent electronically to any other email address will not be accepted. A FOIA request submitted via email should designate the component or components to which the requester is submitting his/her request. The Department's central FOIA mailbox is regularly monitored, and requests will be assigned to the appropriate DOL FOIA component.

    (b) Request for records. To make a request for records of the Department, whenever possible, a requester should write directly to the FOIA office of the component that maintains the records sought or, if emailing a request to the DOL central FOIA mailbox, should identify the component(s) to which the request is directed. Submitting the request directly to the FOIA office of the component that maintains the records sought, or identifying that component when sending a FOIA request via email, will facilitate the quickest response. The requester must provide a mailing address to receive correspondence, and it may facilitate processing if telephone and email contact information are provided.

    (1) The Department's components for the purposes of the FOIA are listed in Appendix A to this part. The function and mailing address of each Department of Labor component is available on the Department's FOIA Web site at http://www.dol.gov/dol.foia. This page also provides other information that is helpful in determining where to make a request.

    (2) Requesters who cannot determine the proper FOIA office component or who are requesting records from multiple components may also send requests to the Office of the Solicitor, Office of Information Services, 200 Constitution Avenue NW., Room N-2420, Washington, DC 20210 or by email to [email protected]

    (3) Pursuant to § 70.25(a), if a requester submits a FOIA request to the incorrect DOL FOIA component, or sends a request to the Department's central FOIA office or mailbox without identifying the component(s) to which the request is submitted, the time to respond begins to run when the request is received by the proper component, but no later than 10 working days after receipt in any component identified in Appendix A or in the Office of Information Services.

    (c) Description of records sought. Requesters must describe the record or records sought in sufficient detail to enable Department personnel to locate them with a reasonable amount of effort. To the extent possible, the request should provide enough identifying information to help the component identify the requested records, such as the subject of the record, the date or approximate date when the record was created, the record's title or name, case or file number, reference number, the person or office or the office location that created it, and any other pertinent identifying details. Prior to submitting the request, a requester may wish to consult the references provided in § 70.1 of this part, the relevant FOIA Requester Service Center or the FOIA Public Liaison to discuss the records they are seeking and to receive assistance on how to describe the records.

    (d) Deficient descriptions and revised requests. If the description is insufficient, so that a knowledgeable employee who is familiar with the subject area of the request cannot identify the record with a reasonable amount of effort, the component processing the request will notify the requester and describe what additional information is needed to process the request.

    (1) Requesters who are attempting to modify or reformulate their requests may discuss their requests with the component's designated FOIA contact, the FOIA Public Liaison, or a representative of OIS, each of whom is available to assist the requester in reasonably describing the records sought. Every reasonable effort will be made to assist a requester in the identification and location of the records sought. If the requester fails to reasonably describe the records sought, the agency's response to the request may be delayed.

    (2) Any amended request must be confirmed in writing and meet the requirements for a request under this part.

    (3) While an agency component awaits a requester's modified FOIA request, the processing time limits described in § 70.25(a)(1) will be tolled (that is, the processing time clock will be stopped on one occasion only) until clarification is received from the requester.

    § 70.20 Responsibility for responding to requests.

    (a) In general. Except in the instances stated in paragraph (d) of this section, the component that first receives a request for a record and maintains that record is the component responsible for responding to the request. In determining which records are responsive to a request, a component ordinarily will include only records in its possession as of the date that the component begins the search; if any other date is used, the component will inform the requester of that date. A record that is excluded from the requirements of the FOIA pursuant to 5 U.S.C. 552(c), is not considered responsive to a request. When it is determined that records responsive to a request may be located in multiple components of the Department, the Office of Information Services may coordinate the Department's response. If the Office of Information Services deems a consolidated response appropriate, it will issue such a response on behalf of the Department.

    (b) Authority to grant or deny requests. Pursuant to relevant exemptions under 5 U.S.C. 552(b) or an exclusion under 5 U.S.C. 552(c), the head of a component, or designee, is authorized to grant or to deny any requests for records that are maintained by that component.

    (c) Re-routing of misdirected requests. Where a component's FOIA office determines that a request was misdirected within the Department, the receiving component's FOIA office will work with OIS to facilitate the routing of the request to the FOIA office of the proper component(s).

    (d) Consultations and referrals. When a component is reviewing records in response to a request, it will determine if another component of the Department, or of the Federal Government, is better able to determine whether the record can be disclosed or is exempt from disclosure under the FOIA. If the receiving component determines that it is not best able to process the record, then the receiving component will either:

    (1) Respond to the request after consulting with the component or agency best able to determine whether to disclose the record and with any other component or agency that has a substantial interest in the record; or

    (2) Refer the responsibility for responding to the request regarding that record to the component best able to determine whether to disclose it, or to another agency that originated the record (but only if that entity is subject to the FOIA). Ordinarily, the component or agency that originated the record will be presumed to be best able to determine whether to disclose it.

    (e) Notice of referral. Whenever a component refers all or any part of the responsibility for responding to a request to another component or agency, the component will notify the requester of the referral and inform the requester of the name of each component or agency to which the request has been referred and provide contact information for that component or agency.

    (f) Classified records. Any request for classified records which are in the custody of the Department of Labor will be referred to the classifying agency under paragraphs (d) and (e) of this section.

    § 70.21 Responses to requests.

    (a) In general. Components should, to the extent practicable, communicate with requesters using the method that is most likely to increase the speed and efficiency of the communication, including by electronic means, such as by email.

    (b) Acknowledgements of requests. A component will acknowledge each new request and assign it an individualized tracking number. Components will include in the acknowledgment a brief description of the records sought to allow the requesters to more easily keep track of their requests.

    (c) Granting a request. After a component makes a determination to grant a request in full or in part, the component will notify the requester in writing. The component will provide the record in the form or format requested if the record is readily reproducible in that form or format, provided the requester has agreed to pay and/or has paid any fees required by subpart C of this part. The component will determine on a case-by-case basis what constitutes a readily reproducible format. Each component should make reasonable efforts to maintain its records in commonly reproducible forms or formats. The component must notify the requester of the right to seek assistance from the Department's FOIA Public Liaison.

    (d) Adverse determinations of requests. A component making an adverse determination denying a request in any respect must notify the requester in writing. Adverse determinations, or denials of requests, include decisions that: The requested record is exempt, in whole or in part, from release pursuant to one or more exemptions under the FOIA, 5 U.S.C. 552; the request does not reasonably describe the records sought; the information requested is not a record subject to the FOIA; the requested record does not exist, cannot be located, or has been destroyed; or the requested record is not readily producible in the form or format sought by the requester. Adverse determinations also include denials involving fees or fee waiver matters or denials for requests for expedited processing.

    (e) Content of the denial. The denial notice must be signed by the component agency head or a designee and will include:

    (1) The name and title or position of the person responsible for the denial;

    (2) A brief statement of the reason or reasons for the denial, including any FOIA exemption or exemptions applied or procedural reasons relied upon by the component in denying the request;

    (3) An estimate of the volume of records or information withheld, in number of pages or in some other reasonable form of estimation. This estimate does not need to be provided if the volume is otherwise indicated through deletions on records disclosed in part, or if providing an estimate would harm an interest protected by the exemption under which the deletion was made;

    (4) A statement that the denial may be appealed as described under Sec. 70.22; and

    (5) A statement notifying the requester of the right to seek dispute resolution services from the Department's FOIA Public Liaison or the Office of Government Information Services (within the National Archives and Records Administration). Engaging in dispute resolution services provided by OGIS is a voluntary process. If the Department agrees to participate in the mediation services provided by OGIS, it will actively engage as a partner to the process in an attempt to resolve the dispute.

    (f) Markings on released documents. Markings on released documents must be clearly visible to the requester. Records disclosed in part shall be marked to show the amount of information deleted and the exemption(s) under which the deletion was made unless doing so would harm an interest protected by an applicable exemption. The location of the information deleted shall also be indicated on the records, if technically feasible.

    § 70.22 Appeals from denial of requests.

    (a) A requester may appeal to the Solicitor of Labor from any adverse determination, including but not limited to when one or more of the following has occurred: A request for access to records has been denied in whole or in part; a requester disputes a determination that records cannot be located or have been destroyed; a requester disputes a determination by a component concerning the assessment or waiver of fees; a requester disputes the denial of a request for expedited processing; or a component fails to respond to a request within the time limits set forth in the FOIA and referenced in 70.25(a). The appeal must be filed within 90 days of the date of the action being appealed.

    (b) The appeal must state in writing the grounds for appeal, and it may include any supporting statements or arguments, but such statements are not required. In order to facilitate processing of the appeal, the appeal should include the assigned request number (if applicable), appellant's mailing address and daytime telephone number, as well as copies of the initial request and the component's response. If mailed, the envelope and the letter of appeal should be clearly marked: “Freedom of Information Act Appeal.” Any amendment to the appeal must be in writing and received prior to a decision on the appeal.

    (c) The appeal should be addressed to the Solicitor of Labor, Office of the Solicitor, FOIA Appeals Unit, Division of Management and Administrative Legal Services, U.S. Department of Labor, 200 Constitution Avenue NW., Room N-2420, Washington, DC 20210. Appeals also may be submitted by fax to 202-693-5538 or by email to [email protected] Appeals submitted to any other email address will not be accepted.

    § 70.23 Action on appeals.

    The Solicitor of Labor, or designee, will review the appellant's appeal and make a determination de novo whether the action of the component was proper and in accordance with the applicable law.

    § 70.24 Form and content of action on appeals.

    The disposition of an appeal will be issued by the Solicitor of Labor or designee in writing. A decision affirming, in whole or in part, the decision below will include a brief statement of the reason or reasons for the affirmance, including the FOIA exemption or exemptions relied upon, and its relation to each record withheld. The appeal determination will advise the requester of the availability of the mediation services of the Office of Government Information Services (OGIS) as a non-exclusive alternative to litigation. The appeal will also notify the requester of the statutory right to judicial review of the denial by the United States District Court for the judicial district in which the requester resides or maintains his or her principal place of business, the judicial district in which the requested records are located, or the District of Columbia. If it is determined on appeal that a record should be disclosed, the record will be provided in accordance with the decision on appeal. If it is determined that records should be denied in whole or in part, the appeal determination will include an estimate of the volume of records or information withheld, in number of pages or in some other reasonable form of estimation. This estimate does not need to be provided if the volume is otherwise indicated through deletions on records disclosed in part, or if providing an estimate would harm an interest protected by an applicable exemption.

    § 70.25 Time limits and order in which requests and appeals must be processed.

    (a) Time limits. The FOIA establishes a 20 business day deadline for regular requests and appeals, and a 10 calendar day time limit for making determinations regarding expedited processing. Components of the Department of Labor will comply with the time limits required by the FOIA for responding to and processing requests and appeals. In instances involving misdirected requests that are re-routed pursuant to § 70.20(c) of this subpart, the response time will commence on the date that the request is received by the proper component's office that is designated to receive requests, but in any event not later than 10 working days after the request is first received by any component's office that is designated by these regulations to receive requests. A component or the designated appeal authority will notify a requester whenever they are unable to respond to or process the request or appeal within the time limits established by the FOIA.

    (b) Multitrack processing. All components must designate a specific track for requests that are granted expedited processing, in accordance with the standards set forth in paragraph (d) of this section. A component may also designate additional processing tracks that distinguish between simple and complex requests based on the estimated amount of work and/or time needed to process the request, including based on the number of pages involved and the need for consultations or referrals. Components shall advise the requesters of the track into which their request falls and, when appropriate, shall offer the requester an opportunity to limit the scope of their requests in order to qualify for faster processing within the specified limits of the component's faster track.

    (c) Unusual circumstances. (1) Where the statutory time limits for processing a request cannot be met because of “unusual circumstances,” as set forth in the FOIA at 5 U.S.C. 552(a)(6)(B)(i)-(iii), and the component determines to extend the time limits on that basis, the component shall, before the expiration of the 20 working day deadline to respond, notify the requester in writing of the unusual circumstances and of the date by which processing of the request can be expected to be completed. If the component intends to extend the deadline to respond by more than ten working days, the component must:

    (i) Provide the requester with an opportunity either to modify the request so that it may be processed within the time limits or to arrange an alternative time period with the component for processing the request or a modified request;

    (ii) Make available to the requester the contact information for the designated FOIA contact and the FOIA Public Liaison to assist the requester; and

    (iii) Notify the requester of the right to seek dispute resolution services from the Office of Government Information Services (OGIS).

    (d) Aggregating requests. Where a component reasonably believes that multiple requests submitted by a requester, or by a group of requesters acting in concert, constitute a single request that would otherwise involve unusual circumstances, and the requests involve clearly related matters, they may be aggregated. Components shall not aggregate multiple requests involving unrelated matters.

    (e) Expedited processing. (1) Requests and appeals will be taken out of order and given expedited treatment whenever it is determined that they involve:

    (i) Circumstances in which the lack of expedited treatment could reasonably be expected to pose an imminent threat to the life or physical safety of an individual;

    (ii) An urgency to inform the public about an actual or alleged federal government activity, if made by a person primarily engaged in disseminating information;

    (iii) The loss of substantial due process rights; or

    (iv) A matter of widespread and exceptional media interest in which there exists possible questions about the government's integrity which affect public confidence.

    (2) A request for expedited processing may be made at the time of the initial request for records or at any later time. For a prompt determination, a request for expedited processing must be received by the proper component. Requests based on paragraphs (e)(1)(i) through (iv) of this section must be submitted to the component that maintains the records requested.

    (3) A requester who seeks expedited processing must submit a statement, certified to be true and correct to the best of that person's knowledge and belief, explaining in detail the basis for requesting expedited processing. For example, a requester within the category in paragraph (e)(1)(ii) of this section, if not a full-time member of the news media, must establish that he or she is a person whose main professional activity or occupation is information dissemination, though it need not be his or her sole occupation. Such a requester also must establish a particular urgency to inform the public about the government activity involved in the request—one that goes beyond the public's general right to know about government activity. The existence of numerous articles published on a given subject can be helpful in establishing the requirement that there be an “urgency to inform” the public on a topic. As a matter of administrative discretion, a component may waive the formality of certification.

    (4) Within ten calendar days of its receipt of a request for expedited processing, the proper component will decide whether to grant the request and will notify the requester of the decision. If a request for expedited treatment is granted, the request will be given priority and will be processed as soon as practicable. If a request for expedited processing is denied, any appeal of that decision will be acted on expeditiously.

    § 70.26 Confidential commercial information.

    (a) In general. Confidential commercial information will be disclosed under the FOIA only in accordance with this section and Executive Order 12,600, “Predisclosure Notification Procedures for Confidential Commercial Information” (3 CFR 1988 Comp., p.235).

    (b) Designation of confidential commercial information. A submitter of confidential commercial information will use good-faith efforts to designate, by appropriate markings, either at the time of submission or at a reasonable time thereafter, any portions of its submission that it considers to be protected from disclosure under Exemption 4. These designations will expire ten years after the date of the submission unless the submitter requests, and provides justification for, a longer designation period.

    (c) Notice to submitters. A component will provide a submitter with prompt written notice of a FOIA request that seeks its confidential commercial information whenever required under paragraph (d) of this section, except as provided in paragraph (g) of this section, in order to give the submitter an opportunity to object in writing to disclosure of any specified portion of that information under paragraph (e) of this section. The notice will either describe the confidential commercial information requested or include copies of the requested records or record portions containing the information. When notification to a voluminous number of submitters is required, notification may be made by posting or publishing notice reasonably likely to accomplish such notification.

    (d) When notice is required. Notice will be given to a submitter whenever:

    (1) The information requested under the FOIA has been designated in good faith by the submitter as information considered protected from disclosure under Exemption 4; or

    (2) A component has reason to believe that the information requested under the FOIA may be protected from disclosure under Exemption 4, but has not yet determined whether the information is protected from disclosure under that exemption or any other applicable exemption.

    (e) Opportunity to object to disclosure. A component will allow a submitter a reasonable time to respond to the notice described in paragraph (c) of this section taking into account the amount of material the submitter has to review and the deadlines imposed by the FOIA or agreed to with the requester. If a submitter has any objection to disclosure, it is required to submit a detailed written statement. The statement must show why the information is a trade secret or commercial or financial information that is privileged or confidential. In the event that a submitter fails to respond to the notice within the time specified, the submitter will be considered to have no objection to disclosure of the information. Information provided by a submitter under this paragraph may itself be subject to disclosure under the FOIA.

    (f) Notice of intent to disclose. A component will consider a submitter's timely objections and specific grounds for non-disclosure in deciding whether to disclose confidential commercial information. Whenever a component decides to disclose confidential commercial information over the objection of a submitter, the component will give the submitter written notice, which will include:

    (1) A statement of the reason(s) why each of the submitter's disclosure objections were not sustained;

    (2) A description of the confidential commercial information to be disclosed; and

    (3) A specified disclosure date, which will be a reasonable time subsequent to the notice.

    (g) Exceptions to notice requirements. The notice requirements of paragraphs (c) and (f) of this section will not apply if:

    (1) The component determines that the information should not be disclosed;

    (2) The information lawfully has been published or has been officially made available to the public;

    (3) Disclosure of the information is required by statute (other than the FOIA) or by a regulation issued in accordance with the requirements of Executive Order 12,600; or

    (4) The designation made by the submitter under paragraph (b) of this section appears obviously frivolous or such a designation would be unsupportable—except that, in such a case, the component will, within a reasonable time prior to a specified disclosure date, give the submitter written notice of any final decision to disclose the information.

    (h) Notice of a FOIA lawsuit. Whenever a requester files a lawsuit seeking to compel the disclosure of confidential commercial information, the component will promptly notify the submitter.

    (i) Corresponding notice to requesters. Whenever a component provides a submitter with notice and an opportunity to object to disclosure under paragraphs (d) and (e) of this section, the component will also notify the requester(s). Whenever a component notifies a submitter of its intent to disclose requested information under paragraph (f) of this section, the component will also notify the requester(s). Whenever a submitter files a lawsuit seeking to prevent the disclosure of confidential commercial information, the component will notify the requester(s).

    (j) Notice requirements. The component will fulfill the notice requirements of this section by addressing the notice to the confidential commercial submitter or its legal successor at the address indicated on the records, or the last known address. If the notice is returned, the component will make a reasonable effort to locate the confidential commercial submitter or its legal successor. Where notification of a voluminous number of submitters is required, such notification may be accomplished by posting and publishing the notice in a place reasonably calculated to accomplish notification.

    § 70.27 Preservation of records.

    Each component will preserve all correspondence relating to the requests it receives under this part, and all records processed pursuant to such requests, until disposition or destruction of such correspondence and records is authorized by Title 44 of the United States Code or the National Archives and Records Administration's General Records Schedule 4.2. Records are not to be destroyed while they are the subject of a pending request, appeal, or lawsuit under the Act.

    §§ 70.28-70.37 [Reserved]
    Subpart C—Costs for Production of Records
    § 70.38 Definitions related to costs.

    The following definitions apply to this subpart:

    (a) Request, in this subpart, includes any request, as defined by § 70.2(f) of this part.

    (b) Direct costs means those expenditures which a component actually incurs in searching for and duplicating (and in the case of commercial use requests, reviewing) records to respond to a FOIA request. Direct costs include, for example, the salary of the Federal employee performing work (the basic rate of pay for the Federal employee plus 16 percent of that rate to cover benefits) and the cost of operating duplication machinery. Not included in direct costs are overhead expenses such as costs of space, heating or lighting the facility in which the records are kept.

    (c) Duplication means the process of making a copy of a record necessary to respond to a request. Such copy can take the form of paper, microform, audio-visual materials or electronic records (such as a CD or other media).

    (d) Search means the process of looking for and retrieving records or information that are responsive to a FOIA request. It includes page-by-page or line-by-line identification of information within records and also includes reasonable efforts to locate and retrieve information from records maintained in electronic form or format. FOIA components will ensure that searches are done in the most efficient and least expensive manner reasonably possible. A search does not include the review of material, as defined in paragraph (e) of this section, which is performed to determine whether material is exempt from disclosure.

    (e) Review means the process of examining records, including audio-visual, electronic mail, etc., located in response to a request to determine whether any portion of the located record is exempt from disclosure, and accordingly may be withheld. It also includes the act of preparing materials for disclosure, i.e., doing all that is necessary to excise them and otherwise prepare them for release. Review time includes time spent contacting any submitter, and considering and responding to any objections to disclosure made by a submitter under Sec. 70.26, but does not include time spent resolving general legal or policy issues regarding the application of exemptions.

    (f) Commercial use request means a request from or on behalf of a person who seeks information for a use or purpose that furthers his or her commercial, trade or profit interests, which can include furthering those interests through litigation. When considering fee issues, components will determine, whenever reasonably possible, the use to which a requester will put the requested records. When it appears that the requester will put the records to a commercial use, either because of the nature of the request itself or because a component has reasonable cause to doubt a requester's stated use, the component will provide the requester a reasonable opportunity to submit further clarification.

    (g) Educational institution means an institution which:

    (1) Is a preschool, public or private elementary or secondary school, an institution of undergraduate higher education, an institution of graduate higher education, an institution of professional education, or an institution of vocational education; or

    (2) Operates a program or programs of scholarly research. To qualify under this definition, the program of scholarly research in connection with which the information is sought must be carried out under the auspices of the academic institution itself as opposed to the individual scholarly pursuits of persons affiliated with an institution. For example, a request from a professor predicated upon research funding granted to the institution would meet its requirements. A request from a professor seeking information that will assist in the writing of a book, independent of his or her institutional responsibilities, would not qualify under this definition.

    (h) Non-commercial scientific institution means an institution that is not operated on a commercial basis and that is operated solely for the purpose of conducting scientific research, the results of which are not intended to promote any particular product or industry.

    (i) Representative of the news media means any person or entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience. Examples of news media entities include television or radio stations that broadcast “news” to the public at large and publishers of periodicals that disseminate “news” and make their products available through a variety of means to the general public, as well as news organizations that operate solely on the internet. Alternative media may be considered to be news media entities. These examples are not all inclusive.

    (1) Factors indicating status as a news media representative include press accreditation, guild membership, a history of continuing publication, business registration, and/or Federal Communication Commission licensing, among others.

    (2) For purposes of this definition, news contemplates information that is about current events or that would be of current interest to the public.

    (3) A freelance journalist will be treated as a representative of the news media if the person can demonstrate a solid basis for expecting publication of matters related to the requested information through a news media entity. A publication contract with a news media entity satisfies this requirement. An individual's past publication record with such organizations is also relevant in making this determination.

    § 70.39 Statutes specifically providing for setting of fees.

    This subpart will not apply to fees charged under any statute, other than the FOIA, that specifically requires an agency to set and collect fees for particular types of records.

    § 70.40 Charges assessed for the production of records.

    (a) General. Components shall charge for processing requests under the FOIA in accordance with the provisions of this section and with the OMB Guidelines. In order to resolve any fee issues that arise under this section, a component may contact a requester for additional information. Components will ensure that searches, review, and duplication are conducted in the most efficient and least expensive manner. A component ordinarily will collect all applicable fees before sending copies of records to the requester.

    (b) Types of charges. There are three types of charges assessed in connection with the production of records in response to a request, specifically, charges for costs associated with:

    (1) Searching for or locating responsive records (search costs),

    (2) Duplicating such records (duplication costs), and

    (3) Reviewing records to determine whether any materials are exempt (review costs).

    (c) Types of requesters. (1) There are four types of requesters:

    (i) Commercial use requesters,

    (ii) Educational and non-commercial scientific institutions,

    (iii) Representatives of the news media, and

    (iv) All other requesters.

    (2) Depending upon the type of requester, as set forth in paragraph (c)(1) of this section, the charges outlined in paragraph (d) of this section may be assessed.

    (d) Types of charges that will be assessed for each type of request—(1) Commercial use request. When a requester makes a commercial use request, search costs, duplication costs and review costs will be assessed in their entirety.

    (2) Educational or non-commercial scientific institution request. When an educational or non-commercial scientific institution makes a request, only duplication costs will be assessed, excluding charges for the first 100 pages.

    (3) Request by representative of news media. When a representative of the news media makes a request, only duplication costs will be assessed, excluding charges for the first 100 pages.

    (4) All other requesters. Requesters making a request which does not fall within paragraph (d)(1), (2), or (3) of this section will be charged search costs and duplication costs, except that the first 100 pages of duplication and the first two hours of search time will be furnished without charge. Where computer searches are involved, the monetary equivalent of two hours of search time by a professional employee will be deducted from the total cost of computer processing time.

    (e) Charges for each type of activity—(1) Search costs. (i) When a search for records is performed by a clerical employee, a rate of $5.00 per quarter hour will be applicable. When a search is performed by professional or supervisory personnel, a rate of $10.00 per quarter hour will be applicable. Components will charge for time spent searching even if they do not locate any responsive records or they withhold the records located as exempt from disclosure.

    (ii) For computer searches of records, requesters will be charged the direct costs of conducting the search, except as provided in paragraph (e)(4) of this section.

    (2) Duplication costs. The standard copying charge for records in black and white paper copy is $0.15 per page. This charge includes the operator's time to duplicate the record. When responsive information is provided in a format other than 81/2 x 11 or 11 x 14 inch black and white paper copy, such as computer tapes, disks and color copies, the requester may be charged the direct costs of the tape, disk, audio-visual or whatever medium is used to produce the information, as well as the direct cost of duplication, including operator time.

    (3) Review costs. Costs associated with the review of records, as defined in § 70.38(e), will be charged for work performed by a clerical employee at a rate of $5.00 per quarter hour when applicable. When professional or supervisory personnel perform work, a rate of $10.00 per quarter hour will be charged, when applicable. Except as noted in this paragraph, charges may only be assessed for review the first time the records are analyzed to determine the applicability of specific exemptions to the particular record or portion of the record. Thus a requester would not be charged for review at the administrative appeal level with regard to the applicability of an exemption already applied at the initial level. When, however, a record has been withheld pursuant to an exemption which is subsequently determined not to apply and is reviewed again at the appellate level to determine the potential applicability of other exemptions, the costs attendant to such additional review will be assessed.

    (4) Limitations on charging fees. If a component fails to comply with the time limits in which to respond to a request, it shall not assess certain fees except:

    (i) If there are unusual circumstances (as that term is defined in § 70.25(c)) and the component has provided timely written notice, the component is permitted ten additional days to respond to the request. After the expiration of the ten additional days, the component is no longer permitted to assess search fees or, in the instances of requests from requesters described in § 70.38(h) and (i), duplication fees except as described in paragraph (e)(4)(ii) of this section.

    (ii) If there are unusual circumstances (as that term is defined in § 70.25(c)), and more than 5,000 pages of documents are necessary to respond to the request, the component may continue to charge assessable fees for as long as it takes to process the request, provided that the component has provided timely written notice and discussed with the requester via telephone, email, or written mail (or made at least three good-faith attempts to do so) how the requester could effectively limit the scope of the pending request.

    (iii) If a court has determined that exceptional circumstances exist, as defined in the FOIA, 5 U.S.C. 552(a)(6)(C) the agency's failure to comply with any time limits of the FOIA are excused for the length of time provided by the court order.

    (5) Mailing cost. Where responses are sent by mail, no postage charge will be made for transmitting by regular mail a single copy of the requested record to the requester, or for mailing additional copies where the total postage cost does not exceed $5.00. However, where the volume of paper or other produced material or the requested method of transmittal requested is in excess of $5.00, the transmittal costs will be added.

    (f) Aggregating requests for purposes of assessing costs. (1) Where a component reasonably believes that a requester or a group of requesters acting together is attempting to divide a request into a series of requests for the purpose of avoiding fees, the disclosure officer may aggregate those requests and charge accordingly.

    (2) Components may presume that multiple requests of this type made within a 30-day period have been submitted in order to avoid fees. Where requests are separated by a longer period, disclosure officers will aggregate them only where a solid basis exists for determining that aggregation is warranted under all of the circumstances involved. Multiple requests involving unrelated matters will not be aggregated.

    (g) Interest charges. Components will assess interest on an unpaid bill starting on the 31st day following the date of billing the requester. Interest charges will be assessed at the rate provided in 31 U.S.C. 3717 and will accrue from the date of the billing until payment is received by the component. Components will follow the provisions of the Debt Collection Act of 1982 (Pub. L. 97-365, 96 Stat. 1749), as amended, and its administrative procedures, including the use of consumer reporting agencies, collection agencies, and offset.

    (h) Authentication of copies—(1) Fees. The FOIA does not require certification or attestation under seal of copies of records provided in accordance with its provisions. Pursuant to provisions of the general user-charger statute, 31 U.S.C. 9701 and Subchapter II of title 29 U.S.C., the following charges will be made when, upon request, such services are rendered by the agency in its discretion:

    (i) For certification of true copies, $10.00 each certification.

    (ii) For attestation under the seal of the Department, $10.00 each attestation under seal.

    (2) Authority and form for attestation under seal. Authority is hereby given to any officer or officers of the Department of Labor designated as authentication officer or officers of the Department to sign and issue attestations under the seal of the Department of Labor.

    (i) Transcripts. Fees for transcripts of an agency proceeding, as defined in the Administrative Procedure Act, 5 U.S.C. 5521(12) will be assessed in accordance with the provisions of this subpart.

    (j) Privacy Act requesters. A request from an individual or on behalf of an individual for a record maintained by that individual's name or other unique identifier which is contained within a component's system of records, will be treated under the fee provisions at 29 CFR 71.6.

    § 70.41 Waiver or reduction of fees.

    (a) Requirements for waiver or reduction of fees. (1) Records responsive to a request will be furnished without charge or at a charge reduced below that established under § 70.40(e) of this subpart, where a component determines, based on all available information, that the requester has demonstrated that:

    (i) Disclosure of the requested information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government, and

    (ii) Disclosure of the information is not primarily in the commercial interest of the requester.

    (2) To determine whether the requirement of paragraph (a)(1)(i) of this section is met, components will consider the following factors:

    (i) The subject of the request: Whether the subject of the requested records concerns “the operations or activities of the government.” The subject of the requested records must concern identifiable operations or activities of the federal government, with a connection that is direct and clear, not remote or attenuated.

    (ii) The informative value of the information to be disclosed: Whether the disclosure is “likely to contribute” to an understanding of government operations or activities. The disclosable portions of the requested records must be meaningfully informative about government operations or activities in order to be “likely to contribute” to an increased public understanding of those operations or activities. The disclosure of information that already is in the public domain, in either a duplicative or a substantially identical form, would not be as likely to contribute to such understanding where nothing new would be added to the public's understanding.

    (iii) The contribution to an understanding of the subject by the public likely to result from disclosure: Whether disclosure of the requested information will contribute to “public understanding.” The disclosure must contribute to the understanding of a reasonably broad audience of persons interested in the subject, as opposed to the individual understanding of the requester. A requester's expertise in the subject area and ability and intention to effectively convey information to the public will be considered. It will be presumed that a representative of the news media will satisfy this consideration.

    (iv) The significance of the contribution to public understanding: Whether the disclosure is likely to contribute “significantly” to the public understanding of government operations or activities. The public's understanding of the subject in question must be enhanced by the disclosure to a significant extent.

    (3) To determine whether the requirement of paragraph (a)(1)(ii) of this section is met, components will consider the following factors:

    (i) The existence and magnitude of a commercial interest: Whether the requester has a commercial interest that would be furthered by the requested disclosure. The component will consider any commercial interest of the requester (with reference to the definition of “commercial use request” in § 70.38(f) of this subpart), or of any person on whose behalf the requester may be acting, that would be furthered by the requested disclosure. Requesters will be given an opportunity in the administrative process to provide explanatory information regarding this consideration.

    (ii) The primary interest in disclosure: Whether any identified commercial interest of the requester is sufficiently large, in comparison with the public interest in disclosure, that disclosure is “primarily in the commercial interest of the requester.” A fee waiver or reduction is justified where the public interest standard is satisfied and that public interest is greater in magnitude than that of any identified commercial interest in disclosure. The component ordinarily will presume that where a news media requester has satisfied the public interest standard, the public interest will be the interest primarily served by disclosure to that requester. Disclosure to data brokers or others who merely compile and market government information for direct economic return will not be presumed to primarily serve the public interest.

    (4) Where only some of the records to be released satisfy the requirements for a waiver of fees, a waiver will be granted only for those records.

    (5) Requests for the waiver or reduction of fees should address the factors listed in paragraph (a) of this section, insofar as they apply to each request.

    (b) Submission. Requests for a waiver or reduction of fees should be made when the request is first submitted to the component and should address the criteria referenced above. A requester may submit a fee waiver request at a later time so long as the underlying record request is pending or on administrative appeal. When a requester who has committed to pay fees subsequently asks for a waiver of those fees and that waiver is denied, the requester will be required to pay any costs incurred up to the date the fee waiver request was received.

    (c) Appeal rights. Requesters dissatisfied with treatment of fee waiver or reduction requests may follow the procedures for appeal under Sections 70.22 and 70.23.

    § 70.42 Consent to pay fees.

    (a) The Department will not assess or collect fees where the fee to be assessed, after deducting any free pages and/or search time, is less than $25.00. When making a request, a requester may specify a willingness to pay up to a certain amount, e.g., $50.00 or $200.

    (b) No request will be processed if a component reasonably believes that the fees are likely to exceed the amount to which the requester has originally consented, absent supplemental written consent by the requester to proceed after being notified of this determination.

    (c) When a component determines or estimates that the fees to be assessed in accordance with this section will exceed $25.00, the component shall notify the requester of the actual or estimated amount of the fees, including a breakdown of the fees for search, review or duplication, unless the requester has indicated a willingness to pay fees as high as those anticipated. If only a portion of the fee can be estimated readily, the component must advise the requester accordingly. Such notice may invite the requester to reformulate the request to satisfy his or her needs at a lower cost.

    (d) Components must make available their FOIA contact to assist any requester in reformulating a request to meet the requester's needs at a lower cost.

    § 70.43 Payment of fees.

    (a) De minimis costs. As noted in § 70.42(a) of this subpart, the Department has determined it will not assess or collect fees below $25.00. In these cases, the cost of collecting and processing a fee equals or exceeds the amount of the fee which would otherwise be assessed. The Department will assess fees where the costs to be assessed, after deduction of any free pages and/or search time, is $25.00 or higher.

    (b) How payment will be made. Requesters will pay fees assessed by check or money order made payable to the Treasury of the United States, and sent to the component that is processing the request.

    (c) Advance payments and billing. (1) Prior to beginning to process a request, the component will make a preliminary assessment of the amount that can properly be charged to the requester for search and review time and copying costs. Where a component determines or estimates that a total fee to be charged under this section will be more than $250.00, the component will require the requester to make an advance payment of an amount up to the entire anticipated fee before beginning to process the request. The component may waive the advance payment where the component receives a satisfactory assurance of full payment from a requester who has a history of prompt payment of an amount similar to the one anticipated by the request.

    (2) Where a requester has previously failed to pay a properly charged FOIA fee to any component of the Department of Labor within 30 days of the date of billing, a component will require the requester to pay the full amount due, plus any applicable interest as provided in Sec. 70.40(f) and to make an advance payment of the full amount of any anticipated fee, before the component begins to process a new request or appeal or continues to process a pending request or appeal from that requester.

    (3) For a request other than those described in paragraphs (c)(1) and (2) of this section, a component will not require the requester to make an advance payment before beginning to process a request. Payment owed for work already completed on a request pursuant to consent of the requester is not an advance payment and a component may require the requester to make a payment for such work prior to releasing any records to the requester.

    (d) Time limits to respond extended when advance payments are requested. When a component has requested an advance payment of fees in accordance with paragraph (c) of this section, the time limits prescribed in Sec. 70.25 will only begin to run after the component has received the advance payment.

    § 70.44 Other rights and services.

    Nothing in this subpart will be construed to entitle any person, as of right, to any service or to the disclosure of any records to which such person is not entitled under the FOIA.

    §§ 70.45-70.52 [Reserved]
    Subpart D—Public Records and Filings
    § 70.53 Office of Labor-Management Standards.

    (a) The following documents in the custody of the Office of Labor-Management Standards are public information available for inspection and/or purchase of copies in accordance with paragraphs (b) and (c) of this section.

    (1) Data and information contained in any report or other document filed pursuant to sections 201, 202, 203, 211, 301 of the Labor-Management Reporting and Disclosure Act of 1959 (73 Stat. 524-28, 530, 79 Stat. 888, 73 Stat. 530, 29 U.S.C. 431-433, 441, 461).

    (2) Data and information contained in any report or other document filed pursuant to the reporting requirements of 29 CFR part 458, which are the regulations implementing the standards of conduct provisions of the Civil Service Reform Act of 1978, 5 U.S.C. 7120, and the Foreign Service Act of 1980, 22 U.S.C. 4117. The reporting requirements are found in 29 CFR 458.3.

    (3) Data and information contained in any report or other document filed pursuant to the Congressional Accountability Act of 1995, 2 U.S.C. 1351, 109 Stat. 19.

    (b) The documents listed in paragraph (a) of this section are available from: U.S. Department of Labor, Office of Labor-Management Standards, Public Disclosure Room, N-1519, 200 Constitution Avenue NW., Washington, DC 20210. Reports filed pursuant to section 201 of the Labor-Management Reporting and Disclosure Act of 1959 and pursuant to 29 CFR 458.3 implementing the Civil Service Reform Act of 1978 and the Foreign Service Act of 1980 for the year 2000 and thereafter are also available at http://www.union-reports.dol.gov.

    (c) Pursuant to 29 U.S.C. 435(c) which provides that the Secretary will by regulation provide for the furnishing of copies of the documents listed in paragraph (a) of this section, upon payment of a charge based upon the cost of the service, these documents are available at a cost of $ .15 per page for record copies furnished. Authentication of copies is available in accordance with the fee schedule established in Sec. 70.40. In accordance with 5 U.S.C. 552(a)(4)(A)(vi), the provisions for fees, fee waivers and fee reductions in subpart C of this part do not supersede these charges for these documents.

    (d) Upon request of the Governor of a State for copies of any reports or documents filed pursuant to sections 201, 202, 203, or 211 of the Labor-Management Reporting and Disclosure Act of 1959 (73 Stat. 524-528, 79 Stat. 888; 29 U.S.C. 431-433, 441), or for information contained therein, which have been filed by any person whose principal place of business or headquarters is in such State, the Office of Labor-Management Standards will:

    (1) Make available without payment of a charge to the State agency designated by law or by such Governor, such requested copies of information and data, or

    (2) Require the person who filed such reports and documents to furnish such copies or information and data directly to the State agency thus designated.

    § 70.54 Employee Benefits Security Administration.

    (a) The annual financial reports (Form 5500) and attachments/schedules as filed by employee benefit plans under the Employee Retirement Income Security Act (ERISA) are in the custody of the Employee Benefits Security Administration (EBSA) at the address indicated in paragraph (b) of this section, and the right to inspect and copy such reports, as authorized under ERISA, at the fees set forth in this part, may be exercised at such office.

    (b) The mailing address for the documents described in this section is: U.S. Department of Labor, Employee Benefits Security Administration, Public Documents Room, 200 Constitution Avenue NW., Washington, DC 20210.

    Appendix A to Part 70—FOIA Components

    The following list identifies the individual agency components of the Department of Labor for the purposes of the FOIA. Each component is responsible for making records in its custody available for inspection and copying, in accordance with the provisions of the FOIA and this part. Unless otherwise specified, the mailing addresses for the following national office components are listed below. Updated contact information for national and regional offices can be found on the DOL Web site at http://www.dol.gov/dol/foia.

    U.S. Department of Labor 200 Constitution Avenue NW. Washington, DC 20210.

    1. Office of the Secretary (OSEC).

    2. Office of the Solicitor (SOL).

    3. Office of Administrative Law Judges (ALJ), 800 K Street NW., Suite N-400, Washington, DC 20001-8002.

    4. Office of the Assistant Secretary for Administration and Management (OASAM).

    5. Office of the Assistant Secretary for Policy (OASP).

    6. Office of the Chief Financial Officer (OCFO).

    7. Office of Congressional and Intergovernmental Affairs (OCIA).

    8. Office of Disability Employment Policy (ODEP).

    9. Office of Federal Contract Compliance Programs (OFCCP).

    10. Office of the Inspector General (OIG).

    11. Office of Labor Management Standards (OLMS).

    12. Office of Public Affairs (OPA).

    13. Office of Workers' Compensation Programs (OWCP).

    14. Bureau of International Labor Affairs (ILAB).

    15. Bureau of Labor Statistics (BLS), Postal Square Building, Room 4040, 2 Massachusetts Avenue NE., Washington, DC 20212-0001.

    16. Employment and Training Administration (ETA). Job Corps (part of ETA).

    17. Mine Safety and Health Administration (MSHA), 201 12th Street, South, Arlington, Virginia 22202.

    18. Occupational Safety and Health Administration (OSHA).

    19. Employee Benefits Security Administration (EBSA).

    20. Veterans' Employment and Training Service (VETS).

    21. Employees' Compensation Appeals Board (ECAB).

    22. Administrative Review Board (ARB).

    23. Benefits Review Board (BRB).

    24. Wage and Hour Division (WHD).

    25. Women's Bureau (WB).

    Appendix B to Part 70—[Reserved]
    Thomas E. Perez, Secretary of Labor .
    [FR Doc. 2017-00453 Filed 1-19-17; 8:45 am] BILLING CODE P
    DEPARTMENT OF LABOR Mine Safety and Health Administration 30 CFR Parts 56 and 57 [Docket No. MSHA-2014-0030] RIN 1219-AB87 Examinations of Working Places in Metal and Nonmetal Mines AGENCY:

    Mine Safety and Health Administration, Labor.

    ACTION:

    Final rule.

    SUMMARY:

    The Mine Safety and Health Administration's final rule amends the Agency's standards for the examination of working places in metal and nonmetal mines. This final rule requires that an examination of the working place be conducted before miners begin working in that place, that operators notify miners in the affected areas of any conditions found that may adversely affect their safety or health, that operators promptly initiate corrective action, and that a record be made of the examination. The final rule also requires that the examination record include: The name of the person conducting the examination, the date of the examination, the location of all areas examined, a description of each condition found that may adversely affect the safety or health of miners, and the date of the corrective action. In addition, the final rule requires that mine operators make the examination record available for inspection by authorized representatives of the Secretary and miners' representatives and provide a copy upon request.

    DATES:

    Effective date: May 23, 2017.

    FOR FURTHER INFORMATION CONTACT:

    Sheila A. McConnell, Director, Office of Standards, Regulations, and Variances, MSHA, at [email protected] (email); 202-693-9440 (voice); or 202-693-9441 (facsimile).

    SUPPLEMENTARY INFORMATION:

    Table of Contents I. Introduction A. Statutory and Regulatory History B. Executive Order 12866 Summary C. Background Information II. Section-by-Section Analysis III. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review IV. Feasibility V. Regulatory Flexibility Analysis and Small Business Regulatory Enforcement Fairness Act VI. Paperwork Reduction Act of 1995 VII. Other Regulatory Considerations VIII. References Availability of Information

    Federal Register Publications: Access rulemaking documents electronically at http://www.msha.gov/regsinfo.htm or http://www.regulations.gov [Docket Number: MSHA-2014-0030]. Obtain a copy of a rulemaking document from the Office of Standards, Regulations, and Variances, MSHA, by request to 202-693-9440 (voice) or 202-693-9441 (facsimile). (These are not toll-free numbers.)

    Email Notification: MSHA maintains a list that enables subscribers to receive an email notification when the Agency publishes rulemaking documents in the Federal Register. To subscribe, go to http://www.msha.gov/subscriptions/subscribe.aspx.

    I. Introduction

    Under the Mine Act, mine operators, with the assistance of miners, have the primary responsibility to prevent the existence of unsafe and unhealthful conditions and practices. Operator compliance with safety and health standards and implementation of safe work practices provide a substantial measure of protection against hazards that cause accidents, injuries, and fatalities. The Mine Safety and Health Administration (MSHA) has determined that examinations of working places are an important part of an effective accident prevention strategy; they are a first line of defense because they allow operators to find and fix conditions. The existing standards for metal and nonmetal (MNM) mines requiring that workplace examinations be conducted at least once each shift potentially expose miners to adverse conditions during the shift because mine operators can perform the workplace examination anytime during the shift, which exposes miners to adverse conditions during the shift before any corrective action is taken. The final rule, like the proposed rule, amends this provision to require that each working place be examined before miners or other employees begin work in that place. The new requirement that mine operators notify miners of adverse conditions in their working places will make miners aware of such conditions and allow them to take appropriate protective measures or avoid the adverse conditions altogether until such conditions are corrected.

    The existing standards do not require the operator to include in the record adverse conditions that may contribute to an accident, injury, or fatality, or to document that corrective actions were taken. MSHA believes that by making a record of adverse conditions, mine operators and miners will become more proactive in their approach to correcting adverse conditions and avoiding reoccurrences, thereby improving the protection of miners.

    In addition, the final rule requires that mine operators make the examination record available for inspection by authorized representatives of the Secretary and miners' representatives and provide a copy upon request. Under the Mine Act, mine operators, with the assistance of miners, have the primary responsibility to prevent the existence of adverse conditions, which is why MSHA concluded that the final rule should require operators to make examination records available to miners' representatives as well as provide copies of such records to them upon request.

    The final rule will result in more effective and consistent working place examinations by helping to ensure that adverse conditions will be timely identified, communicated to miners, and corrected, thereby improving miners' safety and health.

    A. Statutory and Regulatory History

    On July 31, 1969, MSHA's predecessor, the Department of the Interior's Bureau of Mines, published a final rule (34 FR 12503) addressing health and safety standards for Metal and Nonmetallic Open Pit Mines; Sand, Gravel, and Crushed Stone Operations; and Metal and Nonmetallic Underground Mines. These standards were promulgated pursuant to the 1966 Federal Metal and Nonmetallic Mine Safety Act (MNM Act). The final rule included some mandatory standards and some advisory standards. The final rule set forth advisory standards at §§ 55.18-8, 56.18-8, and 57.18-8 stating that each working place “should be visited by a supervisor or a designated person at least once each shift and more frequently as necessary to insure that work is being done in a safe manner.”

    The Federal Mine Safety and Health Act of 1977 (Mine Act) amended the Federal Coal Mine Health and Safety Act of 1969 (Coal Act) to include MNM mines and repealed the MNM Act. The Mine Act retained the mandatory standards and regulations promulgated under the Coal Act and the MNM Act. In addition, section 301(b)(2) of the Mine Act required the Secretary of Labor to establish an advisory committee to review all advisory standards under the MNM Act and to either revoke them or make them mandatory (with or without revision). On August 17, 1979 (44 FR 48490), MSHA revised, renumbered, and made mandatory the Agency's advisory standards regarding working place examinations. This resulted in standards, set forth at §§ 55.18-2, 56.18-2, and 57.18-2, that were the same as the language that currently exists at §§ 56.18002 and 57.18002.

    On January 29, 1985 (50 FR 4048), MSHA combined and recodified the standards in 30 CFR parts 55 and 56 into a single part 56 that applies to all surface MNM mines. As a part of this effort, the MNM working place examination standards were redesignated as 30 CFR 56.18002 (surface) and 57.18002 (underground). No change was made to the language of the standards.

    On June 8, 2016 (81 FR 36818), MSHA published a proposed rule on Examinations of Working Places in Metal and Nonmetal Mines. The Agency received comments on the proposed rule and held four public hearings in July and August 2016. These hearings were held in Salt Lake City, Utah; Pittsburgh, Pennsylvania; Arlington, Virginia; and Birmingham, Alabama. On August 25, 2016, in response to stakeholder requests, MSHA published a document in the Federal Register (81 FR 58422) extending the deadline for submission of comments from September 6, 2016, to September 30, 2016.

    B. Executive Order 12866 Summary

    MSHA is not claiming a monetized benefit for this rule. MSHA anticipates, however, that there will be benefits from the final rule as a result of more effective and consistent working place examinations that will help to ensure that adverse conditions will be timely identified, communicated to miners, and corrected. MSHA anticipates that the enhanced record requirements will improve accident prevention by helping mine operators identify any patterns or trends of adverse conditions and preventing these conditions from recurring. In response to comments, MSHA reviewed studies that examined the effectiveness of programs for the monitoring, detecting, and correction of hazards. Maxey (2013) 1 found that injury and illness prevention programs help employers find hazards and fix them before injuries, illnesses, or deaths occur. Maxey's article notes one study which showed that after a short period, five States that implemented injury and safety programs that have the basic elements common in safety and health programs saw reductions in accidents ranging from 17.4 to 23 percent (Huang et al., 2009). In another study cited by Maxey, the author found that mandatory injury and illness prevention programs were effective in reducing injury and illness incidence rates (Smitha et al., 2001).

    1 Maxey, H., Safety & Small Business, 2013, pp.12-22. http://www.asse.org/assets/1/7/Maxey_TheCompass.pdf. The article points out that 34 states, OSHA, and many other nations require safety and health programs that include monitoring, detecting, and correction of hazards and that have resulted in substantial reduction in loss of life and reduced injuries.

    In response to comments, MSHA also notes that it is not the only regulatory agency to recognize the importance of working place examinations and records of examinations. The West Virginia Office of Miners' Health, Safety and Training revised its rules that govern the safety of those employed in and around quarries. The new rulemaking that went into effect July 1, 2015 requires daily inspection of working places and records, among other requirements, and this includes: (1) Examinations within 3 hours prior to the beginning of any shift; and (2) that records be made of hazardous conditions or violations and the action taken to correct them.

    MSHA estimates that the final rule will result in $34.5 million in annual costs for the MNM industry: $10.6 million for mines with 1-19 employees; $22.2 million for mines with 20-500 employees; and $1.7 million for mines with 501+ employees. The Agency estimates that the total undiscounted cost of the final rule over 10 years will be $345.1 million; at a 3 percent discount rate, $294.4 million; and at a 7 percent discount rate, $242.4 million. Additional details on MSHA's analysis are found in Section III of this preamble.

    C. Background Information

    Mining continues to be one of the nation's most hazardous occupations. Mining operations have dynamic work environments where working conditions can change rapidly and without warning. For this rulemaking, MSHA reviewed accident investigation reports from January 2010 through mid-December 2015. During this period 122 miners were killed in 110 accidents at MNM mines. MSHA conducted investigations into each of these 110 fatal accidents of which 16 accidents (18 fatalities) citations were issued to mine operators for unwarrantable failure to comply for purposes of Section 104(d) of the Mine Act. Because unwarrantable failures involve serious conditions that the operator should have known about, MSHA believes that for these 16 accidents, had the person making the examination recorded these adverse conditions, the records may have alerted operators to take prompt corrective action thus preventing the accidents.

    II. Section-by-Section Analysis A. Sections 56.18002(a) and 57.18002(a)—Requirements for Conducting Working Place Examinations

    Final §§ 56.18002(a) and 57.18002(a), like the existing standards and proposed rule, require that a competent person designated by the operator examine each working place at least once each shift for conditions that may adversely affect safety or health. The existing standards permit the examination to be made at any time during the shift. The final rule, like the proposed rule, requires that the competent person examine each working place before miners begin work in that place.

    In the proposed rule, MSHA requested specific comments on whether the Agency should require that examinations be conducted within a specified time period, (e.g., 2 hours) before miners start work in an area. Many commenters did not support the proposed provision but did support the existing standards, which do not specify a time frame for the working place examination to be conducted. Some commenters rejected a 2-hour time frame before miners start work as arbitrary; other commenters with operations with shifts that begin before daylight opposed any specified time period. A commenter interpreted the 2-hour time period mentioned in the proposal to mean that, if miners do not enter the area within a 2-hour window, but instead enter 3 hours after the examination was made, the area would have to be reexamined. A few commenters suggested that the examination be performed as close to the start of the next shift as possible, but no more than 2 hours. One commenter who supported conducting the working place examinations before miners begin working in that place did support a 2-hour time period, unless only one employee is responsible for examining multiple areas. In that case, the commenter stated that additional time would be needed for the one employee to inspect each area properly.

    Some commenters suggested that examinations should start immediately before a shift begins. One commenter stated that making the examinations prior to someone working in that area is common sense. Several commenters supported conducting the examination before work begins as this practice alerts miners of adverse conditions before they begin work.

    Another commenter stated that the wording of the proposed rule, “before miners begin work” and “once each shift”, creates ambiguity and implies that the working place examination would occur during each shift but before miners begin work. MSHA acknowledges that, in the existing rule, “once each shift” may have been interpreted to mean “once during each shift.” However, for this final rule, MSHA clarifies that “once each shift” means that examinations must be conducted at least once for each separate shift.

    The final rule provides mine operators flexibility on when to conduct an examination. Operators, however, should use their judgment to ensure that the time between the examination and the start of work is such that the operator would reasonably not expect conditions in the examined area to have been able to change adversely during that period. Thus, operators have the flexibility to determine how close in time the examination must be performed based on conditions in the mine and how dynamic those conditions are.

    Moreover, examinations can be conducted before or after the shift begins, so long as the examinations are conducted close in time “before work begins.” We note that this allows for the competent person to examine a work area before workers begin working there, rather than requiring the competent person to examine all possible work areas before a shift can begin.

    Another commenter opposed the requirement to conduct the examination prior to beginning work, noting that MSHA's existing standards for surface coal mines in § 77.1713 requires an examination “at least once during each working shift, or more often if necessary.” The commenter further stated that, due to the physical and operational differences between underground and surface mining, conducting a workplace examination before work begins in a surface mine is more burdensome than in an underground mine. MSHA recognizes that there are operational differences between surface and underground mining. In recognition of these differences, the final rule only requires that the operator examine each working place before miners begin work in that place. As stated during the rulemaking process and as is the practice under the existing rule, if miners are not scheduled for work in a particular area or place in the mine, that place does not need to be examined. Similarly, if miners are not scheduled to work for some time (e.g., 4 hours) after the shift begins; the final rule would only require that the examination be performed prior to the beginning of work. Therefore, the final rule provides mine operators the needed flexibility on how to structure workplace examinations so that operational differences between surface and underground mines can be addressed and limit any additional burden.

    Other commenters indicated that the proposed provision would limit mine operators to a single examination. Some of these commenters stated that an examination before work begins may not ensure all hazards are addressed, noting that since mining is dynamic and conditions are always changing, adverse conditions need to be addressed as they occur. Another commenter stated that while an industry standard practice is to examine for unsafe conditions before miners begin work in an area, unsafe conditions can occur anytime during a shift. Therefore, these conditions must be identified and corrected throughout the shift, not just at the beginning.

    MSHA agrees with comments indicating that because mine conditions are subject to change, mine operators and miners need to be aware of conditions that may occur at any time that could affect the safety and health of miners. As discussed above, examinations must be conducted sufficiently close in time to the start of work that the operator would not reasonably expect conditions to have changed. Moreover, the final rule does not limit operators to a single examination or prevent ongoing examinations throughout the shift. The final rule, like the proposed rule, requires examinations “at least” once per shift before miners begin work in that place. However, operators should continue to identify and correct adverse conditions in the workplace regardless of when they occur.

    A number of commenters representing both small and large operations were concerned that conditions such as lack of daylight and inclement weather make it impractical or impossible to conduct a workplace examination at the beginning of a shift or even within 2 hours of a shift. Some commenters suggested that MSHA modify the proposed requirement to allow mine examinations to begin at the beginning of a shift at daybreak and continue throughout a shift as mining conditions change. As stated earlier, under the final rule, operators must conduct a workplace examination before miners begin work in an area. The Agency assumes that if miners can work in an area, then weather and lighting conditions are sufficient to permit working place examinations to be conducted.

    Some commenters stated that multi-shift operations will be at a disadvantage since all work would need to be halted to accommodate an examination before work begins, even if a company had a sufficient number of competent persons available to conduct the examination before the area would be deemed safe to proceed. A commenter stated that for some site-specific work conditions, personnel would be unable to do inspections between shift changes. Other commenters noted that conducting an examination before work begins would be difficult for operations with overlapping or maintenance shifts and questioned when an examination would be required. Other commenters noted that conducting an examination within a specified time period, i.e., within 2 hours before the shift starts, is not practical for mines scheduled to operate on a 24-hour, 365-day basis with multiple crews working over multiple shifts. A few commenters suggested that MSHA consider allowing the previous shift to conduct examinations for the next shift.

    The final rule requires that a competent person conduct an examination before work begins so that conditions that may adversely affect miners' safety and health are identified before they begin work and are potentially exposed. In response to these comments, MSHA's final rule provides operators with flexibility on how to structure workplace examinations as long as they are conducted before miners begin work in that place. As noted previously, the final rule does not require a specific time frame for the examination to be conducted before work begins.

    The purpose of the rule is to ensure that for each shift the examinations occur at a time that is sufficiently close to when miners begin their work. MSHA acknowledges that for mines with consecutive shifts or those that operate on a 24-hour, 365-day basis, it may be appropriate to conduct the examination for the next shift at the end of the previous shift to ensure that the examination is complete before the next shift begins work in those places. However, because conditions at mines can change, operators should examine at a time sufficiently close to the start of the shift, before miners begin work at that working place, to minimize potential exposure to conditions that may adversely affect their safety or health. For this reason, MSHA does not believe that the protective purpose of the examinations would be accomplished if, at single-shift mines for example, the examination for one day's shift were performed at the end of the previous day's shift.

    In response to commenters' concerns, if an examination was made for miners before work began in that place and incoming miners on an overlapping or maintenance shift are to begin work in that place, an additional examination is not needed provided that the incoming shift begins work close to when the examination was conducted and mining conditions would not be expected to have changed adversely.

    The final rule, like the existing standards and the proposed rule, would continue to require that operators examine each working place at least once each shift. Existing §§ 56.2 and 57.2 define “working place” as “any place in or about a mine where work is being performed.” Some commenters expressed concerns that the phrase “working place” was vague or needed clarification. A number of commenters stated that the phrase “working place” needs to be defined beyond what is in existing §§ 56.2 and 57.2. Other commenters stated that further clarification is needed to distinguish between regular working places and the occasional or sudden assignment that requires a miner to enter into a place that is not a regularly active production area or where mining activities are not present. For such areas, commenters asserted that the examination should occur when work begins, even if work begins in this location mid-shift. Some commenters expressed concern that the proposed rule would require mine operators to conduct an examination of the entire mine before the start of each shift. Some of these commenters also stated that it is impractical to expect the entire mine to be inspected prior to the start of the shift because of changing work needs during the course of a shift.

    It is not MSHA's intent for the mine operator to examine the entire mine before work begins, unless work is beginning in the entire mine. As previously noted, “before work begins,” may or may not coincide with the start of any particular shift; it depends on when miners actually will be working in any particular working place. The final rule, like the existing standards and proposed rule, would require examinations in only those areas where work will be performed.

    As MSHA stated in the preamble to the proposed rule, a “working place” applies to all locations at a mine where miners work in the extraction or milling processes (81 FR 36821). MSHA clarifies that consistent with the existing definition of “working place,” this includes roads traveled to and from a work area (81 FR 58422). MSHA further clarifies that a working place would not include roads not directly involved in the mining process, administrative office buildings, parking lots, lunchrooms, toilet facilities, or inactive storage areas. Unless required by other standards, mine operators would be required to examine isolated, abandoned, or idle areas of mines or mills only when miners have to perform work in these areas during the shift (81 FR 58423).

    Final §§ 56.18002(a) and 57.18002(a), like the existing standards and the proposed rule, require that operators examine each working place for conditions that may adversely affect safety or health. Many commenters expressed concerns that the term “adverse” is ambiguous, lacks specificity, and is open to interpretation. A few commenters provided examples of conditions that could adversely affect safety and health such as slips, trips, and falls, or cause a fatal injury. MSHA notes that the final rule, like the existing standards, requires that an operator examine each working place for conditions that “adversely affect safety or health.” MSHA believes that the mining community understands the meaning of “adverse” in these standards because it has been in place since 1979.

    One commenter stated that, even among MSHA inspectors from the same field office, there can be variability in judgments of inspectors whether a stated condition is “adverse.” Another commenter noted that for mine operators to better train their competent persons, MSHA must better define “adversely affect” so that laymen can understand it and apply it consistently; otherwise, mine operators could be subject to ever-changing interpretations when MSHA inspects the mine.

    MSHA regularly trains its inspectors and managers. A central focus of the Agency's enforcement training and retraining is consistency. In addition, MSHA will develop outreach and compliance assistance materials related to the final rule and will include these materials in stakeholder seminars to be held in locations accessible to the mining public. As part of this process, MSHA will identify best practices that can be shared with the mining community.

    Final §§ 56.18002(a) and 57.18002(a), like the existing standards and the proposed rule, require that the working place examination be made by a competent person designated by the mine operator. Under §§ 56.2 and 57.2, a competent person means a person having abilities and experience that fully qualify him to perform the duty to which he is assigned. In Program Policy Letter (PPL) No. P15-IV-01, MSHA emphasizes that the competent person designated by the operator should be able to recognize hazards and adverse conditions that are expected or known to occur in a specific work area or that are predictable to someone familiar with the mining industry.2 In this same PPL, MSHA states that a best practice is for a foreman or other supervisor to conduct the examination, and that an experienced non-supervisory person may also be “competent.” The PPL emphasizes that a competent person designated by the operator under §§ 56.18002(a) and 57.18002(a) must have the experience and training to be able to perform the examination and identify safety and health hazards.

    2 MSHA's PPL guidance on the meaning of “competent person” was informed by the Commission decision in Secretary of Labor (MSHA) v. FMC Wyoming Corporation, 11 FMSHRC 1622 (1989), which held that: “As with many safety and health standards, §§ 57.18002(a) and 57.2 are drafted in general terms in order to be broadly adaptable to the varying circumstances of a mine. Kerr-McGee Corp., 3 FMSHRC 2496, 97 (November 1981). We conclude that the term `competent person' within the meaning of §§ 57.18002(a) and 57.2 must contemplate a person capable of recognizing hazards that are known by the operator to be present in a work area or the presence of which is predictable in the view of a reasonably prudent person familiar with the mining industry.”

    In the proposed rule, MSHA requested comment on whether the Agency should require that the competent person conducting a working place examination have a minimum level of experience or particular training or knowledge to identify workplace hazards. Many commenters expressed concern over the possibility that MSHA might restrict the “competent person” to supervisors or foremen. Some commenters suggested that MSHA develop training and templates for workplace examinations for various commodities that would highlight hazards and typical work tasks in different mining environments. As previously stated, MSHA will develop outreach and compliance assistance materials to be made available at stakeholder seminars.

    Other commenters suggested that there needs to be a minimum level of experience, ability, or knowledge to be a competent person. These commenters stated that such miners need specific task training in recognizing hazards. One commenter suggested at least 8 hours of retraining each year on identifying workplace hazards, while another suggested 24 to 40 hours of training. A few commenters were concerned that MSHA might require formal training for surface miners, as is required for underground miners in MSHA's system for certification of competency in underground coal mining. Other commenters suggested that mine operators, and not MSHA, should determine the training necessary for the competent person at their locations.

    This final rule does not change the definition of “competent person” under existing §§ 56.2 and 57.2. MSHA believes that existing experience and training requirements allow for needed flexibility while still requiring the level of competency necessary to conduct adequate examinations. In the final rule, like the existing standards and the proposed rule, the competent person is designated by the mine operator.

    Final rule §§ 56.18002(a)(1) and 57.18002(a)(1) are similar to the proposed rule. Like the proposal, they contain a provision requiring mine operators to notify miners in any affected areas of any conditions found that may adversely affect their safety or health. Miners need to know about adverse conditions in their working place so that they can take protective measures or avoid the adverse conditions altogether. Several commenters expressed concern that there is no need to notify miners of conditions found, if such conditions, such as a hose across a walkway, were corrected immediately. Many commenters added that only conditions that cannot or have not been corrected require miner notification; if the hazard has been corrected, there is no benefit for requiring miner notification. The Agency recognizes that if adverse conditions are corrected before miners begin work, notification is not required because there are no “affected areas.”

    MSHA received other comments addressing the notification provision. Many commenters stated that they already notify miners of hazards through tagging, signage, and posting. One commenter asked that MSHA suggest methods of notification to all miners for typical conditions found on a workplace examination. The commenter then requested clarification on who would receive the notification—that is, whether operators would be required to notify incoming shift workers not yet in the area or not yet at work. The same commenter also was concerned about the logistics for notifying miners when many examinations are being conducted at the same time. Another commenter stated that prompt notification to employees if they are not in an affected area could take considerable time and resources resulting in operational downtime and lost revenue. The commenter added that, as a logistical matter, this process will be nearly impossible to manage on a mine site with thousands of employees and contractors.

    Another commenter wrote that the term “promptly notify” is vague. This same commenter was also concerned that the proposed rule was unclear about who would need to be notified. The commenter stated that notifying miners who are not affected by the hazard carries no safety benefit and distracts them, thereby risking work slowdowns. This commenter expressed concerns about diverting a mine's resources to notify miners needlessly just to avoid MSHA citations for failing to communicate such hazards to all miners.

    In its August 25, 2016, comment extension document in the Federal Register (81 FR 58422), MSHA clarified that to “promptly notify miners” means any notification to miners that alerts them to adverse conditions in their working place so that they can take necessary precautions to avoid the adverse condition. MSHA added that this notification could take any form that effectively notifies miners of an adverse condition: Verbal notification, prominent warning signage, other written notification, etc. MSHA believes that, in most cases, verbal notification or descriptive warning signage would be needed to ensure that all affected miners received actual notification of any adverse condition. MSHA also clarified that a “prompt” notification is one that occurs before miners are potentially exposed to the condition; e.g., before miners begin work in the affected areas, or as soon as possible after work begins if the condition is discovered while they are working in an area. For example, this notification could occur when miners are given work assignments (81 FR 58422). Consistent with the comment extension document, the final rule requires notification only of those miners “in any affected areas.” Therefore, not all miners need to be notified, only those miners that would be affected by the adverse condition.

    Final rule §§ 56.18002(a)(1) and 57.18002(a)(1), like the proposed rule, incorporate requirements from existing §§ 56.18002(a) and 57.18002(a) that the mine operator promptly initiate action to correct conditions that may adversely affect miners' safety or health that are found during the examination. A commenter suggested that the proposed requirement would encourage narrower examinations to avoid the need to engage in remedial efforts in non-working places, which could lead to more hazardous conditions if a miner wanders into these unexamined areas. A few commenters stated that the existing rule has long required mine operators to identify and “promptly initiate action to correct” any “conditions which may adversely affect safety or health.” The final rule is not changed from the existing standards.

    Final rule §§ 56.18002(a)(2) and 57.18002(a)(2), like the proposed provisions, are redesignated from and substantively the same as existing §§ 56.18002(c) and 57.18002(c). These provisions require that if the competent person finds conditions that may present an imminent danger, these conditions must be brought to the immediate attention of the operator who must withdraw all persons from the area affected (except persons referred to in section 104(c) of the Mine Act) until the danger is abated. In response to comments, MSHA clarified that the proposed rule would not change the existing standards regarding conditions that present imminent danger (81 FR 58422). “Imminent danger” is defined in section 3(j) of the Mine Act as “the existence of any condition or practice which could reasonably be expected to cause death or serious physical harm before such condition or practice can be abated.” Although MSHA received comments on this aspect of the proposal, the final rule is not changed from the existing standards and is consistent with the statute.

    B. Sections 56.18002(b) and 57.18002(b)—Requirements for Records of Working Place Examinations

    Final rule §§ 56.18002(b) and 57.18002(b) require that a record of each examination be made before the end of the shift for which the examination was conducted. The requirement that the operator make a record is not a new provision; existing §§ 56.18002(b) and 57.18002(b) require a record that the examination was conducted. The final rule, like the proposal, requires the record to include: (1) The name of the person conducting the examination; (2) the date of the examination; (3) the location of all areas examined, and (4) a description of each condition found that may adversely affect the safety or health of miners. The final rule does not include the proposed requirements that the record contain: (1) The signature of the competent person conducting the working place examination and (2) the description of the corrective actions taken.

    The Agency received a number of comments on proposed provisions of paragraph (b) asking if MSHA would require the person conducting the working place examination to wait until the end of the shift to make the record. MSHA clarified that the proposal would allow the competent person conducting the examination to make the record at any time before the end of the shift (81 FR 58422).

    As previously noted, final rule §§ 56.18002(b) and 57.18002(b), like the proposed rule, add requirements for the contents of the examination record. Final paragraph (b), unlike the proposed rule, does not require that the competent person conducting the working place examination sign the record; instead, the record must include only the name of the competent person. Many commenters stated that the proposed requirement to sign the examination record would increase the potential for liability under Section 110(c) of the Mine Act for miners who conduct workplace examinations. Some commenters were concerned that the designated competent person would be liable under 110(c) for individual civil penalties. Other commenters stated that the signature requirement is unproductive, does not improve safety, and that competent persons are taking the risk that they will be criminally prosecuted for knowing and willful violations. Commenters stated that it is difficult to get individuals to take on the responsibility of becoming a competent person. Some commenters were concerned that the signature requirement would discourage miners from conducting working place examinations and would have a negative impact on the quality of the examination.

    MSHA believes that the single act of signing one's name adds no more and no less to the substantive duties and qualifications of the person who conducts the examination. For that reason, MSHA does not agree with commenters who believe that a signature would increase exposure to personal liability under Section 110(c). However, as will be discussed, MSHA also believes that it is the identity of the examiner, rather than the signature, that is important to record. For this reason, the final rule does not require the signature of the competent person conducting the working place examination.

    Some commenters were not in favor of including the name of the competent person in the record. MSHA maintains that, like a signature, printing one's initials or name adds no more and no less to the substantive duties and qualifications of the person who conducts the examination. Historically, MSHA has taken the position that a meaningful record should at least contain the name of the competent person who conducted the examination. In addition, MSHA believes that the mine operator would need to know who conducted the working place examination. It is important to know the identity of the examiner for a number of reasons, such as clarifying the condition noted or following up with the examiner regarding areas examined or conditions noted.

    Final rule §§ 56.18002(a) and 57.18002(b), like the proposal, require that the record be dated. A few commenters supported including the date in the record; some stated that they already include the date in their examination record. MSHA has determined that dating the record is a key element for record management and for identifying trends that would be useful in promoting a mine's safety and health efforts.

    Final rule §§ 56.18002(a) and 57.18002(b), like the proposal, also require that the record contain the location of all areas examined and a description of each condition found that may adversely affect the safety or health of miners.

    Many commenters opposed including in the record the locations of all areas examined and a description of each condition that may adversely affect the safety and health of miners, citing burden and cost concerns. A few commenters objected to recording every work location examined, indicating that this provision was costly and burdensome and would not improve miners' safety. These commenters also noted that the proposed requirement to include the locations of all areas examined would increase the number of records significantly. Several of these commenters recommended that MSHA allow operators to use a form or checklist for the examination record, noting that this would reduce burden and assist in operators' compliance with this requirement. Some commenters questioned how specific the description of adverse conditions should be because requiring more detail would limit the use of forms or checklists. Several other commenters supported the provision to include the locations of all areas examined and noted that they are currently including this information as part of their examination records. MSHA has determined that requiring that the record include locations of areas examined ensures that the mine operator is aware that all locations in a working place have been examined.

    The final rule allows mine operators the flexibility to record the results of an examination using a checklist or any other format, as long as the record includes the information listed in paragraph (b). Regarding the specificity of a description of an adverse condition, MSHA clarifies that the description should provide sufficient information which allows mine operators to notify miners of the condition and to take prompt corrective action.

    Several commenters supported the proposed provision to record a description of each condition found that may adversely affect the safety or health of miners. Another commenter noted that many companies follow the “best practices” MSHA advocated in its policy documents in terms of memorializing what hazards are identified. Other commenters objected to including a description of all adverse conditions found in the examination record. Specifically, one commenter stated that requiring a description of every adverse condition is a burdensome requirement and does not provide any benefit to miners if it was immediately corrected by the competent person who performed the examination. This commenter stated that only the adverse conditions that cannot or have not been corrected should be required to be documented as these could affect miners. The commenter noted that this would provide an incentive to immediately correct adverse conditions. Another commenter stated that there are certain adverse conditions that occur regularly during normal mining operations. The commenter provided an example of entering an area in which a round of explosives has recently been blasted creating adverse conditions such as unsupported ground at the face, loose rock that presents tripping hazards, and dusty conditions caused by the blast. The commenter believed that requiring the competent person conducting the examination to record these regularly occurring adverse conditions and the corrective actions, would add no value since these conditions will be expected. The commenter further stated that this would unnecessarily add to the duties of the competent person conducting the examination.

    MSHA believes that, by making a record of adverse conditions, mine operators and miners will become more proactive in their approach to correcting the conditions and avoiding recurrence, thereby improving protections for miners. The Agency believes that a record that notes the adverse conditions prior to miners working in an area expedites the correction of these conditions, notwithstanding the regularity in which the adverse conditions occur. Also, MSHA believes that recording all adverse conditions, even those that are corrected immediately, will be useful as a means of identifying trends. This information should help inform mine management regarding areas or subjects that may benefit from increased safety emphasis.

    Some commenters questioned if correcting the condition takes a significant amount of time, would the adverse condition have to be recorded each shift until it is corrected. MSHA clarifies that if not immediately corrected, the continuing adverse condition does not need to be recorded each shift. The final rule requires that, once the condition is corrected, the record include, or be supplemented to include, the date of corrective action.

    Regardless of how long an adverse condition has existed, mine operators must ensure that all affected miners are promptly notified of all adverse conditions on each shift as required in final paragraph (a)(1), so that miners can take the necessary precautions to avoid an accident or injury.

    Another commenter stated that requiring that examinations include descriptions of unsafe conditions would require separate records for each and every examination. The commenter added that for medium and large-sized operations this requirement would necessitate the generation, management, and storage of hundreds of thousands of individual examination records each year. The commenter stated that this may not be feasible for many operators, or would require the operators to add additional personnel and incur the associated costs without any proven benefit.

    MSHA believes that a key element in any safety and health program includes the identification of adverse conditions. MSHA further believes that this information is essential to inform operators and miners of these conditions, so that they can be found and fixed before miners are exposed to them. Under the existing standards, a competent person is not required to record adverse conditions. MSHA's experience is that if adverse conditions are not recorded, these conditions may exist for more than one shift, causing or contributing to an accident, injury, or fatality. The final rule allows mine operators the flexibility to record the results of an examination using electronic or hard copy checklists or any other format, as long as the record includes the information listed in paragraph (b). In addition, MSHA has reduced the recordkeeping requirements in the final rule to address commenters' concerns regarding costs and burden.

    Many commenters were concerned that the Agency will use the examination record to write citations based solely on the adverse conditions identified in the record. This is not MSHA's intent, nor do we plan to train our inspectors to do this. MSHA reiterates that the Agency's intent is to ensure that conditions that adversely affect the safety or health of miners are found and fixed before miners begin work.

    MSHA proposed in §§ 56.18002(b)(2) and 57.18002(b)(2) that the record include a description of the corrective action taken and the date it was taken, the name of the person who made the record of the corrective action, and the date the record of corrective action was made. The final rule in paragraph (c), similar to the proposed rule, requires when a condition that may adversely affect safety or health is corrected, the examination record must include the date of the corrective action. The final rule, unlike the proposed rule, does not require that the name of the person who made the record of the corrective action be included in the record.

    Many commenters opposed the proposed requirement that the record contain a description of every corrective action, stating that this was burdensome, especially for small operations. One commenter noted that for conditions not immediately corrected, the proposal would result in leaving open indefinitely the mandatory records, raising the potential for records to be misplaced. Other commenters noted that including a description of corrective actions in the examination record is duplicative since operators have systems in place that track work orders and repairs that document corrective actions taken. Other commenters stated that this provision would not enhance miners' safety. In response to these comments, the final rule does not require that the record include a description of corrective action. MSHA believes that a single requirement to record the date the corrective action is completed will result in similar safety benefits for less time and cost, as it will still encourage prompt corrective action.

    Many commenters did not support the provisions in proposed paragraph (b)(2) to record the name of the person who made the record of the corrective action, the date the corrective action was taken, and the date the record of corrective action was made, stating that they were unnecessary and confusing. These commenters added that these proposed requirements may overly complicate recordkeeping and add little protective value. MSHA notes that while the final rule does not require the name of the person who made the record of corrective action, it does require that the record include the date of the corrective action. MSHA expects that most corrective actions will be completed before the end of the shift on which the adverse condition was found and that, therefore, the date of the corrective action will be the same as the date of the examination. However, regardless of when the corrective action is completed, the examination record noting the adverse condition must include or must be updated with the date of the corrective action. MSHA believes that including the date of corrective action alerts the mine operator, the authorized representative of the Secretary, and miners' representatives whether adverse conditions have been corrected.

    A few commenters stated that the person taking the corrective action is not necessarily the same person who dates the record of corrective action. Recognizing these commenters' concerns, MSHA clarifies that under the final rule, unlike the preamble discussion to the proposed rule, the person who takes the corrective action does not need to be the person who records the date of corrective action under final paragraph (c).

    MSHA received comments requesting that the Agency allow alternative means of documenting corrective action other than the examination record, such as closed-out work orders or invoices. MSHA believes, however, that all information related to adverse conditions should be in one record, including the date of corrective action, to ensure a complete record is available for inspection and the Agency will not accept alternate documentation for corrective action taken.

    Final rule §§ 56.18002(d) and 57.18002(d), like the existing standards and proposed §§ 56.18002(b)(3) and 57.18002(b)(3), require that the operator maintain the examination records for one year and make them available to the Secretary or his authorized representative. The final rule, like the proposed rule, adds requirements that: (1) The record also be made available for inspection by miners' representatives and (2) that a copy be provided to the Secretary or his authorized representative and miners' representatives upon request.

    Some commenters suggested that the requirement for a one-year record retention period be changed to six months since MSHA inspections are on a six-month inspection schedule. Historically, mine operators have been required to retain examination records for one year. The Mine Act requires that surface mines be inspected at least twice a year but does not mandate that the inspections be six months apart; inspection schedules vary. Also, retaining examination records for one year allows operators and miners to identify trends that may not be apparent in a shorter period of time. The final rule retains the existing requirement.

    A few commenters suggested that examination records be made and kept electronically since they currently complete these records electronically. MSHA agrees; however, when records are collected electronically, such records must be secured in a computer system that is not susceptible to alteration. These electronic records must be made available for inspection by authorized representatives of the Secretary and representatives of miners, and an electronic or paper copy must be provided upon request.

    Several commenters opposed the proposed requirement to make records available upon request to representatives of miners. They stated that obligating an operator to make its examination records available to the miners' representatives and to provide copies upon request will not improve or benefit safety. One commenter stated that making records available for review by MSHA to confirm compliance is one thing, but forcing operators to make books and records available to its rank-and-file personnel shows lack of respect by MSHA for the integrity of mine management. Several commenters did not oppose making the records available to miners and their representatives.

    MSHA notes that the final rule, like the proposal, includes the requirement that records be made available for inspection by miners' representatives. This is consistent with the Mine Act which requires miners be provided with information concerning safety and health hazards. Under the Mine Act, mine operators, with the assistance of miners, have the primary responsibility to prevent the existence of adverse conditions, which is why MSHA concluded that the final rule should require operators to make examination records available to miners' representatives as well as to provide copies of such records to them upon request. Also, under other MSHA safety and health standards, operators provide records to miners' representatives.

    A few commenters suggested that mine operators have a “workplace inspection program”, which could be documented or submitted to MSHA for approval, noting that MSHA could use this document to check for compliance. Other commenters suggested additional miner training could be an alternative to modifying the existing standards. MSHA did not propose or solicit comments regarding a workplace inspection program or additional miner training: either would have necessitated a discussion of various options in the proposed rule. For this reason, both of these issues are beyond the scope of this rulemaking.

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

    Executive Orders (E.O.) 13563 and 12866 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility.

    Under E.O. 12866, a significant regulatory action is one that meets any of a number of specified conditions, including the following: Having an annual effect on the economy of $100 million or more, creating a serious inconsistency or interfering with an action of another agency, materially altering the budgetary impact of entitlements or the rights of entitlement recipients, or raising novel legal or policy issues. MSHA has determined that the final rule is an “other significant” regulatory action because it raises novel legal and policy issues. However, MSHA has determined that this final rule will not have an annual effect of $100 million or more on the economy and, therefore, will not be an economically significant regulatory action pursuant to section 3(f) of E.O. 12866.

    A. Population at Risk

    The final rule will apply to all MNM mines in the United States. In 2015, there were approximately 11,660 MNM mines employing 144,408 miners, excluding office workers, and 74,465 contractors working at MNM mines.

    Table 1 presents the number of MNM mines and employment by mine size.

    Table 1—MNM Mines and Employment in 2015 Mine size Number of mines Total employment at mines, excluding office workers 1-19 Employees 10,451 52,310 20-500 Employees 1,187 74,545 501+ Employees 22 17,553 Contractors 74,465 Total 11,660 218,873 Source: MSHA MSIS Data (reported on MSHA Form 7000-2) September 21, 2016.

    The U.S. Department of the Interior (DOI) estimated revenues of the U.S. mining industry's MNM output in 2015 to be $78.3 billion.3 Table 2 presents the hours worked and revenues for MNM mines by mine size.

    3 Production revenue estimates are from DOI, U.S. Geological Survey (USGS), Mineral Commodity Summaries 2016, February 2016, page 8.

    Table 2—MNM Total Hours and Revenues in 2015 Mine size Total hours
  • reported for year
  • Revenue
  • (in millions of
  • dollars)
  • 1-19 Employees 88,661,855 $22,149 20-500 Employees 159,361,570 43,652 501+ Employees 37,470,328 12,499 Total 285,493,753 78,300 Source: MSHA MSIS Data (total hours worked at MNM mines reported on MSHA Form 7000-2) and estimated DOI reported mine revenues for 2015 by mine size.
    B. Benefits

    The purpose of this final rule is to ensure that MNM mine operators identify and correct conditions that may adversely affect miners' safety or health. Effective workplace examinations are a fundamental accident prevention tool; they allow operators to find and fix adverse conditions and violations of safety and health standards before they cause injury or death to miners.

    Under MSHA's existing standards, mine operators can perform the examinations anytime during the shift. If the examination is performed after miners begin work, miners may be exposed to conditions that may adversely affect their safety and health. In addition, the existing standard does not specify the contents of the examination record.

    Over the years, MSHA has issued Program Policy Letters (PPL) regarding working place examinations. The PPLs are MSHA's guidance and best practices regarding compliance with the existing standards. In the PPLs, MSHA provided guidance on what the examination record should include, such as: (1) The date of the examination; (2) name of the person conducting the examination; (3) the working places examined; and (4) a description of the conditions found that adversely affect safety or health. In the Agency's experience, despite MSHA guidance and best practices, under the existing standard working place examinations are not always done at a point during the shift when the results of the examination would provide the necessary protections as intended by the Mine Act and the existing standard.

    MSHA's final rule amends the existing standards to require that the examination of each working place be conducted at least once each shift before miners begin work in that place, and that mine operators notify miners in affected areas of any conditions found that may adversely affect their safety or health. The final rule also requires that the examination record contain the name of the person conducting the examination, the date of the examination, the location of all areas examined, a description of each condition found that may adversely affect the safety or health of miners, and the date the corrective action was made.

    A number of commenters observed that MSHA was unable to quantify the benefits of the proposed rule. Another commenter stated that MSHA should show that the Agency's proposed revision of the existing rule will not negatively impact the safety and health of miners as required by the Mine Act. Under the Mine Act, MSHA is not required to use monetized benefits or estimated net benefits as the basis for the Agency's decision on standards designed to protect the health and safety of miners. However, in the proposed rule, MSHA stated that, while the Agency was unable to quantify the benefits, it anticipated there would be unquantified benefits from the proposed requirements.

    MSHA recognizes that under the existing standards, many mine operators have safe workplace operations and safety programs that include many of the provisions in this final rule. However, as noted above, the Agency's experience is that there is a significant degree of variability in how safety programs are operationalized. MSHA has concluded that the final rule will reduce the variability in how operators conduct examinations of working places and thereby improve miners' safety and health. MSHA believes that several features of this rule will contribute to this reduction in variability in workplace examinations and reporting. These features are conducting the workplace examination before work begins; and a record that will include locations examined, a description of adverse conditions found, and the date they were corrected. Under the existing standard, MSHA does not specify the timing of the examination or the contents of the record. In addition, the final rule adds a new requirement that mine operators notify miners of adverse conditions in their working places that will ensure that miners are aware of such conditions and avoid them until they are corrected. MSHA anticipates that there will be benefits from these provisions that will result in more effective and consistent workplace examinations and ensure that adverse conditions will be timely identified, communicated to miners, and corrected.

    However, MSHA is unable to separate the benefits of the new requirements under the final rule from those benefits attributable to conducting a workplace examination under the existing standards. The Agency has concluded that the combined effect of all the provisions (existing standards that have been in place since 1979 and the final rule) will improve miners' safety and health. While unable to quantify the benefits, the Agency has concluded that the final rule will have benefits.

    MSHA also anticipates that there will be additional unquantifiable financial benefits, such as reduced insurance premiums, from effective working place examinations that will help mine operators, miners, and their representatives to become more aware of potential dangers, and be more proactive in correcting adverse conditions and violations of health and safety standards before these conditions cause an accident.

    C. Compliance Costs

    MSHA estimated the costs for MNM mine operators to comply with the final rule. Table 3 provides a summary of the annual costs by mine size.

    Table 3—Summary of Annual Costs to MNM Mine Operators * [$ millions] Requirement Mine size 1-19 20-500 501+ Totals 56/57.18002 (a) Conduct Exam Before Work Begins $4.96 $20.22 $1.69 $26.88 56/57.18002 (b)& (c) Additional Time to Make Record 5.51 1.73 0.04 7.29 56/57.18002 (d) Provide Miners' Representative a Copy of Record 0.13 0.21 0.01 0.35 * Totals (may not sum due to rounding) 10.61 22.16 1.75 34.51 Examination of Working Places—Final §§ 56.18002(a) and 57.18002(a)

    Final §§ 56.18002(a) and 57.18002(a) require that a competent person designated by the operator must examine each working place at least once each shift, before miners begin work in that place, for conditions that may adversely affect safety or health.

    In the proposed rule, MSHA believed that the cost associated with examining areas before miners begin work in that area would be de minimis. However, several commenters stated that requiring the working place examination to occur before miners can begin work would impose additional costs on mine operators. Commenters also expressed concern that there could be considerable downtime and lost productivity as miners waited for a working place examination to be completed before starting work. Some commenters stated that it could take between two to six hours for larger mines to conduct the examination, which they stated might require paying overtime to the competent person to arrive well before the shift begins.

    Based on these comments, MSHA concludes that MNM mine operators will use a variety of scheduling methods to conduct an examination of a working place before miners begin work. In developing this cost estimate, MSHA considered the following variables: (1) Percent of mine operators currently compliant with this requirement; (2) number of shifts by mine size; (3) average time to conduct a workplace examination by mine size; (4) hourly wage rate; and (5) number of days a mine operates, on average, by mine size. Operators may use overtime, use different people to backfill for the time shifted to the examination, and perhaps lengthen the examination time to comply with the final rule. Based on analysis of comments received about overtime, MSHA assigned an overtime rate to the new time adjustments to appropriately estimate the change to costs.

    Small mine operators, with 1-19 employees, represent 90 percent of all MNM mines. Of these small mines, 62 percent have 1-5 employees. It is MSHA's experience that small mine operators with 5 or fewer employees are currently in compliance with the final rule or will be able to adjust work schedules to comply without incurring additional costs and burden. MSHA also determined from the public comments that a greater percentage of larger mines will incur compliance costs due to large physical spaces, complex work schedules, and larger numbers of miners assigned to such schedules. In response to comments, the Agency estimated that 15 percent of mines with 1-19 employees, 65 percent of mines with 20-500 employees, and 85 percent of mines with 501+ employees will incur some additional cost as a result of requiring operators to conduct working place examinations before miners begin work in those places.

    For the proposed rule, MSHA assumed that mines with 1-19 employees operated 1 shift per day, while those with 20 or more employees operated 2 shifts per day. Five commenters submitted concerns about 24/7 operations or overlapping shifts in large mines. MSHA re-examined the availability of internal data and revised the number of shifts. For the final rule, MSHA estimates that, on average: A mine with 1-19 employees operates 1.1 shifts per day; a mine with 20-500 employees operates 1.8 shifts per day; and a mine with 501+ employees operates 2.2 shifts per day. As with all averages, the data include a range of values.

    In response to comments and based on the Agency's experience, MSHA estimates that, on average, the time to conduct workplace examinations before work begins is: 20 minutes in mines with 1-19 employees; 1 hour in mines with 20-500 employees; and 2.5 hours in mines with 501+ employees.

    In the proposed rule, MSHA assumed that all MNM mines operate 300 days per year. Commenters provided various estimates on the number of days that MNM mines operate. In response to comments, MSHA reevaluated the Agency's estimate. MSHA reviewed employment, average shifts per week, and average hours per employee to estimate average days per year worked in MNM mines for 2015.4 MSHA's estimate shows that, on average, a mine with 1-19 employees operates 169 days per year, a mine with 20-500 employees operates 285 days per year, and a mine with more than 500 employees operates 322 days per year.

    4 MSHA MSIS data, 2015.

    In the proposed rule, MSHA used a 2014 hourly wage rate of $31.14 (including benefits). One commenter stated that $51.25 was the 2016 average miner hourly wage rate for large mines that the commenter represents. Another commenter stated that for the mine operators it represents the pay, on average, is $35 to $55 per hour, excluding benefits. However, this commenter did not specify whether this hourly wage rate range was for a supervisor or a miner. Another commenter provided calculations that used MSHA's proposed wage rate of $31.14 per hour.

    The hourly wage rate used in MSHA's analysis assumes an average rate for all MNM mines. For the final rule, like the proposal, MSHA used wage data from BLS's Occupational Employment Survey (OES).5 6 For the final rule, the hourly wage rate, updated for 2015, is $34.06 (including benefits).

    5 OES data are available at http://www.bls.gov/oes/tables.htm or at http://www.bls.gov/oes/oes_ques.htm. The employment-weighted mean wage is for Extraction Workers (Standard Occupational Classification code, SOC, 475000) for Metal Ore Mining (NAICS 212200) and Nonmetallic Mineral Mining and Quarrying (NAICS 212300). The OES wages represent the average for the entire industry and are used nationally for many federal estimates and programs. As with any average, there are always examples of higher and lower values but the national average is the appropriate value for a rule regulating an entire industry.

    6 The wage rate without benefits was increased for a benefit-scalar of 1.48. The benefit-scalar comes from BLS Employer Costs for Employee Compensation access by menu http://www.bls.gov/data/ or directly with http://download.bls.gov/pub/time.series/cm/cm.data.0.Current. The data series CMU2030000405000P, Private Industry Total benefits for Construction, extraction, farming, fishing, and forestry occupations, is divided by 100 to convert to a decimal value. MSHA used the latest 4-quarter moving average 2015 Qtr. 3-2016 Qtr. 2 to determine that 32.65 percent of total loaded wages are benefits. The scaling factor is a detailed calculation, but may be approximated with the formula and values 1 + (benefit percentage/(1-benefit percentage)) = 1 + (0.3265/(1 − 0.3265)) = 1.48.

    As noted above, several commenters stated that compliance with §§ 56.18002(a) and 57.18002(a) would require a mine operator to pay overtime for a competent person to arrive before the shift begins to conduct the working place examination. In response to comments, MSHA estimated the cost for overtime as time and a half ($51.09/hr = $34.06 × 1.5). MSHA estimates that it will cost approximately $26.9 million per year for mine operators to comply with the final provision that requires mine operators to examine each working place at least once each shift before miners begin work. This annual cost consists of:

    • $5 million = 10,451 mines with1-19 employees × 15% × 20 minutes × 1 hr/60 min × $51.09 wage × 1.1 shifts per day × 1 exam × 169 workdays per year;

    • $20.2 million = 1,187 mines with 20-500 employees × 65% × 1 hour × $51.09 wage × 1.8 shifts per day × 1 exam × 285 workdays per year; and

    • $1.7 million = 22 mines with 501+ employees × 85% × 2.5 hours × $51.09 wage × 2.2 shifts per day × 1 exam × 322 workdays per year;

    Records of Working Place Examinations—Final §§ 56.18002(b) and (c) and 57.18002(b) and (c)

    The requirement that the operator make a record is not a new provision; existing §§ 56.18002(b) and 57.18002(b) require that a record of the examination be made. The final rule revises §§ 56.18002(b) and 57.18002(b) to require that the record of each examination be made before the end of the shift for which the examination was conducted. The record shall contain: (1) The name of the person conducting the examination; (2) the date of the examination; (3) the location of the areas examined; and (4) a description of each condition found that may adversely affect the safety or health of miners. Under final §§ 56.18002(c) and 57.18002(c), the record also must include the date of corrective action.

    Under the proposed rule, the mine operator would have been required to record a description of the adverse conditions found during the examinations and a description of the corrective actions taken. MSHA received numerous comments and heard testimony at the public hearings opposing these requirements. Commenters were concerned that recording every condition and every corrective action would be an excessive burden to mine operators, especially small operators. Several commenters noted that MSHA's estimate of 5 minutes to complete the record was an underestimate. One commenter stated that MSHA's proposed estimate was not enough time to document every hazard found in every active part of the mine and all corrective actions. In response to comments, the final rule does not require the record to include a description of the corrective action taken. However, the final rule retains the requirement that the record include the date when corrective action was made.

    MSHA proposed that the competent person conducting the working place examination would be required to sign and date the record before the end of the shift for which the examination was made. MSHA received numerous comments and testimony opposing this requirement. In response to the concerns from commenters, the final rule does not require that the competent person who conducted the examination sign the record. However, the final rule requires that the examination record contain the name of the person conducting the examination.

    The proposed record requirements were interpreted by commenters as requiring substantially more time than the 5 minutes the Agency estimated. For purposes of this final rule, MSHA accepts that the proposed record requirements may have required more time than MSHA's estimate. However, the Agency now has clarified and narrowed the record requirements in the final rule. MSHA has concluded the original time estimates are appropriate given these changes. The Agency estimates that it will take all MNM mine operators an additional 5 minutes to record the information as required. MSHA estimates that a miner, earning $34.06 per hour, will take 5 additional minutes to include into the existing record the additional information required by final §§ 56.18002(b) and (c) and 57.18002(b) and (c). MSHA estimates that the annual cost for this provision will be approximately 7.3 million. This annual cost consists of:

    • $5.5 million = 10,451 mines with 1-19 employees × 1.1 shift per day × 1 exam record × 169 workdays per year × 5 additional minutes × 1 hr/60 min × $34.06 per hour;

    • $1.7 million = 1,187 mines with 20-500 employees × 1.8 shifts per day × 1 exam record × 285 workdays per year × 5 additional minutes × $34.06 per hour; and

    • $44,235 = 22 mines with 501+ employees × 2.2 shifts per day × 1 exam record × 322 workdays per year × 5 additional minutes × $34.06 per hour.

    Making Records Available to Miners' Representatives—§§ 56.18002(d) and 57.18002(d)

    Final §§ 56.18002(d) and 57.18002(d) require that the operator maintain the examination records for at least one year, make the records available for inspection by authorized representatives of the Secretary and the representatives of the miners, and provide these representatives a copy on request. Several commenters have stated that this requirement would place an additional burden on mine operators without MSHA showing any benefit. MSHA did not estimate a cost for this provision in the proposed rule. The existing information collection already allows time for record keeping and making copies for representatives of the Secretary. MSHA believes that on average the time already allowed for recordkeeping and providing copies to the Secretary's representative will increase only slightly with regard to providing information to the mining representative. MSHA has increased the time for the copying from 20 seconds to an average of 1 minute. For the final rule, MSHA estimates that the number of times a copy of the examination record will be requested is: 10 percent in mines with 1-19 employees; 50 percent in mines with 20-500 employees; and 100 percent in mines with 501+ employees. Also, MSHA estimates that it will take a clerical employee, earning $22.43 per hour,7 8 1 minute to make a copy of the examination record and provide it to the representative of the miners, and that copying costs will be $0.30 per examination (2 pgs. × $0.15 per page). Thus, MSHA estimates that the compliance costs for mine operators to make copies of examination records for the representative of the miners will be $346,578 annually. This annual cost consists of:

    7 OES data are available at http://www.bls.gov/oes/tables.htm or at http://www.bls.gov/oes/oes_ques.htm. The employment-weighted mean wage is for Office Clerks, General (Standard Occupational Classification code, SOC, 439061) for Metal Ore Mining (NAICS 212200) and Nonmetallic Mineral Mining and Quarrying (NAICS 212300). The OES wages represent the average for the entire industry and are used nationally for many federal estimates and programs. As with any average, there are always higher and lower values but the national average is the appropriate value for a rule regulating an entire industry.

    8 The wage rate without benefits was increased for a benefit-scalar of 1.48. The benefit-scalar comes from BLS Employer Costs for Employee Compensation access by menu http://www.bls.gov/data/ or directly with http://download.bls.gov/pub/time.series/cm/cm.data.0.Current. The data series CMU2030000405000P, Private Industry Total benefits for Construction, extraction, farming, fishing, and forestry occupations, is divided by 100 to convert to a decimal value. MSHA used the latest 4-quarter moving average 2015 Qtr. 3-2016 Qtr. 2 to determine that 32.65 percent of total loaded wages are benefits. The scaling factor is a detailed calculation, but may be approximated with the formula and values 1 + (benefit percentage/(1-benefit percentage)) = 1 + (0.3265/(1−0.3265)) = 1.48.

    • $130,916 = 10,451 mines with 1-19 employees × 10 percent × 1.1 shifts per day × 169 workdays per year × ((1 minute × $22.43 per hour) + $0.30 copy costs);

    • $205,160 = 1,187 mines with 20-500 employees × 50 percent × 1.8 shifts per day × 285 workdays per year × ((1 minute × $22.43 per hour) + $0.30 copy costs); and

    • $10,502 = 22 mines with 501+ employees × 100 percent × 2.2 shifts per day × 322 workdays per year × ((1 minute × $22.43 per hour) + $0.30 copy costs).

    Summary of Compliance Costs

    The total annual compliance cost of the final rule is $34.5 million: $10.6 million for mines with 1-19 employees; $22.2 million for mines with 20-500 employees; and $1.7 million for mines with 501+ employees.

    Discounting

    Discounting is a technique used to apply the economic concept that the preference for the value of money decreases over time. In this analysis, MSHA provides cost totals at zero, 3, and 7 percent discount rates. The zero percent discount rate is referred to as the undiscounted rate. MSHA used the Excel Net Present Value (NPV) function to determine the present value of costs and computed an annualized cost from the present value using the Excel PMT function.9 The negative value of the PMT function provides the annualized cost over 10 years at 3 and 7 percent discount rates.

    9 Office of Management and Budget, Office of Information and Regulatory Affairs, Regulatory Impact Analysis: Frequently Asked Questions, February 7, 2011. [http://www.whitehouse.gov/sites/default/files/omb/assets/OMB/circulars/a004/a-4_FAQ.pdf].

    MSHA estimates that the total undiscounted cost of the final rule over a 10-year period will be approximately $345.1 million, $294.4 million at a 3 percent discount rate, and $242.4 million at a 7 percent discount rate. The total undiscounted cost annualized over 10 years will be approximately $34.5 million, $33.5 million at a 3 percent discount rate, and $32.3 million at a 7 percent discount rate.

    IV. Feasibility A. Technological Feasibility

    MSHA concludes that the final rule is technologically feasible because it requires only that the operator conduct the working place exam before work begins in that place and requires additional information to be included in the operators' existing examination records. There are no technology issues raised by the final rule.

    B. Economic Feasibility

    MSHA has traditionally used a revenue screening test—whether the yearly impacts of a regulation are less than one percent of revenues—to establish presumptively that the regulation is economically feasible for the mining community. The final rule is projected to cost $34.5 million per year and the MNM industry has estimated annual revenues of $78.3 billion. The final rule cost is less than one percent of revenues. Therefore, MSHA concludes that the final rule will be economically feasible for the MNM mining industry.

    MSHA intends to conduct a retrospective study beginning January 20, 2022. Using the results of this study, MSHA will determine to what extent the provisions of the final rule ensure that operators find and fix adverse conditions and violations of safety and health standards before they cause injury or death to miners, and reduce the variability in how operators conduct examinations of working places and thereby improve miners' safety and health. Under the Department's Plan for Retrospective Analysis of Existing Rules, MSHA intends to consult with industry, labor, and other stakeholders in conducting this review.

    This retrospective study will be conducted in accordance with the Department of Labor's Plan for Retrospective Analysis of Existing Rules which complies with Executive Order (E.O.) 13563 “Improving Regulation and Regulatory Review” (76 FR 3821).

    V. Regulatory Flexibility Analysis and Small Business Regulatory Enforcement Fairness Act

    Pursuant to the Regulatory Flexibility Act (RFA) of 1980, as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA), MSHA has analyzed the impact of the final rule on small entities. Based on that analysis, MSHA certifies that the final rule will not have a significant economic impact on a substantial number of small entities. The Agency, therefore, is not required to develop an initial regulatory flexibility analysis. The factual basis for this certification is presented below.

    A. Definition of a Small Mine

    Under the RFA, in analyzing the impact of a rule on small entities, MSHA must use the Small Business Administration's (SBA's) definition for a small entity, or after consultation with the SBA Office of Advocacy, establish an alternative definition for the mining industry by publishing that definition in the Federal Register for notice and comment. MSHA has not established an alternative definition and, therefore, must use SBA's definition. On February 26, 2016, SBA's revised size standards became effective. SBA updated the small business thresholds for mining by establishing a number of different levels. MSHA used the new SBA standards for the screening analysis of this final rule.

    The SBA uses North American Industry Classification System (NAICS) codes, generally at the 6-digit NAICS level, to set thresholds for small business sizes for each industry. See the SBA size standard tables and methodology at https://www.sba.gov/contracting/getting-started-contractor/make-sure-you-meet-sba-size-standards/summary-size-standards-industry-sector.

    MSHA has also examined the impact of the final rule on MNM mines with fewer than 20 employees, which MSHA and the mining community have traditionally referred to as “small mines.” These small mines differ from larger mines not only in the number of employees, but also in economies of scale in material produced, in the type and amount of production equipment, and in supply inventory. Therefore, the impact of MSHA's rules and the costs of complying with them will also tend to differ for these small mines. This analysis complies with the requirements of the RFA for an analysis of the impact on “small entities” using both SBA's definition as well as MSHA's traditional mine size definition.

    B. Factual Basis for Certification

    MSHA initially evaluates the impacts on small entities by comparing the estimated compliance costs of a rule for small entities in the sector affected by the rule to the estimated revenues for the affected sector. When estimated compliance costs are less than one percent of the estimated revenues, the Agency believes it is generally appropriate to conclude that there is no significant economic impact on a substantial number of small entities. When estimated compliance costs exceed one percent of revenues, MSHA investigates whether further analysis is required. MSHA evaluated a number of data sources related to the number of firms, employment, and revenue. MSHA concluded that the most useful data was MSHA's 2015 MSIS MNM mine data (datasets are publicly available at http://arlweb.msha.gov/OpenGovernmentData/OGIMSHA.asp). MSHA summed employment using the MSHA data element “Controller” 10 to best align with the SBA concept of firm as either an owner or exercising decision making. Each mine was assigned a size of large or small using the SBA size standard for each NAIC code in the MSHA data. MSHA estimated mine revenue as it has in the past using U.S. Geological reports (USGS, 2016) to obtain national revenue numbers for 2015 that MSHA then allocated to mines on a dollar per hour basis. Using the traditional definition of small, MSHA estimated that final compliance costs for MNM mines with 1 to 19 employees is $10.6 million, which is less than one percent of the $22.1 billion in revenues for these mines in 2015. Table 4 shows the estimated revenues, costs, size standards (Feb. 2016), and the summary level screening test results. The summary level data is consistent with evaluating the impact on a mine-by-mine basis without providing detail on the approximately ten thousand small mines. MSHA identified numerous data records that were either incomplete or numerous mines that are intermittent with very few producing hours during the year. For these reasons, the analysis by NAICS code does not exactly match the total mine count or totals using MSHA's traditional methodology. However, the error is small enough to not affect MSHA's decision to certify that there is no significant economic impact on a substantial number of small entities.

    10 Official definition in data set: Legal Entity acting as a controller of an operator.

    Table 4—Summary of Screening Analysis by NAICS Code NAICS NAICS description Small
  • standard
  • (maximum
  • employees)
  • Number
  • small mines
  • Estimated
  • revenue
  • small mines
  • ($millions)
  • One percent
  • of revenues
  • ($millions)
  • Cost to
  • small mines
  • ($millions)
  • Cost
  • exceeds
  • 1 percent
  • 212210 Iron Ore Mining 750 26 $1,803.7 $18.0 $0.5 No. 212221 Gold Ore Mining 1,500 137 2,357.2 23.6 0.9 No. 212222 Silver Ore Mining 250 9 223.8 2.2 0.1 No. 212231 Lead Ore and Zinc Ore Mining 750 5 439.5 4.4 0.2 No. 212234 Copper Ore and Nickel Ore Mining 1,500 17 1,383.6 13.8 0.3 No. 212291 Uranium-Radium-Vanadium Ore Mining 250 5 109.7 1.1 0.0 No. 212299 All Other Metal Ore Mining 750 28 726.4 7.3 0.3 No. 212311 Dimension Stone Mining and Quarrying 500 793 2,821.7 28.2 1.6 No. 212312 Crushed and Broken Limestone Mining and Quarrying 750 1,415 7,375.5 73.8 4.1 No. 212313 Crushed and Broken Granite Mining and Quarrying 750 152 1,162.8 11.6 0.6 No. 212319 Other Crushed and Broken Stone Mining and Quarrying 500 963 3,069.8 30.7 1.7 No. 212321 Construction Sand and Gravel Mining 500 5,684 9,358.9 93.6 5.1 No. 212322 Industrial Sand Mining 500 271 1,395.2 14.0 0.8 No. 212324 Kaolin and Ball Clay Mining 750 11 293.0 2.9 0.2 No. 212325 Clay and Ceramic and Refractory Minerals Mining 500 243 1,459.7 14.6 0.8 No. 212391 Potash, Soda, and Borate Mineral Mining 750 9 650.4 6.5 0.3 No. 212392 Phosphate Rock Mining 1,000 8 529.5 5.3 0.3 No. 212393 Other Chemical and Fertilizer Mineral Mining 500 45 667.0 6.7 0.4 No. 212399 All Other Nonmetallic Mineral Mining 500 185 1,044.1 10.4 0.6 No. 325998 All Other Miscellaneous Chemical Product and Preparation Manufacturing 500 3 53.1 0.5 0.0 No. 327310 Cement Manufacturing 1,000 50 2,513.3 25.1 1.4 No. 327410 Lime Manufacturing 750 30 849.9 8.5 0.4 No. 331313 Alumina Refining and Primary Aluminum Production 1,000 7 1,467.3 14.7 0.4 No. Grand Total 10,096 41,755.1 417.5 21.0 No.
    VI. Paperwork Reduction Act of 1995 A. Summary

    This final rule contains changes that affect the burden in an existing paperwork package with OMB Control Number 1219-0089 (Safety Defects-Examination, Correction, and Records). MSHA estimates that the final rule will result in an additional 222,519 burden hours with an associated additional cost of $7.6 million annually. Public comments relating to collection requirements were also applicable to the cost analysis section. MSHA has not repeated those comments as they appear above in this preamble.

    Burden for Final §§ 56.18002(b) and (c) and 57.18002(b) and (c)

    Final §§ 56.18002(b) and (c) and 57.18002(b) and (c) require the existing record to include the following additional information: The name of the person conducting the examination; the date of the examination; the location of all areas examined; a description of each condition found that may adversely affect the safety or health of miners; and the date when a condition that may adversely affect safety or health is corrected. MSHA estimates that a MNM competent person, earning $34.06 per hour, will take 5 additional minutes to add the information required by the final rule to the existing record. Burden hours and costs are shown below:

    • 161,903 hours = 10,451 mines with 1-19 employees × 1.1 shifts per day × 1 exam record × 169 workdays per year × 5 additional minutes;

    • 50,744 hours = 1,187 mines with 20-500 employees × 1.8 shifts per day × 1 exam record × 285 workdays per year × 5 additional minutes; and

    • 1,299 hours = 22 mines with 501+ employees × 2.2 shifts per day × 1 exam record × 322 workdays per year × 5 additional minutes.

    Total additional burden hours for final §§ 56.18002(b) and (c) and 57.18002(b) and (c) are 213,946 hours.

    Burden Hour Costs

    Total burden hour costs for final §§ 56.18002(b) and (c) and 57.18002(b) and (c) are $7,287,001 (213,946 hours × $34.06 per hour).

    Burden for Final §§ 56.18002(d) and 57.18002(d)

    Final §§ 56.18002(d) and 57.18002(d) require that the operator provide miners' representatives with a copy of the examination record on request. MSHA estimates that a MNM clerical employee, earning $22.43 an hour, will take 1 minute to make and provide a copy of the examination record to the representative of the miners. MSHA estimates that the number of times that a copy of the examination record will be requested is: 10 percent in mines with 1-19 employees; 50 percent in mines with 20-500 employees; and 100 percent in mines with 501+ employees. Burden hours and costs are shown below:

    • 3,238 hours = 10,451 mines with 1-19 employees × 10 percent × 1.1 shift per day × 169 workdays per year × 1 minute;

    • 5,074 hours = 1,187 mines with 20-500 employees × 50 percent × 1.8 shifts per day × 285 workdays per year × 1 minute; and

    • 260 hours = 22 mines with 501+ employees × 100 percent × 2.2 shifts per day × 322 workdays per year × 1 minute.

    Total burden hours for final §§ 56.18002(d) and 57.18002(d) are 8,572 hours.

    Burden Hour Costs

    Total Burden Hour Costs for final §§ 56.18002(d) and 57.18002(d) are $192,270 (8,572 hours × $22.43 per hour).

    Copy Cost Burden Related to Final §§ 56.18002(d) and 57.18002(d)

    On average, MSHA estimates that copy costs will be $0.30 (2 pages × $0.15 per page). Burden costs are shown below:

    • $58,285 = 10,451 mines with 1-19 employees × 10 percent × 1.1 shift per day × 169 workdays per year × $0.30 per copy;

    • $91,340 = 1,187 mines with 20-500 employees × 50 percent × 1.8 shifts per day × 285 workdays per year × $0.30 per copy; and

    • $4,675 = 22 mines with 501+ employees × 100 percent × 2.2 shifts per day × 322 workdays per year × $0.30 per copy.

    Total copy costs for burden related to final §§ 56.18002(d) and 57.18002(d) are $154,300.

    VII. Other Regulatory Considerations A. The Unfunded Mandates Reform Act of 1995

    MSHA has reviewed the final rule under the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1501 et seq.). MSHA has determined that this final rule does not include any federal mandate that may result in increased expenditures by State, local, or tribal governments; nor will it increase private sector expenditures by more than $100 million (adjusted for inflation) in any one year or significantly or uniquely affect small governments. Accordingly, the Unfunded Mandates Reform Act requires no further Agency action or analysis.

    B. The Treasury and General Government Appropriations Act of 1999: Assessment of Federal Regulations and Policies on Families

    Section 654 of the Treasury and General Government Appropriations Act of 1999 (5 U.S.C. 601 note) requires agencies to assess the impact of Agency action on family well-being. MSHA has determined that this final rule will have no effect on family stability or safety, marital commitment, parental rights and authority, or income or poverty of families and children. Accordingly, MSHA certifies that this final rule will not impact family well-being.

    C. Executive Order 12630: Government Actions and Interference With Constitutionally Protected Property Rights

    Section 5 of E.O. 12630 requires Federal agencies to “identify the takings implications of final regulatory actions. . . .” MSHA has determined that this final rule does not include a regulatory or policy action with takings implications. Accordingly, E.O. 12630 requires no further Agency action or analysis.

    D. Executive Order 12988: Civil Justice Reform

    Section 3 of E.O. 12988 contains requirements for Federal agencies promulgating new regulations or reviewing existing regulations to minimize litigation by eliminating drafting errors and ambiguity, providing a clear legal standard for affected conduct rather than a general standard, promoting simplification, and reducing burden. MSHA has reviewed this final rule and has determined that it will meet the applicable standards provided in E.O. 12988 to minimize litigation and undue burden on the Federal court system.

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

    MSHA has determined that this final rule will have no adverse impact on children. Accordingly, E.O. 13045 requires no further Agency action or analysis.

    F. Executive Order 13132: Federalism

    MSHA has determined that this final rule does not have federalism implications because 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. Accordingly, E.O. 13132 requires no further Agency action or analysis.

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

    MSHA has determined that this final rule does not have tribal implications because it will not have substantial direct effects 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. Accordingly, E.O. 13175 requires no further Agency action or analysis.

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

    E.O. 13211 requires agencies to publish a statement of energy effects when a rule has a significant energy action that adversely affects energy supply, distribution, or use. MSHA has reviewed this final rule for its energy effects because the final rule applies to the MNM mining sector. Although this final rule will result in yearly costs of approximately $34.5 million to the MNM mining industry, only the impact on uranium mines is applicable in this case. MSHA data show only three active uranium mines in 2015. The Energy Information Administration's annual uranium report for 2015 11 shows 4 million pounds at an average price of $42.86 per pound, for sales of approximately $171.4 million. Using average annual costs of the final rule, the impact to all active uranium mine operators is $57,010. MSHA has concluded that it is not a significant energy action because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Accordingly, under this analysis, no further Agency action or analysis is required.

    11http://www.eia.gov/uranium/production/annual/pdf/dupr.pdf, page 6.

    I. Executive Order 13272: Proper Consideration of Small Entities in Agency Rulemaking

    MSHA has reviewed the final rule to assess and take appropriate account of its potential impact on small businesses, small governmental jurisdictions, and small organizations. MSHA has determined that the final rule will not have a significant economic impact on a substantial number of small entities.

    VIII. References Bureau of Labor Statistics (BLS). 2016. Employment Cost Index CMU203000040500P, Private Industry Total benefits for construction, extraction, farming, fishing, and forestry occupations. http://download.bls.gov/pub/time.series/cm/cm.data.0.Current. Bureau of Labor Statistics (BLS). 2015. National Occupational Employment Statistics—National—May, 2015. (Accessed October 13, 2016). http://www.bls.gov/oes/tables.htm. Department of the Interior (DOI). 2016. Mineral Commodity Summaries 2016. U.S. Geological Survey, Reston, VA. 202 pages. http://minerals.usgs.gov/minerals/pubs/mcs/2016/mcs2016.pdf. Energy Information Administration (EIA). 2016. 2015 Domestic Uranium Production Report. U.S. Department of Energy, EIA, Washington, DC May 2016. 23 pages. Huang, Y.H., et al. 2009. Financial decision makers' views on safety: What SH&E professionals should know. Professional Safety. 54(4): 36-42. Maxey, H. 2013. Safety & Small Business. The Compass. Pages 12-22. [www.Asse.org] Mine Safety and Health Administration (MSHA). 2015. Mine Injury and Worktime, Quarterly, January-December 2015. Program Evaluation and Information Resources, Information Technology Center. 35 pages. http://arlweb.msha.gov/Stats/Part50/WQ/MasterFiles/MIWQ-Master-2015-final.pdf. Office of Management and Budget (OMB). 2011. Regulatory Impact Analysis: Frequently Asked Questions. Office of Information and Regulatory Affairs, February 7, 2011. 12 pages. http://www.whitehouse.gov/sites/default/files/omb/assets/OMB/circulars/a004/a-4_FAQ.pdf. Smitha, M.W., et al. 2001. Effect of state workplace safety laws on occupational injury rates. J. Occ. Environ. Med. 43(12):1001-1010. West Virginia Office of Miners' Health, Safety and Training. 2015. Notice of Final Filing and Adoption of a Legislative Rule Authorized by the West Virginia Legislature—Rules Governing the Safety of Those Employed in and Around Quarries in West Virginia. West Virginia Secretary of State Filed April 20, 2015. 83 pages. List of Subjects in 30 CFR Parts 56 and 57

    Explosives, Fire prevention, Hazardous substances, Metals, Mine safety and health, Reporting and recordkeeping requirements.

    Joseph A. Main, Assistant Secretary of Labor for Mine Safety and Health.

    For the reasons set out in the preamble, and under the authority of the Federal Mine Safety and Health Act of 1977, as amended by the Mine Improvement and New Emergency Response Act of 2006, MSHA is amending chapter I of title 30 of the Code of Federal Regulations as follows:

    PART 56—SAFETY AND HEALTH STANDARDS—SURFACE METAL AND NONMETAL MINES 1. The authority citation for part 56 continues to read as follows: Authority:

    30 U.S.C. 811.

    2. Revise § 56.18002 to read as follows:
    § 56.18002 Examination of working places.

    (a) A competent person designated by the operator shall examine each working place at least once each shift before miners begin work in that place, for conditions that may adversely affect safety or health.

    (1) The operator shall promptly notify miners in any affected areas of any conditions found that may adversely affect safety or health and promptly initiate appropriate action to correct such conditions.

    (2) Conditions noted by the person conducting the examination that may present an imminent danger shall be brought to the immediate attention of the operator who shall withdraw all persons from the area affected (except persons referred to in section 104(c) of the Federal Mine Safety and Health Act of 1977) until the danger is abated.

    (b) A record of each examination shall be made before the end of the shift for which the examination was conducted. The record shall contain the name of the person conducting the examination; date of the examination; location of all areas examined; and description of each condition found that may adversely affect the safety or health of miners.

    (c) When a condition that may adversely affect safety or health is corrected, the examination record shall include, or be supplemented to include, the date of the corrective action.

    (d) The operator shall maintain the examination records for at least one year, make the records available for inspection by authorized representatives of the Secretary and the representatives of miners, and provide these representatives a copy on request.

    PART 57—SAFETY AND HEALTH STANDARDS—UNDERGROUND METAL AND NONMETAL MINES 3. The authority citation for part 57 continues to read as follows: Authority:

    30 U.S.C. 811.

    4. Revise § 57.18002 to read as follows:
    § 57.18002 Examination of working places.

    (a) A competent person designated by the operator shall examine each working place at least once each shift before miners begin work in that place, for conditions that may adversely affect safety or health.

    (1) The operator shall promptly notify miners in any affected areas of any conditions found that may adversely affect safety or health and promptly initiate appropriate action to correct such conditions.

    (2) Conditions noted by the person conducting the examination that may present an imminent danger shall be brought to the immediate attention of the operator who shall withdraw all persons from the area affected (except persons referred to in section 104(c) of the Federal Mine Safety and Health Act of 1977) until the danger is abated.

    (b) A record of each examination shall be made before the end of the shift for which the examination was conducted. The record shall contain the name of the person conducting the examination; date of the examination; location of all areas examined; and description of each condition found that may adversely affect the safety or health of miners.

    (c) When a condition that may adversely affect safety or health is corrected, the examination record shall include, or be supplemented to include, the date of the corrective action.

    (d) The operator shall maintain the examination records for at least one year, make the records available for inspection by authorized representatives of the Secretary and the representatives of miners, and provide these representatives a copy on request.

    [FR Doc. 2017-00832 Filed 1-17-17; 4:15 pm] BILLING CODE 4510-43-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-HQ-OAR-2016-0764; FRL-9958-26-OAR] Extension of Deadline for Action on the November 28, 2016 Section 126 Petition From Delaware AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    In this action, the Environmental Protection Agency (EPA) is determining that 60 days is insufficient time to complete the technical and other analyses and public notice-and-comment process required for our review of a petition submitted by the state of Delaware pursuant to section 126 of the Clean Air Act (CAA). The petition requests that the EPA make a finding that Conemaugh Generating Station, located in Indiana County, Pennsylvania, emits air pollution that significantly contributes to nonattainment and interferes with maintenance of the 2008 and 2015 ozone national ambient air quality standards (NAAQS) in the state of Delaware. Under section 307(d)(10) of CAA, the EPA is authorized to grant a time extension for responding to a petition if the EPA determines that the extension is necessary to afford the public, and the agency, adequate opportunity to carry out the purposes of the section 307(d) notice-and-comment rulemaking requirements. By this action, the EPA is making that determination. The EPA is, therefore, extending the deadline for acting on the petition to no later than August 3, 2017.

    DATES:

    This final rule is effective on January 23, 2017.

    ADDRESSES:

    The EPA has established a docket for this action under Docket ID No. EPA-HQ-OAR-2016-0764. 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 electronically through http://www.regulations.gov.

    FOR FURTHER INFORMATION CONTACT:

    Mr. Benjamin Gibson, Office of Air Quality Planning and Standards (C545-E), U.S. EPA, Research Triangle Park, North Carolina 27709, telephone number (919) 541-3277, email: [email protected]

    SUPPLEMENTARY INFORMATION:

    I. Background and Legal Requirements for Interstate Air Pollution

    This is a procedural action to extend the deadline for the EPA to respond to a petition from the state of Delaware filed pursuant to CAA section 126(b). The EPA received the petition on December 5, 2016. The petition requests that the EPA make a finding under section 126(b) of the CAA that the Conemaugh Generating Station, located in Indiana County, Pennsylvania, is operating in a manner that emits air pollutants in violation of the provisions of section 110(a)(2)(D)(i) of the CAA with respect to the 2008 and 2015 ozone NAAQS.

    Section 126(b) of the CAA authorizes states to petition the EPA to find that a major source or group of stationary sources in upwind states emits or would emit any air pollutant in violation of the prohibition of CAA section 110(a)(2)(D)(i) 1 by contributing significantly to nonattainment or maintenance problems in downwind states. Section 110(a)(2)(D)(i)(I) of the CAA prohibits emissions of any air pollutant in amounts which will contribute significantly to nonattainment in, or interfere with maintenance by, any other state with respect to any NAAQS. The petition asserts that emissions from Conemaugh Generating Station's two electric generating units emit air pollutants in violation of CAA section 110(a)(2)(D)(i) with respect to the 2008 8-hour ozone NAAQS, set at 0.075 parts per million (ppm), and the revised 2015 8-hour ozone NAAQS, set at 0.070 ppm.2

    1 The text of CAA section 126 codified in the United States Code cross references CAA section 110(a)(2)(D)(ii) instead of CAA section 110(a)(2)(D)(i). The courts have confirmed that this is a scrivener's error and the correct cross reference is to CAA section 110(a)(2)(D)(i). See Appalachian Power Co. v. EPA, 249 F.3d 1032, 1040-44 (D.C. Cir. 2001).

    2 On October 1, 2015, the EPA strengthened the ground-level ozone NAAQS, based on extensive scientific evidence about ozone's effects on public health and welfare. See 80 FR 65291 (October 26, 2015).

    Pursuant to CAA section 126(b), the EPA must make the finding requested in the petition, or must deny the petition within 60 days of its receipt. Under CAA section 126(c), any existing sources for which the EPA makes the requested finding must cease operations within 3 months of the finding, except that the source may continue to operate if it complies with emission limitations and compliance schedules (containing increments of progress) that the EPA may provide to bring about compliance with the applicable requirements as expeditiously as practical but no later than 3 years from the date of the finding.

    CAA section 126(b) further provides that the EPA must hold a public hearing on the petition. The EPA's action under CAA section 126 is also subject to the procedural requirements of CAA section 307(d). See CAA section 307(d)(1)(N). One of these requirements is notice-and-comment rulemaking, under section 307(d)(3)-(6).

    In addition, CAA section 307(d)(10) provides for a time extension, under certain circumstances, for a rulemaking subject to CAA section 307(d). Specifically, CAA section 307(d)(10) provides:

    Each statutory deadline for promulgation of rules to which this subsection applies which requires promulgation less than six months after date of proposal may be extended to not more than six months after date of proposal by the Administrator upon a determination that such extension is necessary to afford the public, and the agency, adequate opportunity to carry out the purposes of the subsection.

    CAA section 307(d)(10) may be applied to CAA section 126 rulemakings because the 60-day time limit under CAA section 126(b) necessarily limits the period for promulgation of a final rule after proposal to less than 6 months.

    II. Final Rule A. Rule

    In accordance with CAA section 307(d)(10), the EPA is determining that the 60-day period afforded by CAA section 126(b) for responding to the petition from the state of Delaware is not adequate to allow the public and the agency the opportunity to carry out the purposes of CAA section 307(d). Specifically, the 60-day period is insufficient for the EPA to complete the necessary technical review, develop an adequate proposal, and allow time for notice and comment, including an opportunity for public hearing, on a proposed finding regarding whether the Conemaugh Generating Station identified in the CAA section 126 petition contributes significantly to nonattainment or interferes with maintenance of the 2008 ozone NAAQS or the 2015 ozone NAAQS in Delaware. Moreover, the 60-day period is insufficient for the EPA to review and develop response to any public comments on a proposed finding, or testimony supplied at a public hearing, and to develop and promulgate a final finding in response to the petition. The EPA is in the process of determining an appropriate schedule for action on the CAA section 126 petition. This schedule must afford the EPA adequate time to prepare a proposal that clearly elucidates the issues to facilitate public comment, and must provide adequate time for the public to comment and for the EPA to review and develop responses to those comments prior to issuing the final rule. As a result of this extension, the deadline for the EPA to act on the petition is August 3, 2017.

    B. Notice and Comment Under the Administrative Procedures Act (APA)

    This document is a final agency action, but may not be subject to the notice-and-comment requirements of the APA, 5 U.S.C. 553(b). The EPA believes that, because of the limited time provided to make a determination, the deadline for action on the CAA section 126 petition should be extended. Congress may not have intended such a determination to be subject to notice-and-comment rulemaking. However, to the extent that this determination otherwise would require notice and opportunity for public comment, there is good cause within the meaning of 5 U.S.C. 553(b)(3)(B) not to apply those requirements here. Providing for notice and comment would be impracticable because of the limited time provided for making this determination, and would be contrary to the public interest because it would divert agency resources from the substantive review of the CAA section 126 petition.

    C. Effective Date Under the APA

    This action is effective on January 23, 2017. Under the APA, 5 U.S.C. 553(d)(3), agency rulemaking may take effect before 30 days after the date of publication in the Federal Register if the agency has good cause to mandate an earlier effective date. This action—a deadline extension—must take effect immediately because its purpose is to extend by 6 months the deadline for action on the petition. As discussed earlier, the EPA intends to use the 6-month extension period to develop a proposal on the petition and provide time for public comment before issuing the final rule. It would not be possible for the EPA to complete the required notice and comment and public hearing process within the original 60-day period noted in the statute. These reasons support an immediate effective date.

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

    This action is exempt from review by the Office of Management and Budget because it simply extends the date for the EPA to take action on a petition.

    B. Paperwork Reduction Act (PRA)

    This action does not impose an information collection burden under the PRA. This good cause final action simply extends the date for the EPA to take action on a petition and does not impose any new obligations or enforceable duties on any state, local or tribal governments or the private sector. It does not contain any recordkeeping or reporting requirements.

    C. Regulatory Flexibility Act (RFA)

    This action is not subject to the RFA. The RFA applies only to rules subject to notice-and-comment rulemaking requirements under the APA, 5 U.S.C. 553, or any other statute. This rule is not subject to notice-and-comment requirements because the agency has invoked the APA good cause exemption under 5 U.S.C. 553(b).

    D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any 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. The action imposes no enforceable duty on any state, local or tribal governments or the private sector.

    E. Executive Order 13132: Federalism

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

    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 good cause final action simply extends the date for the EPA to take action on a petition. Thus, Executive Order 13175 does not apply to this rule.

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

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

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

    This action is not subject to Executive Order 13211 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 EPA believes that this action is not subject to Executive Order 12898 (59 FR 7629, February 16, 1994) because it does not establish an environmental health or safety standard. This good cause final action simply extends the date for the EPA to take action on a petition and does not have any impact on human health or the environment.

    K. Congressional Review Act (CRA)

    This action is subject to the CRA, and the EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. The CRA allows the issuing agency to make a rule effective sooner than otherwise provided by the CRA if the agency makes a good cause finding that notice-and-comment rulemaking procedures are impracticable, unnecessary or contrary to the public interest (5 U.S.C. 808(2)). The EPA has made a good cause finding for this rule as discussed in Section II.B of this document, including the basis for that finding.

    IV. Statutory Authority

    The statutory authority for this action is provided by sections 110, 126 and 307 of the CAA as amended (42 U.S.C. 7410, 7426 and 7607).

    V. Judicial Review

    Under section 307(b)(1) of the CAA, judicial review of this final rule is available only by the filing of a petition for review in the U.S. Court of Appeals for the appropriate circuit by March 24, 2017. Under section 307(b)(2) of the CAA, the requirements that are the subject of this final rule may not be challenged later in civil or criminal proceedings brought by us to enforce these requirements.

    List of Subjects in 40 CFR Part 52

    Environmental protection, Administrative practices and procedures, Air pollution control, Electric utilities, Incorporation by reference, Intergovernmental relations, Nitrogen oxides, Ozone.

    Dated: January 9, 2017. Gina McCarthy, Administrator.
    [FR Doc. 2017-00760 Filed 1-19-17; 8:45 am] BILLING CODE 6560-50-P
    DEPARTMENT OF HOMELAND SECURITY Federal Emergency Management Agency 44 CFR Part 64 [Docket ID FEMA-2016-0002; Internal Agency Docket No. FEMA-8463] Suspension of Community Eligibility AGENCY:

    Federal Emergency Management Agency, DHS.

    ACTION:

    Final rule.

    SUMMARY:

    This rule identifies communities where the sale of flood insurance has been authorized under the National Flood Insurance Program (NFIP) that are scheduled for suspension on the effective dates listed within this rule because of noncompliance with the floodplain management requirements of the program. If the Federal Emergency Management Agency (FEMA) receives documentation that the community has adopted the required floodplain management measures prior to the effective suspension date given in this rule, the suspension will not occur and a notice of this will be provided by publication in the Federal Register on a subsequent date. Also, information identifying the current participation status of a community can be obtained from FEMA's Community Status Book (CSB). The CSB is available at https://www.fema.gov/national-flood-insurance-program-community-status-book.

    DATES:

    The effective date of each community's scheduled suspension is the third date (“Susp.”) listed in the third column of the following tables.

    FOR FURTHER INFORMATION CONTACT:

    If you want to determine whether a particular community was suspended on the suspension date or for further information, contact Patricia Suber, Federal Insurance and Mitigation Administration, Federal Emergency Management Agency, 400 C Street SW., Washington, DC 20472, (202) 646-4149.

    SUPPLEMENTARY INFORMATION:

    The NFIP enables property owners to purchase Federal flood insurance that is not otherwise generally available from private insurers. In return, communities agree to adopt and administer local floodplain management measures aimed at protecting lives and new construction from future flooding. Section 1315 of the National Flood Insurance Act of 1968, as amended, 42 U.S.C. 4022, prohibits the sale of NFIP flood insurance unless an appropriate public body adopts adequate floodplain management measures with effective enforcement measures. The communities listed in this document no longer meet that statutory requirement for compliance with program regulations, 44 CFR part 59. Accordingly, the communities will be suspended on the effective date in the third column. As of that date, flood insurance will no longer be available in the community. We recognize that some of these communities may adopt and submit the required documentation of legally enforceable floodplain management measures after this rule is published but prior to the actual suspension date. These communities will not be suspended and will continue to be eligible for the sale of NFIP flood insurance. A notice withdrawing the suspension of such communities will be published in the Federal Register.

    In addition, FEMA publishes a Flood Insurance Rate Map (FIRM) that identifies the Special Flood Hazard Areas (SFHAs) in these communities. The date of the FIRM, if one has been published, is indicated in the fourth column of the table. No direct Federal financial assistance (except assistance pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act not in connection with a flood) may be provided for construction or acquisition of buildings in identified SFHAs for communities not participating in the NFIP and identified for more than a year on FEMA's initial FIRM for the community as having flood-prone areas (section 202(a) of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4106(a), as amended). This prohibition against certain types of Federal assistance becomes effective for the communities listed on the date shown in the last column. The Administrator finds that notice and public comment procedures under 5 U.S.C. 553(b), are impracticable and unnecessary because communities listed in this final rule have been adequately notified.

    Each community receives 6-month, 90-day, and 30-day notification letters addressed to the Chief Executive Officer stating that the community will be suspended unless the required floodplain management measures are met prior to the effective suspension date. Since these notifications were made, this final rule may take effect within less than 30 days.

    National Environmental Policy Act. FEMA has determined that the community suspension(s) included in this rule is a non-discretionary action and therefore the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) does not apply.

    Regulatory Flexibility Act. The Administrator has determined that this rule is exempt from the requirements of the Regulatory Flexibility Act because the National Flood Insurance Act of 1968, as amended, Section 1315, 42 U.S.C. 4022, prohibits flood insurance coverage unless an appropriate public body adopts adequate floodplain management measures with effective enforcement measures. The communities listed no longer comply with the statutory requirements, and after the effective date, flood insurance will no longer be available in the communities unless remedial action takes place.

    Regulatory Classification. This final rule is not a significant regulatory action under the criteria of section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735.

    Executive Order 13132, Federalism. This rule involves no policies that have federalism implications under Executive Order 13132.

    Executive Order 12988, Civil Justice Reform. This rule meets the applicable standards of Executive Order 12988.

    Paperwork Reduction Act. This rule does not involve any collection of information for purposes of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.

    List of Subjects in 44 CFR Part 64

    Flood insurance, Floodplains.

    Accordingly, 44 CFR part 64 is amended as follows:

    PART 64—[AMENDED] 1. The authority citation for Part 64 continues to read as follows: Authority:

    42 U.S.C. 4001 et seq.; Reorganization Plan No. 3 of 1978, 3 CFR, 1978 Comp.; p. 329; E.O. 12127, 44 FR 19367, 3 CFR, 1979 Comp.; p. 376.

    § 64.6 [Amended]
    2. The tables published under the authority of § 64.6 are amended as follows: State and location Community
  • No.
  • Effective date authorization/cancellation of sale of flood insurance in community Current
  • effective
  • map date
  • Date certain
  • Federal
  • assistance no
  • longer available
  • in SFHAs
  • Region VII Missouri: Jackson County, Unincorporated Areas 290492 June 19, 1974, Emerg; September 29, 1978, Reg; January 20, 2017, Susp Jan. 20, 2017 Jan. 20, 2017. Raytown, City of, Jackson County 290176 February 27, 1975, Emerg; September 15, 1978, Reg; January 20, 2017, Susp ......do   do. * do = Ditto. Code for reading third column: Emerg. —Emergency; Reg. —Regular; Susp. —Suspension.
    Dated: January 6, 2017. Michael M. Grimm, Assistant Administrator for Mitigation, Federal Insurance and Mitigation Administration, Department of Homeland Security, Federal Emergency Management Agency.
    [FR Doc. 2017-01102 Filed 1-19-17; 8:45 am] BILLING CODE 9110-12-P
    FEDERAL COMMUNICATIONS COMMISSION 47 CFR Parts 6, 7, 14, 20, 64, and 67 [CG Docket No. 16-145 and GN Docket No. 15-178; FCC 16-169] Transition From TTY to Real-Time Text Technology AGENCY:

    Federal Communications Commission.

    ACTION:

    Final rule.

    SUMMARY:

    In this document, the Commission adopts amendments to its rules to facilitate a transition from outdated text telephone (TTY) technology to a reliable and interoperable means of providing real-time text (RTT) communication for people who are deaf, hard of hearing, deaf-blind, or have a speech disability over Internet Protocol (IP) enabled networks and services.

    DATES:

    Document FCC 16-169 will become effective February 22, 2017. The incorporation by reference of certain publications listed in the rules is approved by the Director of the Federal Register as of February 22, 2017.

    ADDRESSES:

    Federal Communications Commission, 445 12th Street SW., Washington, DC 20554.

    FOR FURTHER INFORMATION CONTACT:

    Michael Scott, Consumer and Governmental Affairs Bureau, at (202) 418-1264; email: [email protected] or Suzy Rosen Singleton, Consumer and Governmental Affairs Bureau, at (202) 510-9446; email: [email protected]

    SUPPLEMENTARY INFORMATION:

    This is a summary of the Commission's Transition from TTY to Real-Time Text Technology; Petition for Rulemaking to Update the Commission's Rules for Access to Support the Transition from TTY to Real-Time Text Technology, and Petition for Waiver of Rules Requiring Support of TTY Technology, Report and Order, document FCC 16-169, adopted on December 15, 2016 and released on December 16, 2016, in CG Docket No. 16-145, GN Docket No. 15-178. The Further Notice of Proposed Rulemaking, FCC 16-169, adopted on December 15, 2016 and released on December 16, 2016, is published elsewhere in this issue. The full text of document FCC 16-169 will be available for public inspection and copying via ECFS, and during regular business hours at the FCC Reference Information Center, Portals II, 445 12th Street SW., Room CY-A257, Washington, DC 20554. To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an email to [email protected] or call the Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), (844) 432-2272 (videophone), or (202) 418-0432 (TTY).

    Incorporation by Reference

    The Office of Federal Register (OFR) recently revised its regulations to require that agencies must discuss in the preamble of a final rule ways that the materials the agency is incorporating by reference are reasonably available to interested parties or how it worked to make those materials reasonably available to interested parties. In addition, the preamble of the final rule must summarize the material. The Internet Engineering Task Force (IETF) Request for Comments (RFC) 4103, Real-time Transport Protocol Payload for Text Conversation, June 2005, Gunnar Hellstrom & Paul E. Jones, provides technical specifications for carrying real-time text conversation session contents in RTP packets on Internal Protocol-based communications networks. This document is available for download at the Internet Engineering Task Force Web site at http://ietf.org or directly at https://www.ietf.org/rfc/rfc4103.txt, and is available for inspection at the Federal Communications Commission, 445 12th St. SW., Reference Information Center, Room CY-A257, Washington, DC 20554, (202) 418-0270. It is also available for inspection 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/code_of_federal_regulations/ibr_locations.html.

    Congressional Review Act

    The Commission will send a copy of document FCC 16-169 to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

    Final Paperwork Reduction Act of 1995 Analysis

    Paragraphs 42 and 43 of document FCC 16-169 contain new information collection requirements, which are not applicable until approved by the Office of Management and Budget (OMB). The Commission, as part of its continuing effort to reduce paperwork burdens, will invite the general public to comment on these information collection requirements as required by the Paperwork Reduction Act (PRA) of 1995, Public Law 104-13. The Commission will publish a separate document in the Federal Register announcing approval of the information collection requirements contained in document FCC 16-169. In addition, the Commission notes that, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, 44 U.S.C. 3506(c)(4), the Commission previously sought comment on how the Commission might “further reduce the information burden for small business concerns with fewer than 25 employees.” Transition from TTY to Real-Time Text Technology; Petition for Rulemaking to Update the Commission's Rules for Access to Support the Transition from TTY to Real-Time Text Technology, and Petition for Waiver of Rules Requiring Support of TTY Technology, Notice of Proposed Rulemaking, published at 81 FR 33170, May 25, 2016 (NPRM).

    Synopsis

    1. In document FCC 16-169, the Commission amends its rules to facilitate a transition from text telephone (TTY) technology to real-time text (RTT) as a reliable and interoperable universal text solution over wireless Internet protocol (IP) enabled networks for people who are deaf, hard of hearing, deaf-blind, or have a speech disability (collectively, “people with disabilities” or “text-reliant users”). The instant proceeding responds to a petition filed by AT&T in June 2015, requesting the Commission to update its accessibility rules to allow RTT to replace TTY technology over IP-based networks. On April 28, 2016, the Commission adopted an NPRM proposing to amend its rules to facilitate an effective and seamless transition from TTY technology to RTT over wireless IP-based networks and services. In response, 25 parties filed comments and 13 filed reply comments.

    RTT Is an Effective and Efficient Replacement for TTY Technology

    2. There is consensus among the commenters that, in light of its technical and functional limitations, TTY technology needs to be replaced with an alternative text technology for IP-based networks. The Commission adopts its tentative conclusion that RTT is an effective alternative to TTY technology for the IP environment. RTT is a native IP technology designed for the packet-switched network environment that allows users to make RTT calls using the built-in functionality of numerous off-the-shelf devices. Commenters confirm that RTT features, including its full duplex operation, seamless integration of voice and text, international character set, and speed, will greatly improve the availability, efficiency and reliability of text-based communications sent over IP-based networks. In addition, RTT has the potential to enhance the ability of telecommunications relay services (TRS) to provide functionally equivalent telephone service, while at the same time reducing reliance on some forms of TRS. Finally, all of the major and several smaller wireless service providers already have committed to deploying this technology.

    3. RTT is a superior accessibility technology to messaging-type text communication services because it provides a more natural and efficient way to meet the communication needs of consumers with disabilities, especially in the event of an emergency, when the need for effective and timely communication with a 911 center is at a premium. Because RTT allows instant transmissions and the improved delivery of messages, it is the text alternative that is the most functionally equivalent to voice communication. Specifically, RTT messages are immediately conveyed to and received by the recipient as the message is composed, as compared to all other text-based messaging services, which require parties to press a key to transmit the message. This enables the user to see what the other person is typing and begin developing a response before the entire message has been conveyed, similar to voice conversations. This capability also lets a user know that the other party is indeed responding to the message, which allows for a more direct exchange of information and avoids confusion, crossed answers, and errors. The transition to RTT is also expected to help facilitate the transition to Next Generation 911 (NG911)—which will allow the transmission of voice, text and video to public safety answering points (PSAPs)—because broadly supported NG911 standards, such as i3, specify support standards for RTT communications. Further, RTT has built-in redundancy and the capacity to detect when information is lost, provides a more conversational flow, and avoids the out-of-sequence and delay pitfalls of short message service (SMS) text messaging.

    Permitting RTT Support in Lieu of TTY Support Over IP-Based Wireless Voice Services and Devices

    4. The Commission adopts rules permitting IP-based wireless providers and manufacturers (covered entities) to support RTT in lieu of supporting TTY technology. These rule changes cover only those entities that are involved in the provision of IP-based wireless voice communication service, and only to the extent that their services are subject to existing TTY technology support requirements under parts 6, 7, 14, 20, or 64 of the Commission's rules. Given the relative novelty of RTT, it is not appropriate for these rules to apply to entities who were not already subject to an equivalent obligation to support TTY technology.

    5. The Commission concludes that it would be premature at this time to address application of RTT to the wireline environment. However, given RTT's superiority to TTY technology, the Commission will keep this docket open to receive further input and conduct continued exploration on the appropriateness of using this technology as an alternative to TTY technology to achieve a universal, integrated text solution for voice service accessibility on wireline IP-based voice services and end user devices.

    Wireless Service Support for RTT

    6. To establish an effective and timely transition to RTT, the Commission amends parts 6, 7, 14, 20, and 64 of its rules to permit wireless service providers offering IP-based voice communications, in lieu of supporting TTY technology:

    • To support 911 access, pursuant to § 20.18 of the Commission's rules, through RTT communications;

    • To support RTT over telecommunications services and interconnected voice-over-IP (VoIP) services covered by parts 6 and 7 of the Commission's rules, if readily achievable;

    • To support RTT over interconnected VoIP services covered by part 14 of the Commission's rules, unless not achievable;

    • To support TRS access, pursuant to § 64.603 of the Commission's rules, through RTT communications, including 711 abbreviated dialing access.

    For purposes of this transition, “to support” is defined in a new part 67 of the Commission's rules as “to enable users to initiate, send, transmit, receive, and display RTT communications in accordance with the applicable provisions of this part.”

    7. The Commission finds that it has sufficient legal authority to amend the above rule parts to allow support for RTT in lieu of TTY technology. The Commission affirms that its RTT amendments to § 20.18(c) are within the Commission's general Title III authority to regulate wireless service providers. Section 106 of the Twenty-First Century Communications and Video Accessibility Act of 2010, Public Law 111-260 (CVAA), 47 U.S.C. 615c(g), section 251 of the Communications Act (the Act), 47 U.S.C. 251(e)(3), the Wireless Communications and Public Safety Act of 1999, 47 U.S.C. 615-615(b), and the NET 911 Improvement Act of 2008, 47 U.S.C. 615a-l, further support the Commission's adoption of RTT as a superior solution for enabling text-reliant users to access 911.

    8. The Commission next affirms that it is within the Commission's authority under sections 255 and 716 of the Communications Act (the Act) to amend parts 6, 7, and 14 of the Commission's rules to permit wireless telecommunications and interconnected VoIP service providers to support RTT in lieu of supporting TTY technology. Given the limitations of TTY technology in an IP environment, this action is necessary to fulfill the intent of the CVAA to “update the communications laws to help ensure that individuals with disabilities are able to fully utilize communications services and equipment” as these continue to undergo a “fundamental transformation.”

    9. Finally, the Commission concludes that the Commission has sufficient authority under section 225 of the Act, 47 U.S.C. 225, to amend its TRS rules to permit common carriers and interconnected VoIP service providers to support the transmission of RTT calls to and from TRS providers, including 711 abbreviated dialing. Section 225 of the Act directs the Commission to ensure that TRS is available “in the most efficient manner” and to “ensure that regulations prescribed to implement this section encourage . . . the use of existing technology and do not discourage or impair the development of improved technology.”

    End User Device Support for RTT

    10. The Commission amends § 20.18 of its rules to allow new IP-enabled wireless devices used for voice communications that have the capability to send, receive, and display text activated for wireless voice services transmitted over IP facilities (hereinafter, text-capable) to support RTT in lieu of TTY communications. In addition, the Commission amends parts 6, 7, and 14 to provide manufacturers of end user equipment for use with wireless interconnected VoIP services with the option of supporting RTT communications in lieu of TTY technology “if readily achievable” or “unless not achievable,” as applicable. The Commission concludes that the same statutory provisions that provide the Commission with authority to allow RTT support in lieu of TTY support requirements for wireless services also provide authority to allow support for RTT on end user devices in lieu of support for TTYs.

    11. The Commission does not require service providers and manufacturers to add RTT capability by recalling or retrofitting end user devices already in service or manufactured prior to the applicable compliance dates. At the same time, the Commission encourages covered entities to “push out” downloadable RTT applications to existing text-capable user devices, to the extent practicable, to help consumers who use IP-based voice services make the transition to RTT technology without necessarily incurring the cost of a new device.

    Regulatory Relief

    12. Covered entities that support RTT in compliance with the Commission's rules will be relieved of their TTY support requirements on all wireless networks and equipment, including services and devices used for legacy (non-IP) facilities, as of the applicable compliance dates. Given the declining use of TTYs, especially with wireless services, elimination of the TTY support obligation on wireless services is not expected to impose a hardship for text-reliant consumers. Additionally, given the progress being made to move ahead with the swift deployment of RTT, the Commission believes that allowing RTT to replace TTY technology on all IP-based wireless services will allow companies to devote greater time and resources to the effective deployment of RTT, instead of continuing to invest in outdated TTY technology.

    Performance Objectives

    13. The Act defines an electronic messaging service as “a service that provides real-time or near real-time non-voice messages in text form between individuals over communications networks.” Because RTT is similar to other examples of two-way interactive electronic messaging services cited in the legislative history of the CVAA—such as text messaging, instant messaging, and electronic mail—the Commission concludes that RTT is an electronic messaging service for purposes of section 716 of the Act. Thus, services and equipment used for RTT must comply more generally with the performance objectives contained in part 14 of the Commission's rules unless these are not achievable.

    Minimum Functionalities of RTT

    14. The Commission believes that in order to meet the objectives of sections 225, 255, and 716 of the Act, communications services and equipment that support RTT should be as accessible, usable, and effective for people with disabilities as voice-based services over IP-networks. To achieve this goal, the Commission concludes that RTT communications must be interoperable, backward compatible with TTY technology, and capable of supporting certain basic features and capabilities that are routinely available to users of wireless voice services.

    Interoperability

    15. The Commission concludes that effective RTT communications can only be achieved if the communications transmissions carried across, and the devices used with, various RTT-supporting platforms and networks are interoperable with one another. Absent interoperability, consumers, TRS call centers, and PSAPs would be burdened with having to support multiple versions of RTT. The record supports the use of a safe harbor technical standard to achieve interoperability while preserving technological neutrality and flexibility for the covered entities. This approach provides industry the flexibility to have individual internal RTT standards, so long as they can support the minimum functions and capabilities defined by the Commission's rules and can interoperate in a format specified in the common standard (or a mutually agreed alternative) where they connect with other providers' systems and transport technologies.

    16. The Commission adopts RFC 4103, a non-proprietary, freely available standard that has been widely referenced by leading standards organizations and has been designated for RTT implementation by numerous domestic and foreign carriers as well as emergency communications groups, as the appropriate safe harbor standard for compliance with RTT interoperability requirements and certain performance objectives. Accordingly, any service or device that enables the initiation, transmission, reception, and display of RTT communications in conformity with RFC 4103 will meet the RTT interoperability requirement. Because RFC 4103 is subject to modification, service providers may use subsequent versions of RFC 4103 or a successor protocol, by mutual agreement.

    Backward Compatibility with TTY Technology

    17. To ensure that TTY-reliant consumers continue to have a method of communicating during the transition to RTT technology, the Commission requires wireless service providers to ensure that their RTT technology is backward compatible with TTY technology. A migration to RTT without backward compatibility to TTY technology could leave certain people who are still reliant on TTYs without communication options, including persons who cannot afford high speed access, people in rural areas for whom IP service is not available, and senior citizens who might be reluctant to try new technology. Further, because many PSAPs are still reliant on TTY technology to receive calls from people with disabilities and it may be a while before they migrate to RTT, enabling RTT users to reach 911 emergency services during the transition period is particularly compelling.

    18. No parties suggest that the costs of carrying out a backward compatibility requirement would be burdensome, and the record generally supports the feasibility of implementing this requirement through, for example, the use of gateways and RFC 4103. Some commenters recommend limiting backward compatibility to 911 and 711 (TRS) calls, to ensure that congestion does not prevent RTT calls from getting through to these essential services. However, these concerns can be avoided by letting transcoding of such calls be performed by 911 service providers or TRS providers, and ongoing testing should allow service providers to identify and find TTY-RTT and RTT-TTY solutions to the extent that technical issues arise.

    19. Commenters point out that incompatibilities between RTT and TTY technologies, namely differences in transmission speed, character sets, and other features, may impact user experience, particularly if the RTT user is unfamiliar with TTY protocols and etiquette. With the exception of providing guidance on transliterations between characters, discussed below, the Commission does not address specific solutions to resolve RTT-TTY incompatibility issues, but instead allows service providers and other stakeholders the flexibility to develop their own technical solutions to resolve inconsistencies between the two technologies. The Commission stresses that public outreach and consumer education about the transition will play an important role in minimizing any adverse effects that RTT-TTY incompatibilities might have on users.

    20. The Commission will allow use of ITU-T Recommendation V.18, which contains a table showing transliterations from the most commonly used characters in the United States to TTY characters, to serve as a safe harbor for transliterating RTT to TTY characters. While the Commission concludes that this approach may provide one effective means of transliterating characters between the two technologies, the Commission also will permit covered entities to choose their own transliteration approach, so long as it can effectively convey the meaning of characters sent to the receiving party. The Commission further encourages use of a standard missing-symbol signal, as well as consumer outreach and education, to help minimize inconsistencies that users may experience as a result of differences between the two character sets.

    21. Given the uncertainty as to how soon RTT will be universally available and familiar to users of wireline and wireless services, the Commission concludes that it is premature at this time to set a date by which the TTY backward compatibility obligation should expire.

    Support for 911 Communications

    22. Commercial mobile radio service (CMRS) providers transmitting over an IP network that choose to enable the transmission and receipt of communications via RTT—in lieu of TTY technology—to and from any PSAP served by their network, must do so in a manner that fully complies with all applicable 911 rules. Support for RTT in lieu of TTY technology is especially beneficial in emergency situations, and the record shows that the use of RTT for emergency communications is technically and economically feasible in the IP environment. There are a variety of existing options for configuring PSAP systems to receive RTT calls, and many PSAPs have installed or will soon install capabilities that will permit them to accept and effectively process RTT calls. Accordingly, to the extent RTT is the accessibility method chosen, RTT must be delivered without RTT-TTY conversion to PSAPs that are able to receive RTT after the dates specified for compliance by CMRS providers in document FCC 16-169.

    23. The Commission amends its rules to require that once a PSAP is capable of receiving RTT communications, a service provider receiving a service request must begin delivering RTT communications in an RTT format within six months after such request is made—to the extent the provider has selected RTT as its accessible text communication method. The Commission does not dictate the manner in which RTT-RTT communications must be transmitted to PSAPs, so long as they are otherwise in compliance with the rules adopted in document FCC 16-169. In the event that there are compelling reasons why it would not be feasible for a wireless service provider to transport RTT communications to the PSAP, the service provider may apply for a waiver from this requirement.

    24. Many commenters agree that transcoding gateways offer an effective, feasible, and available means to allow TTY users to reach RTT-enabled PSAPs and RTT users to reach legacy PSAPs. T-Mobile, however, claims that this obligation would shift certain burdens now borne by PSAPs onto wireless carriers. Because the components of 911 call delivery referenced by T-Mobile are all basic 911 elements that carriers have been required to provide when transmitting calls from TTYs under § 20.18 of the Commission's rules, the Commission does not believe that requiring the delivery of RTT 911 calls to PSAPs with the elements required by § 20.18 of the rules would involve any burden shifting. T-Mobile also claims that wireless carriers should not be held responsible for RTT-to-TTY conversion of 911 calls, but providers of 911 services commenting in this proceeding affirm the feasibility of accepting RTT calls. Given this record and the lack of a basis to conclude otherwise, the Commission rejects T-Mobile's argument.

    25. The Commission encourages carriers and state and local governments to conduct testing of RTT and training of 911 call-takers in consultation with consumers, prior to RTT deployment, and to share the results with other jurisdictions.

    26. Under the Commission's rules, wireless CMRS providers supporting TTY calling to 911 must ensure that location information is provided in accordance with the applicable requirements of § 20.18. Given the importance of this feature, RTT 911 calls should be subject to the same location information requirements as TTY 911 calls, and the Commission amends its rules accordingly. However, given concerns raised about the feasibility of achieving compliance with this requirement via RTT provided through a downloadable application, the Commission will entertain requests for waivers from this requirement that allege that this is not technically feasible.

    27. Regarding non-service initialized (NSI) devices, because the Commission has an open proceeding to sunset or revise rules for 911 calling from such devices, the Commission defers consideration of the use of NSI devices for RTT calling to 911 to that proceeding.

    Core RTT Features

    28. The following RTT features are needed to take the place of TTY technology and provide an effective communication alternative to voice communications. Two of these—initiating and receiving calls via the same ten-digit numbers used for voice calls and simultaneous voice and text—will be required for entities seeking to support RTT in lieu of TTY technology.

    29. Initiating and Receiving Calls Using RTT. The Commission adopts its proposal that for wireless service providers and manufacturers to meet their accessibility obligations by supporting RTT, their networks and devices must be configured so that RTT communications can be initiated to and received from the same telephone number that can be used to initiate and receive voice communications on a given terminal device. The ability to initiate RTT communications through ten-digit telephone numbers will encourage and promote seamless integration of RTT and enabling access to ten-digit numbers is necessary to reach and be reached by any other person with a phone number and to ensure that RTT users can access 911 services. No commenters question the feasibility of providing this feature, or suggest that it would be overly burdensome.

    30. Accessible Indicators. The Commission agrees with some commenters that without an accessible indicator that a call is being received, text-reliant users will not have communications equivalent to voice service, which produces an audio ring or other sounds to alert people who can hear. Given the importance of this feature for individuals who cannot hear and individuals who can neither hear nor see, the Commission recommends that device manufacturers and service providers incorporate accessible indicators in their RTT implementation to alert users to the receipt of, and audio activity on, an RTT call.

    31. Simultaneous voice and text. The Commission adopts its proposal that users of RTT must be able to send and receive both text and voice simultaneously in both directions over IP on the same call session and via a single device. Providing the ability to send and receive simultaneous voice and text is feasible, is supported by RFC 4103, and is an essential feature of RTT. Simultaneous voice and text also can allow for more robust exchanges between RTT users and PSAPs. Further, it can be particularly beneficial to people for whom speech is their primary mode of communication, but who find it necessary to augment speech with text, such as older adults who have progressive hearing loss, many of whom currently rely on relay services to make telephone calls. Finally, this feature can prove to be life-saving in emergencies, when a person in distress may want to type out an emergency's exact location to a 911 call taker to ensure accuracy, or when a person is no longer able to speak. Because TTY users currently have the ability to use both voice and text in the same call session, requiring this for RTT implementation will ensure that people with disabilities do not lose access to services they have had, should their providers opt to support RTT in lieu of TTY technology. Accordingly, an essential element of RTT support for entities choosing to support RTT over TTY technology will be the ability of users to have simultaneous voice and text capability on the same call session as of the compliance deadlines for CMRS providers opting to provide RTT support for all new authorized user devices activated on their networks.

    32. Latency and Error Rate of Text Transmittal. The Commission believes that ensuring a latency and error rate that is functionally equivalent to the real-time nature of voice telephone communications is important to making real-time text effective for text-reliant users. It is the Commission's understanding that this component is addressed through the safe harbor standard RFC 4103, which sets a maximum typing-to-transmission latency. The Commission recommends that industry and consumer stakeholders work together to determine appropriate latency and error rate parameters. The Commission believes that this approach will provide much needed flexibility for industry, while minimizing delays and errors that could impede effective communication for people with disabilities.

    33. Device Functionality. A significant advantage to RTT is that it will allow text-reliant users to select off-the-shelf IP-based wireless devices offered to the public for their telephone communications.

    34. The extent to which RTT is successful as a replacement for TTY and as an alternative to voice communications, however, will turn in large part on its ease of use by not only text-reliant users, but also members of the public with whom they are likely to converse. For this reason various commenters have urged inclusion of RTT as a pre-installed feature of end-user devices that is enabled by a default function. The Commission is concerned that some of the advantages of RTT as a universal text solution might not be realized if RTT is not enabled by default. The Commission strongly encourages covered entities seeking to meet their accessibility obligations by supporting RTT in lieu of TTY technology to take measures that facilitate, rather than discourage RTT use. While the Commission does not impose mandates for RTT to be pre-installed or accessed through a default function at this time, the Commission notes that the success of RTT's deployment and use may turn on its ease of use, and that its swift adoption is likely to expedite the date for phasing out requirements for TTY support, including the requirement for RTT to be backward compatible with TTYs. The Commission encourages collaboration among industry and consumer stakeholders to reach agreement on the appropriate features and technical aspects of RTT implementation.

    35. Calling Features. In the NPRM, the Commission tentatively concluded that certain calling features that are commonly available to voice telephone users are necessary to ensure that RTT is as accessible, usable, and effective for people with disabilities as wireless voice communications service is for people without disabilities, including the ability to transfer calls, enable multi-party teleconferencing, and utilize automated attendant, interactive voice response systems, and caller identification features. Given that the deployment of RTT is still in its infancy in the U.S., rather than mandate specific calling features or capabilities, the Commission notes more generally the overarching goal of enabling RTT to serve as a universally integrated accessibility solution that is functionally equivalent to voice communications. Consideration of the above calling features may be relevant as wireless voice communications service providers and equipment manufacturers work to identify and eliminate barriers to accessibility and usability during the design and development phases of their RTT products and services. The Commission also reminds companies that parts 6 and 7 of the rules require inclusion of people with disabilities in market research, product design, testing, pilot demonstrations, and product trials. These rules also require covered entities to work cooperatively with disability-related organizations, and to keep records of their efforts to implement parts 6, 7, and 14, including information about their efforts to consult with people with disabilities regarding RTT accessibility features.

    Timeline for RTT Implementation by Service Providers

    36. At present all Commission waivers from the TTY support obligations expire on December 31, 2017, or upon the effective date of rules providing for alternative IP-based wireless accessibility solutions, whichever is earlier. To the extent that a service provider prefers to support RTT access in lieu of TTY technology and does not wish to seek an extension of the current waiver, it can meet the following compliance timelines, which will supersede the December 31, 2017 deadline: By December 31, 2017, each Tier I service provider must either (1) offer a downloadable application or plug-in that supports RTT or (2) comply with the following: (i) Implement in its core network the capability to support RTT; (ii) offer at least one new handset that supports native RTT functionality, and (iii) for all authorized end user devices specified on or after that date, include in future design specifications the requirement to support RTT. For all other (non-Tier I) carriers opting to provide RTT support, such compliance must be achieved by June 30, 2020. A carrier must meet these obligations except to the extent that it is not achievable for a particular manufacturer to support RTT on that carrier's network.

    37. By December 31, 2019, each Tier I service provider opting to support RTT in lieu of TTY technology must provide such support for all new authorized user devices activated on its networks. Non-Tier I service providers (including resellers) that opt to support RTT must do so for all new authorized user devices activated on their networks by June 30, 2021. A carrier must meet these obligations except to the extent that it is not achievable for a particular manufacturer to support RTT on that carrier's network. A carrier may rely in good faith on a manufacturer's representations that it has complied with its obligations under sections 716 and 717 of the Communications Act.

    38. These deadlines are set in order to accommodate variances in manufacturer product lifecycles, while still ensuring that devices with native RTT functionality are available by a date certain. Among other things, they allow CMRS providers that do not fall into Tier I with additional time to comply with the RTT support requirements because they serve small subscriber populations, have fewer device options, often acquire the latest handset models much later than Tier I providers, and have limited influence on the technical ecosystem and standards setting. The Commission expects that handsets offered pursuant to these timelines will be compatible with at least the current versions of the operating systems available on text-capable handsets offered for sale by the service providers.

    Timeline for RTT Implementation by Manufacturers

    39. The Commission requires manufacturers opting to provide RTT support, in lieu of supporting TTY technology, to provide RTT functionality in handsets and other text-capable end user devices for wireless IP-based voice services, subject to the readily achievable or achievable limitation, as applicable, for all devices manufactured on or after December 31, 2018.

    Other Compliance Deadlines and Related Matters

    40. Although all compliance timelines contained in this section are prospective only, in that they do not require covered entities to retrofit “in-service” devices, pursuant to parts 6, 7, and 14 of the Commission's rules, entities covered under sections 255 and 716 of the Act are required to meet accessibility obligations as natural opportunities occur. As discussed earlier, the Commission encourages covered entities, to the extent practicable, to “push out” downloadable apps or upgrades to operating systems to any in-service handsets that can support those apps or upgrades after each applicable compliance deadline.

    41. The Commission clarifies that a wireless service provider or manufacturer in compliance with the RTT obligations adopted in this Report and Order will be relieved of its TTY support obligations on all wireless networks and equipment, including services and devices used for legacy (non-IP) facilities. To provide an incentive for early implementation of RTT, a provider or manufacturer that achieves early compliance with the RTT support requirements will be relieved of its TTY support obligations as of the date upon which such provider or manufacturer achieves such RTT support compliance. The Commission further provides that, for those carriers currently subject to a limited waiver of their TTY support requirements that would expire prior to their earliest applicable RTT compliance date, the Commission extends the waiver to that date.

    Education, Outreach, and Notifications

    42. To inform the public about the transition from TTY technology to RTT and the mechanics of how RTT technology will work, the Commission encourages consumer outreach and education efforts to include (1) the development and dissemination of educational materials that contain information pertinent to the nature, purpose and timelines of the RTT transition; (2) Internet postings, in an accessible format, of information about the TTY to RTT transition on the Web sites of covered entities; (3) the creation of a telephone hotline and online interactive and accessible service that can answer consumer questions about RTT; and (4) appropriate training of staff to effectively respond to consumer questions. All consumer outreach and education needs to be provided in a manner that is accessible to individuals with disabilities. The Commission encourages service providers and manufacturers to coordinate with consumer, public safety, and industry stakeholders to develop and distribute education and outreach materials. The Commission further directs the Commission's Consumer and Governmental Affairs Bureau (CGB) to implement an outreach plan to complement industry's efforts to fully inform the public about RTT.

    43. The Commission also adopts its proposal to have the notice conditions imposed in the Bureau's waiver orders remain in effect until the full implementation of the rules adopted in this proceeding. The continued provision of this information is necessary to ensure consumers with disabilities do not expect that TTY technology will be supported by IP-based wireless services when calling 911 services, to educate consumers about the availability of RTT, including its limitations when communicating with PSAPs that have only TTY capability, and to ensure these consumers know alternative accessible telecommunications options exist for this purpose. These notifications should also be provided in formats that are fully accessible to consumers with disabilities.

    Final Regulatory Flexibility Analysis

    44. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), the Commission incorporated an Initial Regulatory Flexibility Analyses (IRFA) into the NPRM. The Commission sought written public comment on the proposals in the NPRM, including comment on the IRFA. No comments were received on the IRFA.

    Need for, and Objectives of, the Report and Order

    45. In document FCC 16-169, the Commission takes specific steps to amend its rules to facilitate a transition from outdated TTY technology to a reliable and interoperable means of providing RTT communication over IP enabled networks and services for people who are deaf, hard of hearing, speech disabled, and deaf-blind. Real-time text is a mode of communication that permits text to be sent immediately as it is being created. In response to various proposals made in the NPRM adopted earlier this year, the Commission adopts rules to:

    • Permit CMRS providers to support RTT in lieu of TTY technology for communications using wireless IP-based voice services;

    • Allow providers of telecommunications and interconnected VoIP services provided over wireless IP facilities and manufacturers of equipment used with such services to support RTT in lieu of supporting TTY technology, “if readily achievable” or “unless not achievable”;

    • Relieve wireless service providers and equipment manufacturers of all TTY support obligations to the extent they support RTT on IP facilities in accordance with Commission rules;

    • Establish the following criteria defining what constitutes support for RTT:

    ○ RTT communications must be interoperable across networks and devices, and this may be achieved through adherence to RFC 4103, as a “safe harbor” standard for RTT;

    ○ RTT communications must be backward compatible with TTY technology;

    ○ RTT must support 911 communications and 711 relay communications; and

    • Establish that support for RTT includes support for the ability to initiate and receive calls with the same telephone numbers as are used for voice communications and simultaneous voice and text in the same call session;

    • Recognize that the provision of accessible indicators for call answering and activity, appropriate latency and error rates, and pre-installed and default functionality on devices can facilitate making RTT service functionally equivalent to voice communications;

    • Permit manufacturers and service providers, to the extent the latter are responsible for the accessibility of end user devices activated on their IP-based wireless voice communications networks, to ensure that devices that have the ability to send, receive, and display text include RTT capability in lieu of supporting TTY technology, subject to the readily achievable and achievable limitations for parts 6, 7, and 14, as applicable;

    • Find that RTT is an “electronic messaging service” that is subject to the performance objectives of parts 6, 7, and 14 of the Commission's rules, if readily achievable or unless not achievable, as applicable.

    • Establish the following timelines for implementation of RTT:

    ○ By December 31, 2017, each Tier I CMRS provider and, by June 30, 2020, each non-Tier I provider choosing to support RTT in lieu of TTY over IP facilities shall support RTT either (1) through a downloadable RTT application or plug-in that supports RTT; or (2) by implementing native RTT functionality into its core network, offering at least one handset model that supports RTT, and including the requirement to support RTT in future design specifications for all authorized user devices specified on or after these dates;

    ○ By December 31, 2018, manufacturers that provide devices for CMRS providers' IP-based voice services and that choose to support RTT in lieu of TTY technology shall implement RTT in newly manufactured equipment, if readily achievable or unless not achievable, as applicable.

    ○ By December 31, 2019, each Tier I CMRS provider and, by June 30, 2021, each non-Tier I CMRS provider choosing to support RTT in lieu of TTY over IP facilities shall support RTT for all new authorized user devices;

    ○ A carrier is subject to the above timelines except to the extent that it is not achievable for a particular manufacturer to support RTT on that carrier's network, in which case a carrier may rely in good faith on a manufacturer's representations in this regard; and

    • Establish consumer outreach, education, and notice guidelines to inform the public about the transition from TTY Technology to RTT, including how this technology will work.

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

    46. No comments were filed in response to the IRFA.

    Listing of the Number of Small Entities Impacted

    47. The majority of the rules adopted in document FCC 16-169 will affect obligations on telecommunications carriers and providers, VoIP service providers, wireline and wireless service providers, advanced communications services (ACS) providers, and telecommunications equipment and software manufacturers. Other entities, however, that choose to object to the substitution of RTT for TTY technology under the Commission's amended rules may be economically impacted by document FCC 16-169. Affected small entities as defined by industry are as follows.

    Wired Telecommunications Carriers;

    Local Exchange Carriers (LECs);

    Incumbent Local Exchange Carriers (Incumbent LECs);

    Competitive Local Exchange Carriers (Competitive LECs), Competitive Access Providers (CAPs), Shared-Tenant Service Providers, and Other Local Service Providers;

    Interexchange Carriers;

    Other Toll Carriers;

    Wireless Telecommunications Carriers (except Satellite);

    Cable Companies and Systems (Rate Regulation);

    All Other Telecommunications;

    TRS Providers;

    Electronic Computer Manufacturing;

    Telephone Apparatus Manufacturing (wireline);

    Computer Terminal and Other Computer Peripheral Equipment Manufacturing;

    Radio and Television Broadcasting and Wireless Communications Equipment Manufacturing;

    Other Communications Equipment Manufacturing; and

    Software Publishers.

    Description of Projected Reporting, Record Keeping and Other Compliance Requirements

    48. The rule changes adopted in document FCC 16-169 to permit support for RTT in lieu of TTY Technologies in all IP-based wireless services do not modify reporting, recordkeeping, and other compliance requirements. However, document FCC 16-169 requires that notice conditions imposed on waiver recipients remain in effect until the full implementation of the rules adopted in document FCC 16-169. The waiver recipients must continue to apprise their customers, through effective and accessible channels of communication, that (1) until TTY is sunset, TTY technology will not be supported for calls to 911 services over IP-based wireless services, and (2) there are alternative public switched telephone network (PSTN)-based and IP-based accessibility solutions for people with communication disabilities to reach 911 services. These notices must be developed in coordination with PSAPs and national consumer organizations, and include a listing of text-based alternatives to 911, including, but not limited to, TTY capability over the PSTN, various forms of PSTN-based and IP-based TRS, and text-to-911 (where available). The waiver recipients must also file a report every six months regarding their progress toward and the status of the availability of new IP-based accessibility solutions, such as RTT. The only entities that will be affected by this requirement are those entities that have previously petitioned for and received or will receive a waiver of the TTY obligations. The Commission believes the only burden associated with the reporting requirement will be the time required to continue to prepare and send out notifications to customers and to complete the progress and status report every six months.

    Steps Taken To Minimize Significant Impact on Small Entities and Significant Alternatives Considered

    49. In amending its rules, the Commission believes that it has minimized the effect on small entities while facilitating an effective and seamless transition from TTY technology to RTT. The Commission had considered other possible proposals and sought comment on the requirements and the analysis presented. The requirements adopted by the Commission to provide notices to customers and file reports with the Commission apply only to entities that have specifically sought waivers of the TTY obligations. Further, RTT technology may simplify the accessibility obligations of small businesses, because RTT allows calls to be made using the built-in functionality of a wide selection of off-the shelf devices such as cellphones, and thus may alleviate the high costs and challenges faced by small businesses and customers in locating dedicated external assistive devices, such as specialty phones. Additionally, in phasing out TTY technology, the burden is reduced for small entities and emergency call centers to maintain such technology in the long term.

    50. The Commission also establishes a phased timeline for implementation of RTT technology. In response to comments in the proceeding and to reduce the burden and relieve possible adverse economic impact on small entities, by December 31, 2017, each Tier I CMRS provider and, by June 30, 2020, each non-Tier I provider may choose to support RTT in lieu of TTY over IP facilities. The Commission establishes a second period for each Tier I CMRS provider and non-Tier I CMRS provider choosing to support RTT in lieu of TTY over IP facilities to be required to support RTT for all new authorized user devices. Tier I CMRS providers must meet this requirement by December 31, 2019, and non-Tier I providers must meet this requirement by June 30, 2021. Manufacturers that provide devices for CMRS providers' IP-based voice services and that choose to support RTT in lieu of TTY technology shall implement RTT in newly manufactured equipment by December 31, 2018, if readily achievable or unless not achievable, as applicable.

    51. In addition, the Commission is permitting rather than requiring service providers to support RTT. With regards to implementing RTT, while the Commission adopts a “safe harbor” technical standard to ensure RTT interoperability, it also allows service providers to use alternative protocols for RTT, provided that they are interoperable. Further, throughout the item, flexibility is integrated into the criteria for RTT support in order to take into consideration the limitations of small businesses. For example, a service provider choosing to support RTT rather than TTY is not required to support RTT on new authorized end user devices to the extent that is not achievable for a particular manufacturer to support RTT on that provider's network. As such, the Commission anticipates that the requirements will have little to no impact on small entities that are eligible to rely on the claim that supporting RTT on a particular device is not achievable.

    52. The Commission also determined to establish outreach and education guidelines to encourage rather than require service providers and manufacturers to implement efforts to notify consumers about the transition from TTY technology to RTT, and to allow small entities to determine the extent of resources they allocate to inform consumers of the changes in the services and associated equipment they will be receiving.

    Ordering Clauses

    53. Pursuant to sections 4(i), 225, 255, 301, 303(r), 316, 403, 715, and 716 of the Communications Act of 1934, as amended, and section 106 of the CVAA, 47 U.S.C. 154(i), 225, 255, 301, 303(r), 316, 403, 615c, 616, 617, document FCC 16-169 IS ADOPTED and parts 6, 7, 14, 20, and 64 of the Commission's rules ARE AMENDED and part 67 IS ADOPTED.

    54. The Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, SHALL SEND a copy of document FCC 16-169, including the Final Regulatory Flexibility Analysis to the Chief Counsel for Advocacy of the Small Business Administration.

    List of Subjects 47 CFR Part 6

    Individuals with disabilities, access to telecommunication service and equipment, and customer premise equipment.

    47 CFR Part 7

    Individuals with disabilities, access to voice mail and interactive menu services and equipment.

    47 CFR Part 14

    Individuals with disabilities, access to advanced communication services and equipment.

    47 CFR Part 20

    Commercial mobile services, individuals with disabilities, access to 911 services.

    47 CFR Part 64

    Telecommunications relay services, individuals with disabilities.

    47 CFR Part 67

    Real-time text, individuals with disabilities, incorporation by reference.

    Federal Communications Commission. Katura Howard, Federal Register Liaison, Office of the Secretary.

    For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR parts 6, 7, 14, 20, 64, and adds 67 as follows:

    PART 6—ACCESS TO TELECOMMUNICATIONS SERVICE, TELECOMMUNICATIONS EQUIPMENT AND CUSTOMER PREMISES EQUIPMENT BY PERSONS WITH DISABILITIES 1. The authority citation for part 6 is revised to read as follows: Authority:

    47 U.S.C. 151-154, 208, 255, and 303(r).

    2. Amend § 6.3 by adding paragraphs (a)(3), (b)(5), (m), and (n) to read as follows:
    § 6.3 Definitions.

    (a) * * *

    (3) Real-Time Text. Voice communication services subject to this part that are provided over wireless IP facilities and handsets and other text-capable end user devices used with such service that do not themselves provide TTY functionality, may provide TTY connectability and signal compatibility pursuant to paragraphs (b)(3) and (4) of this section, or support real-time text communications, in accordance with 47 CFR part 67.

    (b) * * *

    (5) TTY Support Exemption. Voice communication services subject to this part that are provided over wireless IP facilities and equipment used with such services are not required to provide TTY connectability and TTY signal compatibility if such services and equipment support real-time text, in accordance with 47 CFR part 67.

    (m) The term real-time text shall have the meaning set forth in § 67.1 of this chapter.

    (n) The term text-capable end user device means customer premises equipment that is able to send, receive, and display text.

    PART 7—ACCESS TO VOICEMAIL AND INTERACTIVE MENU SERVICES AND EQUIPMENT BY PEOPLE WITH DISABILITIES 3. The authority citation for part 7 is revised to read as follows: Authority:

    47 U.S.C. 151-154, 208, 255, and 303(r).

    4. Amend § 7.3 by adding paragraphs (a)(3), (b)(5), (n), and (o) to read as follows:
    § 7.3 Definitions.

    (a) * * *

    (3) Real-Time Text. Voice communication services subject to this part that are provided over wireless IP facilities and handsets and other text-capable end user devices used with such service that do not themselves provide TTY functionality, may provide TTY connectability and signal compatibility pursuant to paragraphs (b)(3) and (4) of this section, or support real-time text communications, in accordance with 47 CFR part 67.

    (b) * * *

    (5) TTY Support Exemption. Voice communication services subject to this part that are offered over wireless IP facilities and equipment used with such services are not required to provide TTY connectability and TTY signal compatibility if such services and equipment support real-time text, in accordance with 47 CFR part 67.

    (n) The term real-time text shall have the meaning set forth in § 67.1 of this chapter.

    (o) The term text-capable end user device means customer premises equipment that is able to send, receive, and display text.

    PART 14—ACCESS TO ADVANCED COMMUNICATIONS SERVICES AND EQUIPMENT BY PEOPLE WITH DISABILITIES 5. The authority citation for part 14 continues to read as follows: Authority:

    47 U.S.C. 151-154, 255, 303, 403, 503, 617, 618, 619 unless otherwise noted.

    6. Amend § 14.10 by adding paragraphs (w) and (x) to read as follows:
    § 14.10 Definitions.

    (w) The term real-time text shall have the meaning set forth in § 67.1 of this chapter.

    (x) The term text-capable end user device means end user equipment that is able to send, receive, and display text.

    7. Amend § 14.21 by adding paragraphs (b)(3) and (d)(5) to read as follows:
    § 14.21 Performance Objectives.

    (b) * * *

    (3) Real-Time Text. Wireless interconnected VoIP services subject to this part and text-capable end user devices used with such services that do not themselves provide TTY functionality, may provide TTY connectability and signal compatibility pursuant to paragraphs (b)(3) and (4) of this section, or support real-time text communications, in accordance with 47 CFR part 67.

    (d) * * *

    (5) TTY Support Exemption. Interconnected and non-interconnected VoIP services subject to this part that are provided over wireless IP facilities and equipment are not required to provide TTY connectability and TTY signal compatibility if such services and equipment support real-time text, in accordance with 47 CFR part 67.

    PART 20—COMMERCIAL MOBILE SERVICES 8. The authority citation for part 20 continues to read as follows: Authority:

    47 U.S.C. 151, 152(a), 154(i), 157, 160, 201, 214, 222, 251(e), 301, 302, 303, 303(b), 303(r), 307, 307(a), 309, 309(j)(3), 316, 316(a), 332, 615, 615a, 615b, 615c.

    9. Amend § 20.18 by revising paragraph (c) to read as follows:
    § 20.18 911 Service.

    (c) Access to 911 services. CMRS providers subject to this section must be capable of transmitting 911 calls from individuals with speech or hearing disabilities through means other than mobile radio handsets, e.g., through the use of Text Telephone Devices (TTY). CMRS providers that provide voice communications over IP facilities are not required to support 911 access via TTYs if they provide 911 access via real-time text (RTT) communications, in accordance with 47 CFR part 67, except that RTT support is not required to the extent that it is not achievable for a particular manufacturer to support RTT on the provider's network.

    PART 64—MISCELLANEOUS RULES RELATING TO COMMON CARRIERS 10. The authority citation for part 64 is revised to read as follows: Authority:

    47 U.S.C. 154, 225, 403(b)(2)(B), (c), 715, Pub. L. 104-104, 110 Stat. 56. Interpret or apply 47 U.S.C. 201, 218, 222, 225, 226, 227, 228, 254(k), 616, 620, and the Middle Class Tax Relief and Job Creation Act of 2012, Pub. L. 112-96, unless otherwise noted.

    11. Amend § 64.601 by revising paragraph (a)(15) and adding paragraph (a)(46) to read as follows:
    § 64.601 Definitions and provisions of general applicability.

    (a) * * *

    (15) Internet-based TRS (iTRS). A telecommunications relay service (TRS) in which an individual with a hearing or a speech disability connects to a TRS communications assistant using an Internet Protocol-enabled device via the Internet, rather than the public switched telephone network. Except as authorized or required by the Commission, Internet-based TRS does not include the use of a text telephone (TTY) or RTT over an interconnected voice over Internet Protocol service.

    (46) Real-Time Text (RTT). The term real-time text shall have the meaning set forth in § 67.1 of this chapter.

    12. Revise § 64.603 to read as follows:
    § 64.603 Provision of services.

    (a) Each common carrier providing telephone voice transmission services shall provide, in compliance with the regulations prescribed herein, throughout the area in which it offers services, telecommunications relay services, individually, through designees, through a competitively selected vendor, or in concert with other carriers. Interstate Spanish language relay service shall be provided. Speech-to-speech relay service also shall be provided, except that speech-to-speech relay service need not be provided by IP Relay providers, VRS providers, captioned telephone relay service providers, and IP CTS providers. In addition, each common carrier providing telephone voice transmission services shall provide access via the 711 dialing code to all relay services as a toll free call. CMRS providers subject to this 711 access requirement are not required to provide 711 dialing code access to TTY users if they provide 711 dialing code access via real-time text communications, in accordance with 47 CFR part 67.

    (b) A common carrier shall be considered to be in compliance with this section:

    (1) With respect to intrastate telecommunications relay services in any state that does not have a certified program under § 64.606 and with respect to interstate telecommunications relay services, if such common carrier (or other entity through which the carrier is providing such relay services) is in compliance with § 64.604; or

    (2) With respect to intrastate telecommunications relay services in any state that has a certified program under § 64.606 for such state, if such common carrier (or other entity through which the carrier is providing such relay services) is in compliance with the program certified under § 64.606 for such state.

    PART 67—REAL-TIME TEXT 13. Add new part 67 to read as follows: PART 67—REAL-TIME TEXT Sec. 67.1 Definitions. 67.2 Minimum Functionalities of RTT. 67.3 Incorporation by Reference. Authority:

    47 U.S.C. 151-154, 225, 251, 255, 301, 303, 307, 309, 316, 615c, 616, 617.

    § 67.1 Definitions.

    (a) Authorized end user device means a handset or other end user device that is authorized by the provider of a covered service for use with that service and is able to send, receive, and display text.

    (b) CMRS provider means a CMRS provider as defined in § 20.18(c) of this chapter.

    (c) Covered service means a service that meets accessibility requirements by supporting RTT pursuant to part 6, 7, 14, 20, or 64 of this chapter.

    (d) RFC 4103 means IETF's Request for Comments (RFC) 4103 (incorporated by reference, see § 67.3 of this part).

    (e) RFC 4103-conforming service or user device means a covered service or authorized end user device that enables initiation, sending, transmission, reception, and display of RTT communications in conformity with RFC 4103.

    (f) RFC 4103-TTY gateway means a gateway that is able to reliably and accurately transcode communications between (1) RFC 4103-conforming services and devices and (2) circuit-switched networks that support communications between TTYs.

    (g) Real-time text (RTT) or RTT communications means text communications that are transmitted over Internet Protocol (IP) networks immediately as they are created, e.g., on a character-by-character basis.

    (h) Support RTT or support RTT communications means to enable users to initiate, send, transmit, receive, and display RTT communications in accordance with the applicable provisions of this part.

    § 67.2 Minimum Functionalities of RTT.

    (a) RTT-RTT Interoperability. Covered services and authorized end user devices shall be interoperable with other services and devices that support RTT in accordance with this part. A service or authorized end user device shall be deemed to comply with this paragraph (a) if:

    (1) It is an RFC 4103-conforming end user device;

    (2) RTT communications between such service or end user device and an RFC 4103-conforming service or end user device are reliably and accurately transcoded—

    (i) to and from RFC 4103, or

    (ii) to and from an internetworking protocol mutually agreed-upon with the owner of the network serving the RFC 4103-conforming service or device.

    (b) RTT-TTY Interoperability. Covered services and authorized end user devices shall be interoperable with TTYs connected to other networks. Covered services and authorized end user devices shall be deemed to comply with this paragraph (b) if communications to and from such TTYs:

    (1) Pass through an RFC 4103-TTY gateway, or

    (2) are reliably and accurately transcoded to and from an internetworking protocol mutually agreed-upon with the owner of the network serving the TTY.

    (c) Features and Capabilities. Covered services and authorized end user devices shall enable the user to:

    (1) Initiate and receive RTT calls to and from the same telephone numbers for which voice calls can be initiated and received;

    (2) transmit and receive RTT communications to and from any 911 public safety answering point (PSAP) in the United States; and

    (3) send and receive text and voice simultaneously in both directions on the same call using a single device.

    § 67.3 Incorporation by Reference.

    (a) Certain material is incorporated by reference into this part with the approval of the Director of the Federal Register under 5 U.S.C. 552(a) and 1 CFR part 51. All approved material is available for inspection at the Federal Communications Commission, 445 12th St. SW., Reference Information Center, Room CY-A257, Washington, DC 20554, (202) 418-0270, and is available from the sources listed below. It is also available for inspection 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/code_of_federal_regulations/ibr_locations.html.

    (b) Internet Engineering Task Force (IETF), c/o Association Management Solutions, LLC (AMS) 5177 Brandin Court, Fremont, California 94538, phone (510) 492-4080, Web site at http://ietf.org or directly at https://www.ietf.org/rfc/rfc4103.txt.

    (1) Request for Comments (RFC) 4103, Real-time Transport Protocol Payload for Text Conversation (2005), IBR approved for § 67.1.

    (2) [Reserved]

    [FR Doc. 2017-01377 Filed 1-19-17; 8:45 am] BILLING CODE 6712-01-P
    DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Parts 13 and 22 [Docket No. FWS-R9-MB-2011-0094; FF09M20300-167-FXMB123109EAGLE] RIN 1018-AY30 Eagle Permits; Revisions to Regulations for Eagle Incidental Take and Take of Eagle Nests AGENCY:

    Fish and Wildlife Service, Interior.

    ACTION:

    Final rule; information collection requirements.

    SUMMARY:

    We, the U.S. Fish and Wildlife Service (Service), recently published a final rule that revises the regulations for eagle nonpurposeful take permits and eagle nest take permits. In that final rule, we stated that the Office of Management (OMB) had not yet approved the information collection requirements associated with the rule. This document announces that OMB has now approved the information collection requirements.

    DATES:

    OMB approved the information collection requirements on January 6, 2017, for the final rule that published at 81 FR 91494 on December 16, 2016.

    ADDRESSES:

    Relevant information and documents related to the eagle permit rule may be found on the internet at http://www.regulations.gov in Docket No. FWS-R9-MB-2011-0094. You may review the information collection request online at http://www.reginfo.gov. Follow the instructions to review Department of the Interior collections.

    FOR FURTHER INFORMATION CONTACT:

    Tina Campbell, Chief, Division of Policy, Performance, and Management Programs; 703-358-2676.

    SUPPLEMENTARY INFORMATION:

    Background

    We, the U.S. Fish and Wildlife Service (Service), published a final rule in the December 16, 2016, Federal Register (81 FR 91494) that revises the regulations in part 22 of title 50 of the Code of Federal Regulations (CFR) for eagle nonpurposeful take permits and eagle nest take permits. Revisions included changes to permit issuance criteria and duration, definitions, compensatory mitigation standards, criteria for eagle nest removal permits, permit application requirements, and fees. In the final rule, we stated that the Office of Management (OMB) had not yet approved the information collection requirements associated with the rule. We also stated that we would announce the approval via a separate notification in the Federal Register. This document provides that notification.

    The following text sets forth the information collection requirements approved by OMB:

    Title: Eagle Take Permits and Fees, 50 CFR part 22.

    OMB Control Number: 1018-0167.

    Service Form Number(s): 3-200-71, 3-200-72.

    Description of Respondents: Individuals and businesses. We expect that the majority of applicants seeking long-term permits will be in the energy production and electrical distribution business.

    Respondent's Obligation: Required to obtain or retain a benefit.

    Frequency of Collection: On occasion.

    Table 1 cites the total burden for this information collection. Table 2 sets forth the changes in nonhour burden fees for eagle take permits.

    Table 1—Estimated Hour and Cost Burden for Long-Term Eagle Take Permits Activity/requirement Annual
  • number
  • of responses
  • Average
  • completion time
  • per response
  • (hours)
  • Total annual burden
  • (hours)
  • Cost/hour $ Value of
  • annual
  • burden hours
  • (rounded)
  • Preconstruction Monitoring Surveys 15 650 9,750 $34.26 $334,035 Preparation of Eagle Conservation Plan 15 200 3,000 34.26 102,780 Postconstruction Monitoring 15 700 10,500 34.26 359,730 Reporting Take of Eagles 10 2 20 34.26 685 Reporting Take of Threatened and Endangered Species 1 2 2 34.26 69 § 22.26(c)(7)(ii)—Permit reviews. At no more than 5 years from the date a permit that exceeds 5 years is issued, and every 5 years thereafter, the permittee compiles and submits to the Service, eagle fatality data or other pertinent information that is site-specific for the project.8 (Footnote 8 may be found below table 2. Note that the dollar value of the annual burden cost is included in the $8,000 permit 5-year permit review fee.) 4 8 32 34.26 1,096 Total 60 1,562 23,304 798,395
    Table 2—Changes in Nonhour Burden Fees for Eagle Take Permits Activity/requirement Previous approval under
  • OMB Control No. 1018-0022
  • Previous fee New fee Total previously approved nonhour burden costs Total new approved nonhour burden costs Difference between
  • previous 1018-0022 approval and new approval
  • 3-200-71—application, Eagle Incidental Take (not programmatic or long-term) 1 Approval covered number of responses and annual burden hours. The rule revises fees and nonhour costs $500 Non-commercial
  • $500 Commercial
  • $500 Non-commercial
  • $2,500 Commercial
  • $12,500 Non-commercial
  • $60,000 Commercial
  • $12,500 Non-commercial
  • $300,000 Commercial
  • $0 Non-commercial.
  • +$240,000 Commercial.
  • 3-200-72—application, Eagle Nest Take-single nest (formerly “standard”) 2 Approval covered number of responses and annual burden hours. The rule revises fees and nonhour costs $500 Non-commercial
  • $500 Commercial
  • $500 Non-commercial
  • $2,500 Commercial
  • $5,000 Non-commercial
  • $10,000 Commercial
  • $5,000 Non-commercial
  • $50,000 Commercial
  • $0 Non-commercial.
  • +$40,000 Commercial.
  • 3-200-72—application, Eagle Nest Take-multiple nests (formerly “programmatic”) 3 Approval covered number of responses and annual burden hours. The rule revises fees and nonhour costs $1,000 $500 Non-commercial
  • $5,000 Commercial
  • $0 3 $500 Non-commercial
  • $40,000 Commercial
  • +$500 Non-commercial.
  • +$40,000 Commercial.
  • 3-200-71—Eagle Incidental Take Amendment-less than 5 years (formerly “standard”) 4 Approval covered number of responses and annual burden hours. The rule revises fees and nonhour costs $150 Non-commercial
  • $150 Commercial
  • $150 Non-commercial
  • $500 Commercial
  • $300 Non-commercial
  • $2,700 5 Commercial
  • $300 Non-commercial
  • $9,000 Commercial
  • $0 Non-commercial.
  • +$6,300 Commercial.
  • 3-200-72—Eagle Nest Take Amendment-single nest (formerly “standard”) 4 Approval covered number of responses and annual burden hours. The rule revises fees and nonhour costs $150 Non-commercial
  • $150 Commercial
  • $150 Non-commercial
  • $500 Commercial
  • $150 Non-commercial
  • $600 6 Commercial
  • $150 Non-commercial
  • $2,000 Commercial
  • $0 Non-commercial.
  • +$1,400 Commercial.
  • 3-200-71—Amendment-Eagle Incidental Take-programmatic Approval covered number of responses and annual burden hours $1,000 Commercial No Fee 7 $1,000 Commercial - $1,000 Commercial. NEW REPORTING REQUIREMENT AND NEW ADMINISTRATION FEE § 22.26(c)(7)(ii)—Permit reviews. At no more than 5 years from the date a permit that exceeds 5 years is issued, and every 5 years thereafter, the permittee compiles and submits to the Service eagle fatality data or other pertinent information that is site-specific for the project.8 0 $8,000 0 $32,000 +$32,000. Total $92,250 $431,450 $359,200. 1 Approved under 1018-0022: 145 annual responses (25 from individuals/households (homeowners) and 120 from the private sector (commercial), totaling 2,320 annual burden hours) (400 burden hours for individuals and 1,920 annual burden hours for private sector); $500 permit fee for both individuals and private sector for a total nonhour burden cost of $72,500. The rule changes the application fees: Homeowner fee remains $500; private sector fee (commercial) increases to $2,500. Total for 25 homeowners = $12,500; total for 125 commercial applicants = $300,000. 2 Approved under 1018-0022 (standard and programmatic permits were combined): 30 responses (10 from individuals/homeowners and 20 from private sector (commercial), totaling 480 burden hours) (160 hours (individuals) and 320 hours (private sector)). Homeowner fee remains $500; private sector fee (commercial) increases to $2,500. Total for 10 homeowners = $5,000.; total for 20 commercial applicants = $50,000. 3 Approved under 1018-0022 (standard and programmatic permits were combined): 9 responses (1 from individuals/homeowners (noncommercial) and 8 from private sector (commercial), totaling 360 burden hours) (40 hours (individuals) and 320 hours (private sector)). The homeowner fee increases to $500; private sector fee (commercial) increases to $5,000. Total for 1 homeowner = $500; total for 8 commercial = $40,000. 4 The amendments for standard nonpurposeful eagle take permits and standard eagle nest take permits are combined in the approved collection for a total of 25. Here they are split into 20 eagle incidental take permit amendments and 5 eagle nest take permit amendments. 5 Two homeowner; 18 commercial. 6 One homeowner; four commercial. 7 The amendment fee for long-term programmatic permits was approved under 1018-0022. However, the rule removes this fee because the costs associated with it are included under the administration fee. 8 This is a new reporting requirement as well as a new administration fee and applies only to commercial permittees. We will not receive any reports or assess the administration fee until after a permittee has had a permit for 5 years (earliest probably 2022). We estimate that we will receive 19 responses every 5 years, which, annualized over the 3-year period of OMB approval, results in 4 responses annually. We estimate that each response will take 8 hours, for a total of 32 annual burden hours. We will assess an $8,000 administration fee for each permittee for a total of $32,000. Note: This burden reflects what will be imposed in 5 years. Each 5 years thereafter, the burden and nonhour costs will increase because of the number of permittees holding 5-year or longer term permits.

    Estimated Total Hour Burden: 23,304 hours; the total number of new respondents is 60.

    Estimated Total Hour Burden Cost: $798,395 for gathering information required to support an application, which may include preparation of an Eagle Conservation Plan (ECP). This amount includes 650 hours for preconstruction monitoring surveys of eagle use of the project site and 700 hours of postconstruction monitoring for each respondent. Preparation of the application, which may include preparation of an ECP, will take approximately 200 hours per respondent. These burden hours apply only to those seeking a long-term eagle take permit. In addition, those that receive a permit are required to report take of eagles and threatened or endangered species within 48 hours of discovery of the take. It is estimated that of the 15 projects permitted to take eagles each year, 10 will actually take eagles, requiring 2 hours per respondent to report. Take of threatened or endangered species is expected to be a rare event, and occur at only 1 of the 15 projects permitted each year, requiring only 2 hours to report. The burden hours also include the costs for the 5-year permit review. We estimate 8 hours per respondent to complete the requirements of the permit review for a total of 32 hours.

    Estimated New Total Nonhour Burden Cost: $359,200 for administration fees and application fees associated with changes implemented by this rule. This amount does not include the nonhour cost burden for eagle or eagle nest take permits approved under OMB Control No. 1018-0022. States, local governments, and tribal governments are exempt from paying these fees.

    An agency may not conduct or sponsor and you are not required to respond to a collection of information unless it displays a currently valid OMB control number.

    Dated: January 12, 2017. Michael J. Bean, Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
    [FR Doc. 2017-01284 Filed 1-19-17; 8:45 am] BILLING CODE 4333-15-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Parts 223, 224, and 226 [Docket No. 160524463-7001-02] RIN 0648-XE657 Endangered and Threatened Species; Removal of the Puget Sound/Georgia Basin Distinct Population Segment of Canary Rockfish From the Federal List of Threatened and Endangered Species and Removal of Designated Critical Habitat, and Update and Amendment to the Listing Descriptions for the Yelloweye Rockfish DPS and Bocaccio DPS AGENCY:

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

    ACTION:

    Final rule.

    SUMMARY:

    We, NMFS, are issuing a final rule to remove the Puget Sound/Georgia Basin canary rockfish (Sebastes pinniger) Distinct Population Segment (DPS) from the Federal List of Threatened and Endangered Species and remove its critical habitat designation. We proposed these actions based on newly obtained samples and genetic analysis that demonstrates that the Puget Sound/Georgia Basin canary rockfish population does not meet the DPS criteria and therefore does not qualify for listing under the Endangered Species Act (ESA). Following public and peer review of the proposed rule and supporting scientific information, this final rule implements the changes to the listing and critical habitat for canary rockfish.

    We also update and amend the listing description for the Puget Sound/Georgia Basin yelloweye rockfish (S. ruberrimus) DPS based on a geographic description to include fish within specified boundaries. Further, although the current listing description is not based on boundaries, with this final rule we are also correcting a descriptive boundary for the DPS depicted on maps to include an area in the northern Johnstone Strait and Queen Charlotte Channel in waters of Canada consistent with newly obtained genetic information on yelloweye rockfish population grouping.

    We also update and amend the listing description for the bocaccio DPS based on a geographic description and to include fish within specified boundaries.

    DATES:

    This final rule is effective on March 24, 2017.

    FOR FURTHER INFORMATION CONTACT:

    Dan Tonnes, NMFS, West Coast Region, Protected Resources Division, 206-526-4643; or Chelsey Young, NMFS, Office of Protected Resources, 301-427-8491.

    SUPPLEMENTARY INFORMATION:

    Background

    On April 9, 2007, we received a petition from Mr. Sam Wright (Olympia, Washington) to list DPSs of five rockfish species (yelloweye, canary, bocaccio, greenstriped and redstripe) in Puget Sound, as endangered or threatened species under the ESA and to designate critical habitat. We found that this petition did not present substantial scientific or commercial information to suggest that the petitioned actions may be warranted (72 FR 56986; October 5, 2007). On October 29, 2007, we received a letter from Mr. Wright presenting information that was not included in the April 2007 petition, and requesting reconsideration of the decision not to initiate a review of the species' status. We considered the supplemental information as a new petition and concluded that there was enough information in this new petition to warrant conducting status reviews of these five rockfish species. The status review was initiated on March 17, 2008 (73 FR 14195) and completed in 2010 (Drake et al., 2010).

    In the 2010 status review, the Biological Review Team (BRT) used the best scientific and commercial data available at that time, including environmental and ecological features of the Puget Sound/Georgia Basin, but noted that the limited genetic and demographic data for the five petitioned rockfish species populations created some uncertainty in the DPS determinations (Drake et al., 2010). The BRT assessed genetic data from the Strait of Georgia (inside waters of eastern Vancouver Island) for yelloweye rockfish (Yamanaka et al., 2006) that indicated a distinct genetic cluster that differed consistently from coastal samples of yelloweye rockfish, but also observed that genetic data from Puget Sound were not available for this species. The BRT also noted there was genetic information for canary rockfish (Wishard et al., 1980) and bocaccio (Matala et al., 2004, Field et al., 2009) in coastal waters, but no genetic data for either species from inland Puget Sound waters. The BRT found that in spite of these data limitations there was other evidence to conclude that each noted population of rockfish within inland waters of the Puget Sound/Georgia Basin was discrete from its coastal counterpart.

    Specifically, the BRT noted similar life histories of rockfish and based their determinations, in part, on the status review of brown rockfish, copper rockfish, and quillback rockfish (Stout et al., 2001) and the genetic information for those species that supported separate DPSs for inland compared to coastal populations (Drake et al., 2010). Thus, based on information related to rockfish life history, genetic variation among populations, and the environmental and ecological features of Puget Sound and the Georgia Basin, the BRT identified Puget Sound/Georgia Basin DPSs for yelloweye rockfish, canary rockfish, and bocaccio, and a Puget Sound proper DPS for greenstriped rockfish and redstripe rockfish (Drake et al., 2010).

    Informed by the BRT recommendations and our interpretation of best available scientific and commercial data, on April 28, 2010, we listed the Puget Sound/Georgia Basin DPSs of yelloweye rockfish and canary rockfish as threatened under the ESA, and the Puget Sound/Georgia Basin DPS of bocaccio as endangered (75 FR 22276). The final critical habitat rule for the listed DPSs of rockfishes was published in the Federal Register on November 1, 2014 (79 FR 68041). We determined that greenstriped rockfish (S. elongatus) and redstripe rockfish (S. proriger) within Puget Sound proper each qualified as a DPS, but these DPSs were not at risk of extinction throughout all or a significant portion of their ranges (Drake et al., 2010).

    In 2013, we appointed a recovery team and initiated recovery planning for the listed rockfish species. Through the process of recovery planning, priority research and recovery actions emerged. One such action was to seek specific genetic data for each of these rockfish species to better evaluate and determine whether differences exist in the genetic structure of the listed species' populations between inland basins where the DPSs occur and the outer coast. Analysis of the geographical distribution of genetic variation is a powerful method of identifying discrete populations (Drake et al., 2010); thus, genetic analysis provides useful information to address the uncertainties associated with the limited information that informed our initial discreteness determinations for yelloweye rockfish, canary rockfish and bocaccio.

    In 2014 and 2015, we partnered with the Washington Department of Fish and Wildlife (WDFW), several local fishing guides, and Puget Sound Anglers to collect samples between the different basins of the Puget Sound/Georgia Basin DPSs area and the outer coast. We collected biological samples for genetic analysis several ways. Over the course of 74 fishing trips, biological samples were gathered from listed rockfishes using hook-and-line recreational fishing methods in Puget Sound and the Strait of Juan de Fuca. Additional samples were gathered from archived sources from Fisheries and Oceans Canada, the NMFS Southwest Fisheries Science Center's Fisheries Resource Division, and the NMFS Northwest Fisheries Science Center's West Coast groundfish bottom trawl survey.

    Samples collected from these sources were used to examine the population structure for each species. Population structure was examined using three methods: Principal components analysis (PCA), calculation of FST (fixation index—which is a measure of population differentiation) among geographic groups, and a population genetics based model clustering analysis (termed STRUCTURE) (NMFS 2016a).

    In 2015, we announced a 5-year review (80 FR 6695; February 6, 2015) for the three rockfish DPSs. The 5-year review was completed on May 5, 2016 (NMFS 2016a), and is available at: http://www.westcoast.fisheries.noaa.gov/publications/protected_species/other/rockfish/5.5.2016_5yr_review_report_rockfish.pdf. To complete the review, we collected, evaluated, and incorporated all information on the species that has become available since April 2010, the date of the listing, including the 2014 final critical habitat designation and newly obtained samples and analysis of genetic information (Ford 2015, NMFS 2016a).

    NMFS' Puget Sound/Georgia Basin rockfish BRT reviewed the results from the new genetic information. Their recommendations (Ford 2015) informed and were further evaluated during the five-year review (NMFS 2016a) which confirmed the DPS identity and listing status for yelloweye rockfish and bocaccio but concluded that the canary rockfish of the Puget Sound/Georgia Basin do not meet the criteria to be considered a DPS.

    Policies for Delineating and Listing Species Under the ESA

    Under the ESA, the term “species” means a species, a subspecies, or a DPS of a vertebrate species (16 U.S.C. 1532(16)). A joint NMFS-USFWS policy clarifies the Services' interpretation of the phrase “Distinct Population Segment,” or DPS (61 FR 4722; February 7, 1996). The DPS Policy requires the consideration of two elements when evaluating whether a vertebrate population segment qualifies as a DPS under the ESA: (1) Discreteness of the population segment in relation to the remainder of the species/taxon; and, if discrete, (2) the significance of the population segment to the species/taxon to which it belongs. Thus, under the DPS policy a population segment is considered a DPS if it is both discrete from other populations within its taxon and significant to its taxon.

    A population may be considered discrete if it satisfies either one of the following conditions: (1) It is markedly separated from other populations of the same taxon as a consequence of physical, physiological, ecological, or behavioral factors; or (2) it is delimited by international governmental boundaries within which differences in control of exploitation, management of habitat, conservation status, or regulatory mechanisms exist that are significant in light of section 4(a)(1)(D) of the ESA (61 FR 4722; February 7, 1996). According to the policy, quantitative measures of genetic or morphological discontinuity can be used to provide evidence for item (1) above.

    Consideration of the significance of a discrete population may include, but is not limited to the following conditions: (1) Persistence of the discrete segment in an ecological setting unusual or unique for the taxon; (2) evidence that loss of the discrete segment would result in a significant gap in the range of the taxon; (3) evidence that the discrete segment represents the only surviving natural occurrence of a taxon that may be more abundant elsewhere as an introduced population outside its historical range; or (4) evidence that the discrete segment differs markedly from other populations of the species in its genetic characteristics.

    The ESA gives us clear authority to make listing determinations and to revise the Federal list of endangered and threatened species to reflect these determinations. Section 4(a)(1) of the ESA authorizes us to determine by regulation whether “any species,” which is defined to include species, subspecies, and DPSs, is an endangered species or a threatened species based on certain factors. Review of a species' status may be commenced at any time, either on the Services' own initiative—through a status review or in connection with a five-year review under Section 4(c)(2)—or in response to a petition. Because a DPS is not a scientifically recognized entity, but rather one created under the language of the ESA and effectuated through our DPS Policy (61 FR 4722; February 7, 1996), we have some discretion to determine whether populations of a species should be identified as DPSs, and, based upon their range and propensity for movement, what boundaries should be recognized for a DPS. Section 4(c)(1) of the ESA gives us authority to update the Federal list of threatened and endangered species to reflect these determinations. This can include revising the list to remove a species or reclassify the listed entity.

    Under sections 4(c)(1) and 4(a)(1) of the ESA the Secretary shall undertake a five-year review of a listed species and consider, among other things, whether a species' listing status should be continued. Pursuant to implementing regulations at 50 CFR 424.11(d), a species shall be removed from the list if the Secretary of Commerce determines, based on the best scientific and commercial data available after conducting a review of the species' status, that the species is no longer threatened or endangered because of one or a combination of the section 4(a)(1) factors. A species may be delisted only if such data substantiate that it is neither endangered nor threatened for one or more of the following reasons:

    (1) Extinction. Unless all individuals of the listed species had been previously identified and located, and were later found to be extirpated from their previous range, a sufficient period of time must be allowed before delisting to indicate clearly that the species is extinct.

    (2) Recovery. The principal goal of the Services is to return listed species to a point at which protection under the ESA is no longer required. A species may be delisted on the basis of recovery only if the best scientific and commercial data available indicate that it is no longer endangered or threatened.

    (3) Original data for classification in error. Subsequent investigations may show that the best scientific or commercial data available when the species was listed, or the interpretation of such data, were in error (50 CFR 424.11(d)).

    To make our final listing determinations, we reviewed all information provided during the 60-day public comment period on the proposed rule. Additionally we reviewed additional genetic analysis developed by the Northwest Fisheries Science Center (NWFSC) after the proposed rule (Andrews and Nichols 2016). This additional information supplemented, and supported, the information presented in the proposed rule. Where new information was received we have reviewed it and presented our evaluation in this final rule.

    Proposed Rule

    Informed by the BRT recommendations (Ford 2015), our interpretation of best available scientific and commercial data, and the conclusions of the five-year review, on July 6, 2016 we issued a proposed rule (81 FR 43979) to remove the Puget Sound/Georgia Basin canary rockfish (Sebastes pinniger) which included the following findings for each listed rockfish species.

    Yelloweye Rockfish

    Several different analytical methods indicated significant genetic differentiation between the inland and coastal samples of yelloweye rockfish at a level consistent with the limited genetic data for this species (Yamanaka et al., 2006) that were available at the time of the 2010 status review. The BRT concluded that this new genetic information represents the best available scientific and commercial data and are consistent with and confirm the existence of an inland population of Puget Sound/Georgia Basin yelloweye rockfish that is discrete from coastal yelloweye rockfish (Ford 2015, NMFS 2016a). In addition, this genetic information demonstrates that yelloweye rockfish from Hood Canal are genetically differentiated from other Puget Sound/Georgia Basin fish, indicating a previously unknown degree of population differentiation within the DPS (Ford 2015, NMFS 2016a).

    The BRT also found that new genetic information from Canada demonstrates that yelloweye rockfish occurring in the northern Johnstone Strait and Queen Charlotte Channel clustered genetically with yelloweye rockfish occurring in the northern Strait of Georgia, the San Juan Islands, and Puget Sound (Ford 2015). This is consistent with additional genetic analysis identifying a population of yelloweye rockfish inside the waters of eastern Vancouver Island (Yamanaka et. al. 2006, COSEWIC 2008, Yamanaka et al., 2012, Siegle et al., 2013). Based on this information and the five-year review, we proposed to correct the previous description of the northern boundary of the threatened Puget Sound/Georgia Basin yelloweye rockfish (S. ruberrimus) DPS to include this area. We also proposed to update and amend the description of the DPS as fish residing within certain boundaries (including this geographic area farther north in the Strait of Georgia waters in Canada). We proposed this change because this description better aligns with yelloweye rockfish life-history and their sedentary behavior as adults, rather than the current description of fish originating from the Puget Sound/Georgia Basin.

    In the five-year review, our analysis of the ESA section 4(a)(1) factors found that the collective risk to the persistence of the Puget Sound/Georgia Basin DPS of yelloweye rockfish has not changed significantly since our final listing determination in 2010 (75 FR 22276; April 28, 2010), and they remain listed as threatened (NMFS 2016a).

    Canary Rockfish

    The same analytical methods (described in Ford 2015, NMFS 2016a and Andrews and Nichols 2016) as used for yelloweye rockfish were used to analyze population structure in canary rockfish. These analyses indicate a lack of genetic differentiation of canary rockfish between coastal and inland Puget Sound/Georgia Basin samples. FST values, a metric of population differentiation, among groups were not significantly different from zero among geographic regions, and STRUCTURE analysis did not provide evidence supporting population structure in the data. None of these analyses provided any evidence of genetic differentiation between canary rockfish along the coast from the canary rockfish within the boundaries of the Puget Sound/Georgia Basin DPS (Ford 2015, NMFS 2016a, Andrews and Nichols 2016).

    The BRT noted that the very large number of loci provided considerable power to detect differentiation among sample groups and concluded that the lack of such differentiation indicated that it is unlikely the inland Puget Sound/Georgia Basin samples are discrete from coastal areas (Ford 2015). In the context of this newly obtained genetic information, the BRT considered whether other factors that supported the original discreteness determination, such as oceanography and ecological differences among locations, continue to support a finding of discreteness for this population (Ford 2015). In considering this newly obtained genetic data in the context of the other evidence, the BRT found that their original interpretation of the scientific data informing discreteness is no longer supported (Ford 2015). Rather, they concluded that the lack of genetic differentiation indicates sufficient dispersal to render a discreteness determination based on environmental factors implausible. The BRT found that current genetic data evaluated and interpreted in the context of all available scientific information now provides strong evidence that canary rockfish of the Puget Sound/Georgia Basin are not discrete from coastal area canary rockfish. Based on the BRT findings, the five-year review, and best available science and commercial information, and in accordance with the DPS policy, we determined that the canary rockfish of the Puget Sound/Georgia Basin did not meet the criteria to be considered a DPS. Rather, the new genetic data reveal that canary rockfish of the Puget Sound/Georgia Basin are part of the larger population occupying the Pacific coast (Ford 2015, NMFS 2016a, Andrews and Nichols 2016).

    Canary rockfish of the Pacific coast was declared overfished in 2000 and a rebuilding plan under the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) was put in place in 2001. NMFS determined the stock to be “rebuilt” in 2015 (Thorson and Wetzel 2015, NMFS 2016b).

    Based on the discussion above and the recommendation of the five-year review, we proposed to remove Puget Sound/Georgia Basin canary rockfish from the Federal List of Threatened and Endangered Species because the new genetic data evaluated and interpreted in the context of all best available science indicate they are not a discrete population (81 FR 43979; July 6, 2016). Under section 4(c)(1) of the ESA and the implementing regulations at 50 CFR 424.11(d)(3), we may delist canary rockfish if, among other things, subsequent investigation demonstrates that our interpretation of best scientific or commercial information was in error. After considering this newly obtained genetic data in the context of the other evidence supporting discreteness, we determined that our original interpretation of discreteness for Puget Sound/Georgia Basin canary rockfish is no longer supported and was in error. Based on this reasoning, there is no need for a post-delisting monitoring plan.

    Bocaccio

    Bocaccio were also evaluated by the BRT (Ford 2015) and during the five-year review (NMFS 2016a). Bocaccio are particularly rare within the DPS area and thus the NWFSC was only able to obtain three samples from within the DPS area for the genetic analysis. The BRT determined that this is not sufficient information to support a change to our prior status review and listing determination that Puget Sound/Georgia Basin bocaccio are discrete from coastal fish (Ford 2015).

    The BRT noted that bocaccio have a propensity for greater adult movement than more benthic rockfish species, similar to the case for canary rockfish. The BRT considered that the lack of genetic differentiation between coastal and Puget Sound/Georgia Basin canary rockfish might suggest a similar lack of genetic differentiation for bocaccio because of similarities in the life history of the two species. Nevertheless, the BRT concluded that the new information was not sufficient to change the conclusions of the previous BRT documented in Drake et al., (2010) or suggest a change in listing status (Ford 2015). This is consistent with the five-year review recommendation (NMFS 2016a) and is based upon best available scientific data and commercial information.

    However, similarly to yelloweye rockfish, we proposed to update and amend the listing description of the bocaccio DPS to describe boundaries to include fish residing within the Puget Sound/Georgia Basin rather than fish originating from the Puget Sound/Georgia Basin.

    In the five-year review, our analysis of the ESA section 4(a)(1) factors found that the collective risk to the persistence of the Puget Sound/Georgia Basin DPS of bocaccio has not changed significantly since our final listing determination in 2010 (75 FR 22276; April 28, 2010), and they remain listed as endangered (NMFS 2016a).

    Peer Review and Public Comment

    The scientific information considered by the BRT and summarized in our five-year review (NMFS 2016a) was peer reviewed and the proposed rule was subject to public comment. Following those reviews, there are no changes to the actions as proposed.

    Summary of Comments

    On July 6, 2016, we solicited comments during a 60-day public comment period from all interested parties including the public, other concerned governments and agencies, the scientific community, industry, and other interested parties on the proposed rule (81 FR 43979).

    We received four public comments, and three peer reviews on the proposed rule. Summaries of the substantive comments received, and our responses, are provided below and organized by topic.

    Comments on Sampling and Genetic Analysis

    Two of the three peer reviewers had questions and observations about the genetic analyses for both canary rockfish and yelloweye rockfish provided in the five-year review. NOAA's Northwest Fisheries Science Center (NWFSC) reviewed the genetic and sampling questions and provided responses within a memorandum (Andrews and Nichols 2016). This memorandum also reported on additional genetic analysis of samples collected in 2014 and 2015 that had not yet been analyzed and available in the five-year review (NMFS 2016a) or by the BRT (2015).

    The results of the updated genetic analysis are consistent with and did not change the outcome of the genetic assessment presented to the Biological Review Team in November 2015 (Ford 2015) and in the five-year review (NMFS 2016a) that informed the proposed rule. The information from the new analysis (Andrews and Nichols 2016) is included in the responses below.

    Comment 1: Two of the three scientific peer reviewers and two commenters agreed that canary rockfish sampled from the Puget Sound/Georgia Basin are not genetically differentiated from canary rockfish sampled outside of this area.

    Response: We agree.

    Comment 2: One peer reviewer did not agree that there was sufficient evidence to support our finding that canary rockfish are not genetically differentiated.

    Response: We disagree with the peer reviewer based on the analysis provided in the five-year review (NMFS 2016a) and BRT report (Ford 2015) in addition to the supplemental analysis provided by Andrews and Nichols (2016) and elaborated in this final rule. The best available information provides strong evidence that canary rockfish sampled in the Puget Sound/Georgia Basin are not genetically differentiated from coastal canary rockfish.

    Comment 3: Regarding the yelloweye rockfish and canary rockfish genetic analysis, one reviewer suggested that analytical methods conducted by the NWFSC (such as FST and STRUCTURE) should be described in our final rule.

    Response: We agree. While additional information on these analyses was included in documents supporting the proposed rule (81 FR 43979; July 6, 2016), we include clarifying information in this final rule as well (and as detailed in Andrews and Nichols 2016). The NWFSC conducted Principal Component Analysis (PCA), STRUCTURE, and FST analyses for yelloweye rockfish and canary rockfish, which are detailed in Andrews and Nichols (2016). These analyses for yelloweye rockfish support our findings that fish collected in the Puget Sound/Georgia Basin DPS are discrete from yelloweye rockfish collected on the outer coast. Similar analyses for canary rockfish support our findings that there is no discrete Puget Sound/Georgia Basin population (Andrews and Nichols 2016).

    Comment 4: One peer reviewer questioned the relatively low proportion of overall variation explained by PCA one and PCA two described in our five-year review and the proposed rule.

    Response: For yelloweye rockfish, the NWFSC used over 5,000 Restriction Site Associated DNA Sequencing loci in the analyses presented in the five-year review and over 7,000 loci in its final dataset (Andrews and Nichols 2016). There is a large amount of variation possible among this many loci leading to a relatively low proportion of the variance explained by the first two principal component scores.

    Comment 5: One reviewer questioned how the number of samples collected and analyzed by the NWFSC affects the estimate of statistical power and the ability to detect genetic differentiation for yelloweye rockfish and canary rockfish.

    Response: The NWFS did not conduct power analyses. Andrews and Nichols (2016) state that “. . . the magnitude of the FST confidence intervals, and the upper bound of those confidence intervals provide compelling evidence that differentiation among the sampled regions for canary rockfish is not significantly different from zero, and in many cases orders of magnitude lower than that observed for yelloweye rockfish.” This analysis bolsters the conclusion that canary rockfish are not genetically differentiated between the Puget Sound and the outer coast.

    Comment 6: One peer reviewer suggested that we provide details about the PCA scores, and which loci loaded most prominently onto those principal components.

    Response: The three analyses conducted by the NWFSC used this information to inform the integrative comparisons among individuals (PCA), population assignments (STRUCTURE) and statistical comparisons of FST values as documented in the five-year review and updated in Andrews and Nichols (2016). These integrative comparisons further support the evidence of genetic differentiation for yelloweye rockfish, and the lack thereof for canary rockfish.

    Comment 7: One peer reviewer stated that our proposal to delist canary rockfish should have taken into account environmental and/or life history characteristics that would “produce” a seemingly genetically homogeneous population, and questioned whether it is logical that yelloweye constitute a DPS but canary do not.

    Response: Our proposal to delist canary rockfish (81 FR 43979; July 6, 2016), in addition to the five-year review (NMFS 2016a), did discuss the known life-history characteristics of canary rockfish and yelloweye rockfish. Yelloweye rockfish have been found to have limited movements as adults (Hannah and Rankin 2011), while canary rockfish are known to move over large distances at both short and long time scales (DeMott 1983, Lea et al., 1999, Love et al., 2002, Hannah and Rankin 2011). This life-history characteristic suggests that there is limited probability of adult yelloweye from Puget Sound/Georgia Basin reproducing with adults from the outer coast, and therefore providing the necessary conditions for genetic differentiation to develop over time. The relatively quick and long-range movements of some adult canary rockfish suggest the high potential for breeding among individuals throughout their range and thus leading to a panmictic population (Andrews and Nichols 2016).

    A second relevant life-history trait supporting discreteness and identification of yelloweye rockfish as a DPS, in contrast to canary rockfish, is the timing of larval release. In waters off British Columbia, yelloweye rockfish release larvae from April to September with peaks in May and June. This timing of larval release could significantly affect the dispersal and/or retention of larval rockfish depending on the prevailing oceanographic currents and freshwater flows into and out of the Puget Sound/Georgia Basin (Andrews and Nichols 2016). Canary rockfish experience peak release of larvae from February to March (Love et. al. 2002) and thus this different release period may influence dispersal of larvae because of different oceanic and current conditions.

    Comment 8: A peer reviewer asked if there was any information regarding where canary rockfish reproduction takes place, whether canary rockfish spawn in aggregates, and if they have philopatric tendencies (a behavior where individuals return to their birthplace to breed).

    Response: We are not aware of information regarding where canary rockfish spawn on the Pacific coast or Puget Sound, but note that in locations where they are observed as gravid, it is logical that they release larvae nearby. Similarly, we are not aware of information regarding if canary rockfish mate or release larvae in aggregates.

    Comment 9: One peer reviewer asked if our proposal to delist canary rockfish accounted for the possibility that they were historically depleted in local waters, as documented in the 2010 Status Review (Drake et al., 2010), and replaced by the immigration of canary rockfish from the Pacific coast.

    Response: We do not have samples of canary rockfish from within the Puget Sound/Georgia Basin prior to their listing in 2010—thus it is not possible to test the scenario hypothesized by the reviewer genetically. However, it is unlikely that the process of recruitment or immigration of individual canary rockfish to/from the Puget Sound/Georgia Basin would have changed as theorized by the peer reviewer (Andrews and Nichols 2016). If recruitment or immigration of canary rockfish from the outer coast to the Puget Sound/Georgia Basin occurs today, which the genetic analysis suggests (see Figs. 2b, 4c and 6 and Table 2 in Andrews and Nichols 2016), it was very likely happening historically. The historical overfishing of canary rockfish in Puget Sound/Georgia Basin would not have altered the process of adults or larval dispersal of canary rockfish from the Pacific Coast into Puget Sound. If larval/juvenile canary rockfish dispersal among the two regions occurred historically, it is unlikely that canary rockfish in Puget Sound/Georgia Basin would have been genetically differentiated and yet the sampling would have missed these fish (Andrews and Nichols 2016).

    Comment 10: One peer reviewer asked how much genetic exchange is going on between the outer coast and the Puget Sound, and speculated that if canary rockfish are extirpated from the Puget Sound/Georgia Basin, that the population may not rebuild if there is limited movement of fish from the Pacific coast.

    Response: The genetic analysis indicates that genetic exchange of canary rockfish in the Pacific coast and the Puget Sound/Georgia Basin occurs frequently enough to develop one population across these areas (Andrews and Nichols 2016). For these reasons, it is unlikely that a hypothesized extirpation of canary rockfish within the Puget Sound/Georgia Basin would occur so long as there are canary rockfish outside of the Puget Sound/Georgia Basin that move amongst these areas.

    Comment 11: One peer reviewer disagreed that genetic information for canary rockfish, as detailed in the five-year review (NMFS 2016a) and BRT memo (Ford 2015), indicate “strong” evidence that fish sampled from the Puget Sound/Georgia Basin are not discrete from coastal fish. The reviewer questioned this characterization because of sample size, sample integrity, and sample representativeness of canary rockfish collected in this research. In addition, the reviewer questioned the reliance on principal coordinate cluster plots to portray genetic similarity because of the potential for misinterpretation of the results. The reviewer questioned why STRUCTURE plots and analysis of molecular variance results were not provided in the five-year review and asked what the average magnitude of FST values for canary rockfish were compared to yelloweye rockfish.

    Response: The STRUCTURE and FST information was included in supporting documents, and we agree that additional information would be useful to further explain the genetic data. Updated genetic analysis (based on an analysis of additional samples) and additional explanatory text are now documented in Andrews and Nichols (2016). The BRT considered not only the PCA, but also results from STRUCTURE and tests for pairwise population differentiation based on FST (Andrews and Nichols 2016). Those analyses were conducted on the number of samples outlined in the status review published in May 2016, but have since also been extended to additional samples with the same conclusions (see Andrews and Nichols 2016). All of these analyses show clear evidence for population structure in yelloweye rockfish, but not in the canary rockfish samples.

    Comment 12: One peer reviewer stated that a primary reason the yelloweye rockfish genetic analysis shows significant differentiation relative to canary rockfish is because we were able to collect samples of yelloweye rockfish samples in Canada and Hood Canal, in addition to the Central Puget Sound and from the Georgia Basin. The reviewer noted that the NWFSC was not able to collect canary rockfish samples from Canada (the Georgia Basin) and Hood Canal, and asked what the genetic analysis may have shown if samples could have been collected from these areas.

    Response: We were unable to collect canary rockfish samples in Hood Canal. We also searched for existing canary rockfish samples by contacting the Department of Fisheries and Oceans Canada, but were not able to find any from Canadian waters. Based on the lack of genetic differentiation between more geographically disparate locations such as the Central Puget Sound (where the NWFSC was able to collect samples) and the outer Pacific Coast, we would not expect genetic differentiation of canary rockfish if samples from Canadian coastal or inland waters were included (Andrews and Nichols 2016).

    As previously noted, canary rockfish have been documented to travel long distances, thus we would also not expect canary rockfish collected in Hood Canal to be genetically different even though there is a large sill at the entrance of Hood Canal (Drake et al., 2010) that may restrict dispersal due to restricted water movement into and out of this water body (Andrews and Nichols 2016). As suggested by this reviewer, the NWFSC examined the results from the PCA analysis for yelloweye rockfish as if we did not have the samples from Hood Canal and Canada (Fig. 7 in Andrews and Nichols 2016) and this analysis gives the same conclusion—that Puget Sound is significantly differentiated from the coastal collections in yelloweye rockfish.

    This conclusion is also supported by other genetic analyses, including pairwise differentiation of collections from these more limited regions. Therefore it is likely that if there were significant genetic differentiation for canary rockfish, the NWFSC would have detected it from the samples in Puget Sound and the Pacific coast as for yelloweye rockfish sampled in these regions.

    Comment 13: One peer reviewer stated that the absence of observed structure in the canary rockfish sample does not necessarily equate to the absence of structure in the population and questioned whether or not the sampled fish are actually representative of the population.

    Response: There are two reasons we believe the sampled canary rockfish are representative of the population. First, the sampling design consisted of 74 days of fishing across four regions of the DPS (South Puget Sound, Central Puget Sound, Hood Canal and the San Juan Islands) and one region outside the DPS (Strait of Juan de Fuca including locations near Neah Bay and Sekiu, WA). The sampling locations within these regions were derived from the knowledge of recreational charter boat captains, recent and past Remotely Operated Vehicle (ROV) surveys, and historical recreational catch information to target habitats where canary rockfish had been observed. This information and the number of sampling days provided ample effort to target canary rockfish in each of these regions, and we indeed collected canary rockfish from three of these five regions, including 50 from within the DPS (47 of these samples had sufficient readings during sequencing to be used in subsequent analyses) (Andrews and Nichols 2016). Second, the genetic sequencing methods used by the NWFSC allowed for detailed examination of the genome of each individual fish—increasing the power of these analyses to detect differences between individuals and differences among regions as compared to traditional analyses (Andrews and Nichols 2016).

    Comment 14: One peer reviewer suggested we collect larval canary rockfish for additional genetic analysis.

    Response: Given the strength of the genetic analysis we do not believe that additional samples from larval rockfish (or any other life-stage of canary rockfish) are needed to clarify the lack of structure of canary rockfish sampled within the Puget Sound/Georgia Basin and the Pacific coast. The samples collected from canary rockfish provide ample sample size to support the overall conclusion regarding the lack of genetic differentiation discussed in the five-year review and the proposal to delist canary rockfish (81 FR 43979; July 6, 2016), Ford (2015) and Andrews and Nichols (2016).

    Comment 15: One peer reviewer questioned whether our genetic analysis and proposal to delist canary rockfish was potentially influenced by potential misidentification of canary rockfish and yelloweye rockfish, including misidentification by scuba-divers. The reviewer was concerned that canary rockfish used in the genetics samples may have actually been yelloweye rockfish, (and vice versa).

    Response: All fish sampled in the genetic study were collected by professional fishing charter guides, biologists with NOAA Fisheries and the Washington State Department of Fish and Wildlife, thus we are confident that all canary rockfish and yelloweye rockfish sampled were identified to species correctly. The peer reviewer is correct, however, that yelloweye rockfish and canary rockfish look similar and the identification of rockfish to species can be difficult (Sawchuk et al., 2015). If such an incorrect species labeling were to occur within the genetic analysis, the analysis itself would have indicated this.

    Comments on Species Status and Protections

    Comment 16: Two peer reviewers observed that available information indicates that the number of canary rockfish individuals in the Puget Sound/Georgia Basin is relatively small. One reviewer acknowledged that canary rockfish in the Puget Sound/Georgia Basin do not appear to be a DPS, but expressed concern that fish in this area may nonetheless become extirpated. Another reviewer stated our decision to propose delisting should have been more precautionary because of the “. . . dearth of information for canary rockfish and scarcity of available data” regarding their abundance. Similarly, in the five-year review we noted that six canary rockfish were observed during recent ROV surveys, and one peer reviewer asked in how many years of surveys these six fish were observed.

    Response: We agree that there is little data regarding canary rockfish abundance in the Puget Sound/Georgia Basin, as described in our five-year review, and that it appears that canary rockfish in this area declined significantly in the latter half of the 20th century (as described in Drake et al., 2010). However, the determination to delist canary rockfish is based not on abundance information, but rather on determining if canary rockfish in the Puget Sound/Georgia Basin meet the criteria of a DPS (61 FR 4722; February 7, 1996), which allows them to be listed under the ESA.

    Though we are not required to implement a post-delisting monitoring plan for canary rockfish, there are research projects underway that will help us understand the numbers and distribution of rockfish in the Puget Sound, including canary rockfish. We have contracted with the Washington State Department of Wildlife to conduct an ROV survey within the Puget Sound. This two-year survey will be completed in early 2017 and data analysis and report writing will likely take a year or two after the completion date. This research will eventually provide additional data about rockfish abundance and distribution. In our five-year review we reported that this ROV survey had documented six canary rockfish; most of these fish were documented in the first year of the survey (2015) because the data from the second year of the survey is not yet fully available. In addition to the ROV survey, we have begun to seek information on where recreational divers observe juvenile yelloweye rockfish, canary rockfish and bocaccio. Similarly, the NWFSC is developing a young-of-the-year rockfish monitoring plan for the Puget Sound. As this monitoring plan is implemented we will gather additional information regarding the abundance and recruitment of rockfish, including canary rockfish.

    Comment 17: One peer reviewer stated that the declaration of the canary rockfish stock as “rebuilt” under the Magnuson-Stevens Act, as documented in Thorson and Wetzel (2015) and NMFS (2016b), was a “major consideration for the recommendation to delist” the Puget Sound/Georgia Basin DPS.

    Response: The reviewer is incorrect. Our removal of canary rockfish of the Puget Sound/Georgia Basin from the Federal List of Threatened and Endangered Species is based on the best available science and commercial information. In accordance with the DPS Policy (61 FR 4722; February 7, 1996), we have determined that the canary rockfish of the Puget Sound/Georgia Basin do not meet the criteria to be considered a DPS based on genetic information documented in the five-year review (NMFS 2016a), Ford (2015) and Andrews and Nichols (2016).

    Comment 18: One peer reviewer stated that information in the five-year review indicated that canary rockfish are rare in Puget Sound, and questioned how they could be declared “rebuilt” under the authority of the Magnuson-Stevens Act.

    Response: The peer reviewers were not tasked with evaluating the previous agency decision to declare canary rockfish of the Pacific coast as “rebuilt” subject to the criteria defined in the Magnuson-Stevens Act. Federal canary rockfish stock assessments performed pursuant to the Magnuson-Stevens Act do not include data regarding canary rockfish in Puget Sound waters within the Puget Sound/Georgia Basin. Rather the 2015 canary rockfish stock assessment under the Magnuson-Stevens Act was conducted with data collected along the Pacific coast (outside of the Puget Sound/Georgia Basin).

    Comment 19: One peer reviewer asked how canary rockfish in the Puget Sound/Georgia Basin are going to be protected if they are removed from the ESA.

    Response: Since the listing of yelloweye rockfish, canary rockfish and bocaccio in 2010, WDFW has changed fisheries regulations for several non-tribal commercial fisheries in Puget Sound in order to protect rockfish populations. The WDFW closed the active set net, set line, and bottom trawl fisheries, and the inactive pelagic trawl and bottomfish pot fishery. As a precautionary measure, WDFW closed the above commercial fisheries westward of the ESA-listed rockfish DPSs' boundary to Cape Flattery. WDFW extended the closure west of the rockfish DPSs' boundary to prevent applicable commercial fishers from concentrating gear in that area. The WDFW also implemented a rule that recreational anglers targeting bottomfish not fish deeper than 120 feet. These fisheries regulations are unlikely to change, and will benefit canary rockfish and nearly all rockfish species within the Puget Sound.

    On August 16, 2016, we released a Draft Recovery Plan for yelloweye rockfish and bocaccio (listed rockfish) of the Puget Sound/Georgia Basin (81 FR 54556). The Draft Recovery Plan identifies approximately 45 research and recovery actions for listed rockfish, and though these actions are not specifically designed for canary rockfish, they would nonetheless benefit from Plan implementation because of the similarity of habitats occupied for each species.

    We expect the Plan to inform section 7 consultations with Federal agencies under the ESA and to support other ESA decisions, such as considering permits under section 10. Mitigation incorporated into section 7 and section 10 actions to reduce impacts on listed rockfish will also likely reduce impacts to canary and other rockfish species. We have already begun implementation of several actions as described in the Plan, such as partnering with the WDFW to conduct ROV surveys to assess listed rockfish abundance, distribution, and habitat use.

    After the adoption of the Final Recovery Plan, we will continue to implement actions for which we have authority, work cooperatively on implementation of other actions, and encourage other Federal and state agencies to implement recovery actions for which they have responsibility and authority. Collectively, the management of fisheries, section 7 and 10 actions, and implementation of the listed-rockfish Recovery Plan will also benefit many species of non-listed rockfish of the Puget Sound/Georgia Basin, including canary rockfish.

    Summary of Changes From the Proposed Listing Rule

    We reviewed the best available scientific and commercial information, including the information in the peer reviews of the proposed rule (81 FR 43979; July 6, 2016), public comments, and information and analysis (Andrews and Nichols 2016) that have become available since the publication of the proposed rule. Based on this information, we have made no changes in this final rule.

    Final DPS and Status Determinations

    As proposed on July 6, 2016 (81 FR 43979), in this final rule we: (1) Correct the previous description of the northern boundary of the threatened Puget Sound/Georgia Basin yelloweye rockfish DPS to include an area farther north of the Johnstone Strait in Canada. We also update and amend the description of the DPS as fish residing within certain boundaries (including this geographic area farther north in the Strait of Georgia waters in Canada); (2) we remove Puget Sound/Georgia Basin canary rockfish DPS from the Federal List of Threatened and Endangered Species and their critical habitat, and (3) similar to yelloweye rockfish, we update and amend the listing description of the bocaccio DPS to describe boundaries to include fish residing within the Puget Sound/Georgia Basin rather than fish originating from the Puget Sound/Georgia Basin.

    Effects of the New Determinations

    Based on the new information and the BRT's determination, and consideration of public and peer review comments, we are removing canary rockfish of the Puget Sound/Georgia Basin from the Federal List of Threatened and Endangered Species. The Puget Sound/Georgia Basin yelloweye rockfish DPS shall remain threatened under the ESA, and the Puget Sound/Georgia Basin bocaccio DPS shall remain endangered.

    We are also removing designated critical habitat for canary rockfish. The critical habitat designation for the Puget Sound/Georgia Basin yelloweye rockfish and bocaccio DPSs remain in place. The area removed as designated critical habitat for canary rockfish will continue to be designated critical habitat for bocaccio and, thus, there will be no change to the spatial area that was originally designated. Maps of critical habitat can be found on our Web site at http://www.westcoast.fisheries.noaa.gov and in the final critical habitat rule (79 FR 68041; November 13, 2014).

    Additionally, we correct the listing description of the yelloweye rockfish DPS to define geographical boundaries including an area farther north of the Johnstone Strait in Canada (Figure 1). This boundary would not have an effect on critical habitat, because we do not designate critical habitat outside U.S. territory.

    ER23JA17.002

    With the Puget Sound/Georgia Basin canary rockfish DPS delisting, the requirements under section 7 of the ESA no longer apply. Federal agencies are relieved of the need to consult with us on their actions that may affect Puget Sound/Georgia Basin canary rockfish and their designated critical habitat and to insure that any action they authorize, fund, or carry out is not likely to jeopardize the continued existence of canary rockfish or adversely modify their critical habitat. ESA section 7 consultation requirements remain in place for the Puget Sound/Georgia Basin yelloweye rockfish and bocaccio DPSs. Recovery planning efforts will continue for these listed DPSs and a Draft Recovery Plan was released on August 16, 2016 (81 FR 54556).

    References Cited

    The complete citations for the references used in this document can be obtained by contacting NMFS (See ADDRESSES and FOR FURTHER INFORMATION CONTACT) or on our Web page at: http://www.westcoast.fisheries.noaa.gov.

    Information Quality Act and Peer Review

    In December 2004, OMB issued a Final Information Quality Bulletin for Peer Review pursuant to the Information Quality Act. The Bulletin was published in the Federal Register on January 14, 2005 (70 FR 2664). The Bulletin established minimum peer review standards, a transparent process for public disclosure of peer review planning, and opportunities for public participation with regard to certain types of information disseminated by the Federal Government. Peer review under the OMB Peer Review Bulletin ensures that our listing determinations are based on the best available scientific and commercial information. To satisfy our requirements under the OMB Bulletin, we obtained independent peer review of the proposed rule and underlying scientific information by three independent scientists with expertise in rockfish biology and/or genetics. All peer review comments were addressed in this final rule (see the Summary of Comments heading in this preamble).

    Classification National Environmental Policy Act (NEPA)

    The 1982 amendments to the ESA, in section 4(b)(1)(A), restrict the information that may be considered when assessing species for listing. Based on this limitation of criteria for a listing decision and the opinion in Pacific Legal Foundation v. Andrus, 657 F. 2d 829 (6th Cir. 1981), we have concluded that NEPA does not apply to ESA listing actions. (See NOAA Administrative Order 216-6.).

    Executive Order 12866, Regulatory Flexibility Act, and Paperwork Reduction Act

    As noted in the Conference Report on the 1982 amendments to the ESA, economic impacts cannot be considered when assessing the status of a species. Therefore, the economic analysis requirements of the Regulatory Flexibility Act are not applicable to the listing process. In addition, this final rule is exempt from review under Executive Order 12866. This final rule does not contain a collection of information requirement for the purposes of the Paperwork Reduction Act.

    Executive Order 13122, Federalism

    In accordance with E.O. 13132, we determined that this final rule does not have significant federalism effects and that a federalism assessment is not required. In keeping with the intent of the Administration and Congress to provide continuing and meaningful dialogue on issues of mutual state and Federal interest, this final rule will be shared with the relevant state agencies in Washington state.

    Executive Order 13175, Consultation and Coordination With Indian Tribal Governments

    The longstanding and distinctive relationship between the Federal and tribal governments is defined by treaties, statutes, executive orders, judicial decisions, and co-management agreements, which differentiate tribal governments from the other entities that deal with, or are affected by, the Federal government. This relationship has given rise to a special Federal trust responsibility involving the legal responsibilities and obligations of the United States toward Indian Tribes. E.O. 13175—Consultation and Coordination with Indian Tribal Governments—outlines the responsibilities of the Federal Government in matters affecting tribal interests.

    We have coordinated with tribal governments that may be affected by the action.

    List of Subjects 50 CFR Part 223

    Endangered and threatened species, Exports, Imports, Transportation.

    50 CFR Part 224

    Endangered and threatened species.

    50 CFR Part 226

    Designated Critical Habitat.

    Dated: January 9, 2017. Samuel D Rauch, III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

    For the reasons set out in the preamble, 50 CFR parts 223. 224, and 226 are amended as follows:

    PART 223—THREATENED MARINE AND ANADROMOUS SPECIES 1. The authority citation for part 223 continues to read as follows: Authority:

    16 U.S.C. 1531-1543; subpart B, § 223.201-202 also issued under 16 U.S.C. 1361 et seq.; 16 U.S.C. 5503(d) for § 223.206(d)(9).

    2. In § 223.102, in the table in paragraph (e), under the subheading “Fishes,” remove the entry for “Rockfish, canary (Puget Sound/Georgia Basin DPS)”; and revise the table entries for “Rockfish, yelloweye (Puget Sound/Georgia Basin DPS).”

    The revision reads as follows:

    § 223.102 Enumeration of threatened marine and anadromous species.

    (e) * * *

    Species 1 Common name Scientific name Description of listed entity Citation(s) for listing determination(s) Critical habitat ESA rules Fishes *         *         *         *         *         *         * Rockfish, yelloweye (Puget Sound/Georgia Basin DPS) Sebastes ruberrimus Yelloweye rockfish residing within the Puget Sound/Georgia Basin, inclusive of the Queen Charlotte Channel to Malcom Island, in a straight line between the western shores of Numas and Malcom Islands—N 50 50′46″, W 127 5′55″ and N 50 36′49″, W 127 10′17″ 75 FR 22276, Apr 28, 2010 226.224 NA The Western Boundary of the U.S. side in the Strait of Juan de Fuca is N 48 7′16″, W123 17′15″ in a straight line to the Canadian side at N 48 24′40″, 123 17′38″ *         *         *         *         *         *         * 1 Species includes taxonomic species, subspecies, distinct population segments (DPSs) (for a policy statement, see 61 FR 4722, February, 1996), and evolutionarily significant units (ESUs) (for a policy statement, see 56 FR 58612, November 20, 1991).
    PART 224—ENDANGERED MARINE AND ANADROMOUS SPECIES. 3. The authority citation for part 224 continues to read as follows: Authority:

    16 U.S.C. 1531-1543 and 16 U.S.C. 1361 et seq.

    4. In § 224.101, paragraph (h), under the subheading “Fishes,” revise the table entry for “Bocaccio (Puget Sound/Georgia Basin DPS)” to read as follows:
    § 224.101 Enumeration of endangered marine and anadromous species.

    (h) * * *

    Species 1 Common name Scientific name Description of listed entity Citation(s) for listing determination(s) Critical habitat ESA rules Fishes *         *         *         *         *         *         * Bocaccio (Puget Sound/Georgia Basin DPS) Sebastes paucispinis Bocaccio residing within the Puget Sound/Georgia Basin to the Northern Boundary of the Northern Strait of Georgia along the southern contours of Quadra Island, Maurelle Island and Sonora Island, all of Bute Inlet 75 FR 22276, Apr 28, 2010 226.224 NA The Western Boundary of the U.S. side in the Strait of Juan de Fuca is N 48 7′16″, W123 17′15″ in a straight line to the Canadian side at N 48 24′40″, 123 17′38″ *         *         *         *         *         *         * 1 Species includes taxonomic species, subspecies, distinct population segments (DPSs) (for a policy statement, see 61 FR 4722, February, 1996), and evolutionarily significant units (ESUs) (for a policy statement, see 56 FR 58612, November 20, 1991).
    PART 226—DESIGNATED CRITICAL HABITAT 5. The authority citation for Part 226 continues to read as follows: Authority:

    16 U.S.C. 1533.

    6. In § 226.224: a. Revise the section heading; b. Remove the entry for canary rockfish in the table in paragraph (a); and c. Revise paragraphs (b), (c), and (d).

    The revisions read as follows:

    § 226.224 Critical habitat for the Puget Sound/Georgia Basin DPS of yelloweye rockfish (Sebastes ruberrimus), and Bocaccio (S. paucispinus).

    (b) Critical habitat boundaries. In delineating nearshore (shallower than 30 m (98 ft)) areas in Puget Sound, we define critical habitat for bocaccio, as depicted in the maps below, as occurring from the shoreline from extreme high water out to a depth no greater than 30 m (98 ft) relative to mean lower low water. Deepwater critical habitat for yelloweye rockfish and bocaccio occurs in some areas, as depicted in the maps below, from depths greater than 30 m (98 ft). The critical habitat designation includes the marine waters above (the entire water column) the nearshore and deepwater areas depicted in the maps in this section.

    (c) Essential features for juvenile bocaccio. (1) Juvenile settlement habitats located in the nearshore with substrates such as sand, rock and/or cobble compositions that also support kelp are essential for conservation because these features enable forage opportunities and refuge from predators and enable behavioral and physiological changes needed for juveniles to occupy deeper adult habitats. Several attributes of these sites determine the quality of the area and are useful in considering the conservation value of the associated feature and in determining whether the feature may require special management considerations or protection. These features also are relevant to evaluating the effects of an action in an ESA section 7 consultation if the specific area containing the site is designated as critical habitat. These attributes include:

    (i) Quantity, quality, and availability of prey species to support individual growth, survival, reproduction, and feeding opportunities; and

    (ii) Water quality and sufficient levels of dissolved oxygen to support growth, survival, reproduction, and feeding opportunities.

    (2) Nearshore areas are contiguous with the shoreline from the line of extreme high water out to a depth no greater than 30 meters (98 ft) relative to mean lower low water.

    (d) Essential features for adult bocaccio and adult and juvenile yelloweye rockfish. Benthic habitats and sites deeper than 30 m (98 ft) that possess or are adjacent to areas of complex bathymetry consisting of rock and or highly rugose habitat are essential to conservation because these features support growth, survival, reproduction, and feeding opportunities by providing the structure for rockfish to avoid predation, seek food and persist for decades. Several attributes of these sites determine the quality of the habitat and are useful in considering the conservation value of the associated feature, and whether the feature may require special management considerations or protection. These attributes are also relevant in the evaluation of the effects of a proposed action in an ESA section 7 consultation if the specific area containing the site is designated as critical habitat. These attributes include:

    (1) Quantity, quality, and availability of prey species to support individual growth, survival, reproduction, and feeding opportunities;

    (2) Water quality and sufficient levels of dissolved oxygen to support growth, survival, reproduction, and feeding opportunities; and

    (3) The type and amount of structure and rugosity that supports feeding opportunities and predator avoidance.

    BILLING CODE 3510-22-P ER23JA17.003 ER23JA17.004 ER23JA17.005 ER23JA17.006 ER23JA17.007 ER23JA17.008 ER23JA17.009 ER23JA17.010 ER23JA17.011 ER23JA17.012
    [FR Doc. 2017-00559 Filed 1-19-17; 8:45 am] BILLING CODE 3510-22-C
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 665 RIN 0648-XF155 Pacific Island Fisheries; 2017 Northwestern Hawaiian Islands Lobster Harvest Guideline AGENCY:

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

    ACTION:

    Notification of lobster harvest guideline.

    SUMMARY:

    NMFS establishes the annual harvest guideline for the commercial lobster fishery in the Northwestern Hawaiian Islands for calendar year 2017 at zero lobsters.

    DATES:

    January 23, 2017.

    FOR FURTHER INFORMATION CONTACT:

    Bob Harman, NMFS PIR Sustainable Fisheries, telephone: 808-725-5170.

    SUPPLEMENTARY INFORMATION:

    NMFS manages the Northwestern Hawaiian Islands (NWHI) commercial lobster fishery under the Fishery Ecosystem Plan for the Hawaiian Archipelago. The regulations at 50 CFR 665.252(b) require NMFS to publish an annual harvest guideline for lobster Permit Area 1, comprised of Federal waters around the NWHI.

    Regulations governing the Papahanaumokuakea Marine National Monument in the NWHI prohibit the unpermitted removal of monument resources (50 CFR 404.7), and establish a zero annual harvest guideline for lobsters (50 CFR 404.10(a)). Accordingly, NMFS establishes the harvest guideline for the NWHI commercial lobster fishery for calendar year 2017 at zero lobsters. Harvest of NWHI lobster resources is not allowed.

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: January 17, 2017. Emily H. Menashes, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2017-01410 Filed 1-19-17; 8:45 am] BILLING CODE 3510-22-P
    82 13 Monday, January 23, 2017 Proposed Rules DEPARTMENT OF AGRICULTURE Agricultural Marketing Service 7 CFR Parts 33 and 35 [Doc. No. AMS-FV-14-0099; FV15-33/35-1 PR] Regulations Issued Under Authority of the Export Apple Act and Export Grapes and Plums; Changes to Export Reporting Requirements AGENCY:

    Agricultural Marketing Service, USDA.

    ACTION:

    Proposed rule; reopening of comment period.

    SUMMARY:

    Notice is hereby given that the Agricultural Marketing Service (AMS) is reopening the comment period on the proposed rule to change the reporting of export certificate information under regulations issued pursuant to the Export Apple Act and the Export Grape and Plum Act until March 24, 2017. The proposed rule would require shippers of apples and grapes exported from the United States to electronically enter an Export Form Certificate number or a USDA-defined exemption code into the Automated Export System (AES). This rule would also define “shipper,” shift the current file retention requirement from carriers to shippers, and require shippers to provide, upon request, copies of the certificates to AMS. The proposed rule would also remove obsolete regulations and make clarifying changes. It also announced AMS' intention to request revision to a currently approved information collection for exported apples and grapes.

    DATES:

    Comments must be received by March 24, 2017.

    ADDRESSES:

    Interested persons are invited to submit written comments concerning the proposal. Comments must be sent to the Docket Clerk, Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA, 1400 Independence Avenue SW., STOP 0237, Washington, DC 20250-0237; Fax: (202) 720-8938; or Internet: http://www.regulations.gov. All comments should reference the document number and the date and page number of this issue and the December 5, 2016, issue of the Federal Register and will be made available for public inspection in the Office of the Docket Clerk during regular business hours or can be viewed at: http://www.regulations.gov. All comments submitted in response to the proposed rule will be included in the record and will be made available to the public. Please be advised that the identity of the individuals or entities submitting the comments will be made public on the internet at the address provided above.

    FOR FURTHER INFORMATION CONTACT:

    Shannon Ramirez, Compliance and Enforcement Specialist, or Vincent Fusaro, Compliance and Enforcement Branch Chief, Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA; Telephone: (202) 720-2491, Fax: (202) 720-8938, or Email: [email protected] or [email protected]

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

    SUPPLEMENTARY INFORMATION:

    A proposed rule was published in the Federal Register on December 5, 2016 (81 FR 87486). The proposed rule would change the reporting of export certificate information under regulations issued pursuant to both the Export Apple Act and the Export Grape and Plum Act (7 CFR part 33, “Regulations Issued Under Authority of the Export Apple Act,” and 7 CFR part 35, “Export Grapes and Plums,” respectively). Shippers of apples and grapes exported from the United States subject to inspection would be required to enter the certificate number from inspection certificates (i.e., Export Form Certificates) into AES. For apples shipped to Canada in bulk containers, which are exempt from inspection requirements, shippers would be required to enter a special USDA-defined exemption code in lieu of an Export Form Certificate number. Shippers would also be required to maintain paper or electronic copies of the certificates and to provide copies to AMS upon request. The proposed rule would also define “shipper” and would remove the requirement that carriers of exported apples and grapes retain certificates on file (because the requirement to retain the certificates would shift to shippers of exported apples and grapes). It would also remove regulations that are no longer applicable to grape exports and add structure and language to clarify the regulations.

    Plums are not currently regulated under the Export Grape and Plum Act; therefore, the proposed change would not impact shipments of plums exported from the United States. If plums exported from the United States are regulated in the future under the Export Grape and Plum Act, the reporting of export certificate information similar to what is being proposed for exported grapes and apples would be proposed for plums.

    The initial comment period for the proposed rule closed on January 4, 2017. USDA received a comment from a member of the export apple industry requesting that the comment period be extended by 60 days to allow more time to comment on the proposed rule. This individual expressed concern that while the proposed rule provided for a 60-day comment period, additional time was needed beyond the January 4, 2017, deadline to allow interested persons to comment.

    After considering the request, USDA is reopening the comment period until March 24, 2017. This will provide interested persons more time to review the proposed rule, perform a complete analysis, and submit written comments.

    Authority:

    This notice is issued pursuant to the Export Apple Act (48 Stat. 124; 7 U.S.C. 581-590) and the Export Grape and Plum Act (74 Stat. 734; 75 Stat. 220; 7 U.S.C. 591-599).

    Dated: January 17, 2017. Elanor Starmer, Administrator, Agricultural Marketing Service.
    [FR Doc. 2017-01417 Filed 1-19-17; 8:45 am] BILLING CODE 3410-02-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2016-9490; Directorate Identifier 2016-NE-26-AD] RIN 2120-AA64 Airworthiness Directives; General Electric Company Turbofan Engines AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    We propose to adopt a new airworthiness directive (AD) for certain General Electric Company (GE) CF6-80C2L1F turbofan engines. This proposed AD was prompted by a reduction in the life limit of the affected engines which is the result of a revised operating profile. This proposed AD would require replacement of the high-pressure turbine (HPT) spacer/impeller, part number (P/N) 1539M12P02, at a newer, lower life limit. We are proposing this AD to correct the unsafe condition on these products.

    DATES:

    We must receive comments on this proposed AD by March 9, 2017.

    ADDRESSES:

    You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:

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

    Fax: 202-493-2251.

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

    Hand Delivery: Deliver to Mail address above between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

    Examining the AD Docket

    You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-9490; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this proposed AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (phone: 800-647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

    FOR FURTHER INFORMATION CONTACT:

    Herman Mak, Aerospace Engineer, Engine Certification Office, FAA, Engine & Propeller Directorate, 1200 District Avenue, Burlington, MA 01803; phone: 781-238-7147; fax: 781-238-7199; email: [email protected]

    SUPPLEMENTARY INFORMATION: Comments Invited

    We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2016-9490; Directorate Identifier 2016-NE-26-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD because of those comments.

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

    Discussion

    The United States Air Force revised its operating profile for its GE CF6-80C2L1F engines. As a result of this change in operating profile, GE reduced its life limit for the HPT spacer/impeller from 20,000 to 18,000 cycles. Therefore, we are proposing to require removal of this affected HPT spacer/impeller at the new, lower life limit. This condition, if not corrected, could result in failure of the HPT spacer/impeller, uncontained release of the HPT spacer/impeller, damage to the engine, and damage to the airplane.

    FAA's Determination

    We are proposing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.

    Proposed AD Requirements

    This proposed AD would require replacement of the HPT spacer/impeller, P/N 1539M12P02, at a newer, lower life limit.

    Costs of Compliance

    We estimate that this proposed AD affects 0 engines installed on airplanes of U.S. registry.

    We estimate the following costs to comply with this proposed AD:

    Estimated Costs Action Labor cost Parts cost Cost per
  • product
  • Cost on U.S. operators
    Replacement of HPT spacer/impeller at reduced life 0 work-hours × $85 per hour = $0 $19,320 (pro-rated cost of part) $19,320 $0
    Authority for This Rulemaking

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

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

    Regulatory Findings

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

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

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

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

    (3) Will not affect intrastate aviation in Alaska to the extent that it justifies making a regulatory distinction, and

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

    List of Subjects in 14 CFR Part 39

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

    The Proposed Amendment

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

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

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): General Electric Company: Docket No. FAA-2016-9490; Directorate Identifier 2016-NE-26-AD. (a) Comments Due Date

    We must receive comments by March 9, 2017.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to General Electric Company (GE) CF6-80C2L1F turbofan engines with a high-pressure turbine (HPT) spacer/impeller, part number (P/N) 1539M12P02, installed.

    (d) Subject

    Joint Aircraft System Component (JASC) Code 7250, Turbine/Turboprop Engine—Turbine Section.

    (e) Unsafe Condition

    This AD was prompted by a reduction in the life limit of the affected engines, which is the result of a revised operating profile. We are issuing this AD to prevent failure of the HPT spacer/impeller, uncontained release of the HPT spacer/impeller, damage to the engine, and damage to the airplane.

    (f) Compliance

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

    After the effective date of this AD, replace the HPT spacer/impeller, P/N 1539M12P02, before it exceeds 18,000 flight cycles since new.

    (g) Installation Prohibition

    After the effective date of this AD, do not install an HPT spacer/impeller, P/N 1539M12P02, onto any engine, or return to service any engine with an HPT spacer/impeller, P/N 1539M12P02, installed, if the HPT spacer/impeller exceeds 18,000 flight cycles since new.

    (h) Alternative Methods of Compliance (AMOCs)

    The Manager, Engine Certification Office, FAA, may approve AMOCs for this AD. Use the procedures found in 14 CFR 39.19 to make your request. You may email your request to: [email protected]

    (i) Related Information

    For more information about this AD, contact Herman Mak, Aerospace Engineer, Engine Certification Office, FAA, Engine & Propeller Directorate, 1200 District Avenue, Burlington, MA 01803; phone: 781-238-7147; fax: 781-238-7199; email: [email protected]

    Issued in Burlington, Massachusetts, on January 12, 2017. Colleen M. D'Alessandro, Manager, Engine & Propeller Directorate, Aircraft Certification Service.
    [FR Doc. 2017-01227 Filed 1-19-17; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA-2016-9355; Airspace Docket No. 16-ANM-8] Proposed Amendment of Class D and Class E Airspace; Hailey, ID AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    This action proposes to modify Class D airspace, Class E surface area airspace, and Class E airspace extending upward from 700 feet above the surface at Friedman Memorial Airport, Hailey, ID, to support the implementation of new Area Navigation (RNAV) Global Positioning System (GPS) standard instrument approach procedures for Instrument Flight Rules (IFR) at the airport.

    DATES:

    Comments must be received on or before March 9, 2017.

    ADDRESSES:

    Send comments on this proposal to the U.S. Department of Transportation, Docket Operations, 1200 New Jersey Avenue SE., West Building Ground Floor, Room W12-140, Washington, DC 20590; telephone: 1-800-647-5527, or (202) 366-9826. You must identify FAA Docket No. FAA-2016-9355; Airspace Docket No. 16-ANM-8, at the beginning of your comments. You may also submit comments through the Internet at http://www.regulations.gov. You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office between 9:00 a.m. and 5:00 p.m., Monday through Friday, except Federal holidays.

    FAA Order 7400.11A, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at http://www.faa.gov/air_traffic/publications/. For further information, you can contact the Airspace Policy Group, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone: 202-267-8783. The Order is also available for inspection at the National Archives and Records Administration (NARA). For information on the availability of FAA Order 7400.11A at NARA, call 202-741-6030, or go to http://www.archives.gov/federal_register/code_of_federal-regulations/ibr_locations.html.

    FAA Order 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.

    FOR FURTHER INFORMATION CONTACT:

    Tom Clark, Federal Aviation Administration, Operations Support Group, Western Service Center, 1601 Lind Avenue SW., Renton, WA 98057; telephone (425) 203-4511.

    SUPPLEMENTARY INFORMATION: Authority for This Rulemaking

    The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. 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. This rulemaking is promulgated under the authority described in Subtitle VII, Part, A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would amend Class D and Class E airspace at Friedman Memorial Airport, Hailey, ID.

    Comments Invited

    Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Persons wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2016-9355/Airspace Docket No. 15-ANM-6.” The postcard will be date/time stamped and returned to the commenter.

    All communications received before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this notice may be changed in light of the comments received. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.

    Availability of NPRMs

    An electronic copy of this document may be downloaded through the Internet at http://www.regulations.gov. Recently published rulemaking documents can also be accessed through the FAA's Web page at http://www.faa.gov/air_traffic/publications/airspace_amendments/.

    You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see the ADDRESSES section for the address and phone number) between 9:00 a.m. and 5:00 p.m., Monday through Friday, except federal holidays. An informal docket may also be examined during normal business hours at the Northwest Mountain Regional Office of the Federal Aviation Administration, Air Traffic Organization, Western Service Center, Operations Support Group, 1601 Lind Avenue SW., Renton, WA 98057.

    Availability and Summary of Documents Proposed for Incorporation by Reference

    This document proposes to amend FAA Order 7400.11A, Airspace Designations and Reporting Points, dated August 3, 2016, and effective September 15, 2016. FAA Order 7400.11A is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.11A lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

    The Proposal

    The FAA is proposing an amendment to Title 14 Code of Federal Regulations (14 CFR) Part 71 by modifying Class D airspace, Class E surface area airspace, and Class E airspace extending upward from 700 feet above the surface at Friedman Memorial Airport, Hailey, ID, to support implementation of new RNAV (GPS) standard instrument approach procedures at the airport. The new RNAV (GPS) procedures require additional Class D airspace in the vicinity of the airport for circling maneuvers, but require less airspace upward from 700 feet above the surface to support IFR arrival and departure aircraft. Class D airspace would be expanded from the surface to and including 7,800 feet MSL to within a 4.9-mile radius (increased from a 4.1-mile radius) of the airport, with an extension from the 4.9-mile radius increased from 6 miles to 6.3 miles southeast.

    Class E surface area airspace would be reduced to within a 4.9-mile radius of the airport, with a segment increased from 6 miles to 6.3 miles southeast of the airport to provide controlled airspace when Class D airspace is not in effect.

    Class E airspace extending upward from 700 feet above the surface would be reduced to within a 4.9-mile radius of the airport (from the 5.5-mile radius), with the southeast segment reduced from 15.5 miles to 11.3 miles from the radius of the airport. Additionally, the geographic coordinates for the airport listed in the Class D description would be updated to coincide with the FAA's aeronautical database.

    Class D and Class E airspace designations are published in paragraph 5000, 6002, and 6005, respectively, of FAA Order 7400.11A, dated August 3, 2016 and effective September 15, 2016, which is incorporated by reference in 14 CFR 71.1. The Class D and Class E airspace designations listed in this document will be published subsequently in the Order.

    Regulatory Notices and Analyses

    The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current, is non-controversial and unlikely to result in adverse or negative comments. It, therefore: (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); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, would not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

    Environmental Review

    This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.

    List of Subjects in 14 CFR Part 71

    Airspace, Incorporation by reference, Navigation (air).

    The Proposed Amendment

    Accordingly, pursuant to the authority delegated to me, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:

    PART 71—DESIGNATION OF CLASS A, B, C, D, AND E AIRSPACE AREAS; AIR TRAFFIC SERVICE ROUTES; AND REPORTING POINTS 1. The authority citation for 14 CFR Part 71 continues to read as follows: Authority:

    49 U.S.C. 106(f), 106(g), 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.

    § 71.1 [Amended]
    2. The incorporation by reference in 14 CFR 71.1 of FAA Order 7400.11A, Airspace Designations and Reporting Points, dated August 3, 2016, and effective September 15, 2016, is amended as follows: Paragraph 5000 Class D Airspace. ANM ID D Hailey, ID [Modified] Friedman Memorial Airport, ID (Lat. 43°30′14″ N., long. 114°17′44″ W.)

    That airspace extending upward from the surface to, and including, 7,800 feet MSL within a 4.9-mile radius of Friedman Memorial Airport, and that airspace within 2.1 miles west and 1.4 miles east of the 155° bearing from the airport extending from the airport 4.9-mile radius to 6.3 miles southeast of the airport. This Class D airspace area is effective during the specified dates and times established in advance by a Notice to Airmen. The effective date and time will thereafter be continuously published in the Chart Supplement (previously called Airport/Facility Directory).

    Paragraph 6002 Class E Airspace Designated as Surface Areas. ANM ID E2 Hailey, ID [Modified] Friedman Memorial Airport, ID (Lat. 43°30′14″ N., long. 114°17′44″ W.)

    That airspace extending upward from the surface within a 4.9-mile radius of Friedman Memorial Airport, and within 2.1 miles west and 1.4 miles east of the 155° bearing from the airport, extending from the airport 4.9-mile radius to 6.3 miles southeast of the airport.

    Paragraph 6005 Class E Airspace Areas Extending Upward From 700 Feet or More Above the Surface of the Earth. ANM ID, E5 Hailey, ID [Modified] Friedman Memorial Airport, ID (Lat. 43°30′14″ N., long. 114°17′44″ W.)

    That airspace extending upward from 700 feet above the surface within a 4.9-mile radius of Friedman Memorial Airport, and within 2.5 miles each side of the 155° bearing from the airport extending from the airport 4.9-mile radius to 11.3 miles southeast of the airport; and that airspace extending upward from 1,200 feet above the surface bounded by a line beginning at lat. 44°00′00″ N., long. 114°55′00″ W., to lat. 44°00′00″ N., long. 113°53′00″ W., to lat. 43°00′00″ N., long. 113°49′00″ W., to lat. 43°00′00″ N., long. 114°55′00″ W., thence to point of beginning.

    Issued in Seattle, Washington, on January 10, 2017. Richard Roberts, Acting Manager, Operations Support Group, Western Service Center.
    [FR Doc. 2017-01268 Filed 1-19-17; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA-2016-8164; Airspace Docket No. 15-ANM-25] Proposed Establishment of Class E Airspace, Manti, UT AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Supplemental notice of proposed rulemaking (SNPRM); reopening of comment period.

    SUMMARY:

    This supplemental notice of proposed rulemaking would establish Class E airspace upward from 700 feet above the surface within a 4.7-mile radius of Manti-Ephraim Airport, Manti, UT, with segments extending north and southwest of the airport. In an NPRM published in the Federal Register on November 22, 2016, the FAA proposed to establish Class E airspace extending upward from 700 feet above the surface within a 4-mile radius of Manti-Ephraim Airport, with extensions north and southwest. The FAA found additional airspace is necessary for new category D circling Instrument Flight Rules (IFR) operations for standard instrument approach procedures and to support the safety and management of IFR operations at the airport.

    DATES:

    The comment period for the notice of proposed rulemaking published in the Federal Register of November 22, 2016 (81 FR 83749), is reopened until February 22, 2017.

    ADDRESSES:

    Send comments on this proposal to the U.S. Department of Transportation, Docket Operations, 1200 New Jersey Avenue SE., West Building Ground Floor, Room W12-140, Washington, DC 20590; telephone: 1-800-647-5527, or (202) 366-9826. You must identify FAA Docket No. FAA-2016-8164; Airspace Docket No. 15-ANM-25, at the beginning of your comments. You may also submit comments through the Internet at http://www.regulations.gov.

    FAA Order 7400.11, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at http://www.faa.gov/air_traffic/publications/. For further information, you can contact the Airspace Policy Group, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone: 202-267-8783. The Order is also available for inspection at the National Archives and Records Administration (NARA). For information on the availability of FAA Order 7400.11A at NARA, call 202-741-6030, or go to http://www.archives.gov/federal_register/code_of_federal-regulations/ibr_locations.html.

    FAA Order 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.

    FOR FURTHER INFORMATION CONTACT:

    Tom Clark, Federal Aviation Administration, Operations Support Group, Western Service Center, 1601 Lind Avenue SW., Renton, WA 98057; telephone (425) 203-4511.

    SUPPLEMENTARY INFORMATION:

    Authority for This Rulemaking

    The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. 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. This rulemaking is promulgated under the authority described in Subtitle VII, Part, A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would establish Class E airspace at Manti-Ephraim Airport, Manti, UT.

    Comments Invited

    Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Persons wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2016-8164/Airspace Docket No. 15-ANM-25.” The postcard will be date/time stamped and returned to the commenter.

    All communications received before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this notice may be changed in light of the comments received. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.

    Availability of NPRMs

    An electronic copy of this document may be downloaded through the Internet at http://www.regulations.gov. Recently published rulemaking documents can also be accessed through the FAA's Web page at http://www.faa.gov/air_traffic/publications/airspace_amendments/.

    You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see the ADDRESSES section for the address and phone number) between 9:00 a.m. and 5:00 p.m., Monday through Friday, except federal holidays. An informal docket may also be examined during normal business hours at the Northwest Mountain Regional Office of the Federal Aviation Administration, Air Traffic Organization, Western Service Center, Operations Support Group, 1601 Lind Avenue SW., Renton, WA 98057.

    Availability and Summary of Documents Proposed for Incorporation by Reference

    This document proposes to amend FAA Order 7400.11A, Airspace Designations and Reporting Points, dated August 3, 2016, and effective September 15, 2016. FAA Order 7400.11A is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.11A lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

    History

    On November 22, 2016, the FAA published in the Federal Register an NPRM proposing to establish Class E airspace extending upward from 700 feet above the surface at Manti-Ephraim Airport, Manti, UT (81 FR, 83749) FAA-2016-8164. The FAA has received and concurs with a request by the National Business Aviation Association to develop IFR standard instrument approach circling procedures for category D aircraft for the airport. The additional IFR category D circling procedures would require additional airspace for the safety if IFR aircraft using the new procedure.

    The Proposal

    The FAA is proposing an amendment to Title 14 Code of Federal Regulations (14 CFR) part 71 by establishing Class E airspace extending upward from 700 feet above the surface within a 4.7-mile radius (from a 4-mile radius) of Manti-Ephraim Airport, Manti, UT, with segments extending from the 4.7-mile radius to 11 miles southwest of the airport, and 7.2 miles northeast of the airport. Additional airspace is necessary to support the development of IFR circling procedures for category D aircraft operations in standard instrument approach and departure procedures at the airport.

    Class E airspace designations are published in paragraph 6005 of FAA Order 7400.11A, dated August 3, 2016, and effective September 15, 2016, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

    Regulatory Notices and Analyses

    The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current, is non-controversial and unlikely to result in adverse or negative comments. It, therefore: (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); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, would not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

    Environmental Review

    This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.

    List of Subjects in 14 CFR Part 71

    Airspace, Incorporation by reference, Navigation (air).

    The Proposed Amendment

    Accordingly, pursuant to the authority delegated to me, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:

    PART 71—DESIGNATION OF CLASS A, B, C, D, AND E AIRSPACE AREAS; AIR TRAFFIC SERVICE ROUTES; AND REPORTING POINTS 1. The authority citation for 14 CFR part 71 continues to read as follows: Authority:

    49 U.S.C. 106(f), 106(g), 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.

    § 71.1 [Amended]
    2. The incorporation by reference in 14 CFR 71.1 of FAA Order 7400.11A, Airspace Designations and Reporting Points, dated August 3, 2016, and effective September 15, 2016, is amended as follows: Paragraph 6005 Class E Airspace Areas Extending Upward From 700 Feet or More Above the Surface of the Earth. ANM UT E5 Manti, UT [New] Manti-Ephraim Airport, Utah (Lat. 39°19′53″ N., long. 111°36′45″ W.)

    That airspace extending upward from 700 feet above the surface within a 4.7-mile radius of Manti-Ephraim Airport, and that airspace 2 miles either side of a 225° bearing from the airport extending from the 4.7-mile radius to 11 miles southwest of the airport, and that airspace within 1.8 miles east of the line beginning at lat. 39°17′50″ N., long. 111°39′27″ W., to lat. 39°14′35″ N., long. 111°41′06″ W., and that airspace beginning at the point where a 001° bearing from the airport intersects the 4.7-mile radius to lat. 39°26′54″ N., long. 111°36′20″ W., to lat. 39°26′34″ N., long. 111°31′41″ W., to the point where a 053° bearing from the airport intersects the 4.7-mile radius, thence counter-clockwise along the 4.7-mile radius to the point of beginning.

    Issued in Seattle, Washington, on January 10, 2017. Richard Roberts, Acting Manager, Operations Support Group, Western Service Center.
    [FR Doc. 2017-01039 Filed 1-19-17; 8:45 am] BILLING CODE 4910-13-P
    COMMODITY FUTURES TRADING COMMISSION 17 CFR Parts 3 and 9 RIN 3038-AE15 Technical Amendments to Rules on Registration and Review of Exchange Disciplinary, Access Denial or Other Adverse Actions AGENCY:

    Commodity Futures Trading Commission.

    ACTION:

    Notice of proposed rulemaking.

    SUMMARY:

    The Commodity Futures Trading Commission (“CFTC” or “Commission”) is proposing technical amendments to its regulations that govern registration and review of exchange disciplinary, access denial or other adverse actions. The amendments would integrate existing advisory guidance and the amendments to part 9 would also incorporate swap execution facilities (“SEFs”) and update provisions currently applicable to designated contract markets (“DCMs”). The proposal revises existing rules to delete numerous cross-references to previously deleted regulations and adds citations to applicable parallel provisions for SEFs and DCMs. Additionally, the proposal addresses the publication of final disciplinary and access denial actions taken by the SEFs and DCMs on their exchange Web sites.

    DATES:

    Comments must be received on or before March 24, 2017.

    ADDRESSES:

    You may submit comments, identified by RIN 3038-AE15, by any of the following methods:

    CFTC Web site: https://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 method.

    All comments must be submitted in English, or if not, accompanied by an English translation. Comments will be posted as received to 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 (“FOIA”), a petition for confidential treatment of the exempt information may be submitted according to the procedures established in Commission regulation 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 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 the rulemaking 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 FOIA.

    FOR FURTHER INFORMATION CONTACT:

    Rachel Berdansky, Deputy Director, Division of Market Oversight, at 202-418-5429 or [email protected]; or David Steinberg, Associate Director, Division of Market Oversight, at 202-418-5102 or [email protected], in each case, at the Commodity Futures Trading Commission, Three Lafayette Centre, 1151 21st Street NW., Washington, DC 20581.

    SUPPLEMENTARY INFORMATION:

    Table of Contents I. Background A. Description of Part 9 B. DCM Final Rules and Part 8 Removal C. SEF Final Rules II. Proposed Amendments to Regulations A. Introduction B. Part 9 1. Commission Regulation 9.1: Scope of Rules 2. Commission Regulation 9.2: Definitions 3. Commission Regulation 9.4: Filing and Service; Official Docket 4. Commission Regulation 9.11: Form, Contents and Delivery of Notice of Disciplinary or Access Denial Action 5. Commission Regulation 9.12: Effective Date of Disciplinary or Access Denial Action 6. Commission Regulation 9.13: Publication of Notice 7. Commission Regulation 9.24: Petition for Stay Pending Review 8. Commission Regulation 9.31: Commission Review of Disciplinary or Access Denial Action on Its Own Motion 9. Minor Changes to Commission Regulations 9.3, 9.4, 9.8, and 9.9 C. Part 3 1. Commission Regulation 3.31: Deficiencies, Inaccuracies, and Changes To Be Reported III. Related Matters A. Regulatory Flexibility Act B. Paperwork Reduction Act C. Cost-Benefit Considerations IV. Request for Comments I. Background A. Description of Part 9

    On December 20, 1978, the Commission adopted part 9 rules relating to the review of exchange disciplinary, access denial, or other adverse actions.1 The rules govern the process and procedures by which the Commission may review exchange disciplinary and access denial actions, detailing the appellate process under which such review will be instituted and conducted in cases where a person applies to the Commission for review. In addition to setting forth procedures and standards governing filing and service, motions, and settlement, the rules also cover the process by which exchanges must provide notice of the final disciplinary action to the subject of the disciplinary action and to the Commission, as well as the publication of such notice. As discussed below, DCMs and SEFs are already required to comply with the part 9 regulations.

    1 43 FR 59343 (Dec. 20, 1978).

    B. DCM Final Rules and Part 8 Removal

    In June 2012, the Commission implemented Core Principles and Other Requirements for Designated Contract Markets (“DCM Final Rules”).2 Commission regulation 38.2 of the DCM Final Rules provides that DCMs shall comply with all applicable regulations under Title 17 of the Code of Federal Regulations, except for certain exempt provisions.3 Part 9 is not included in the list of exempt provisions. Furthermore, part 9 applies to DCMs by defining “exchange” in Commission regulation 9.2(c) for purposes of the rules as any board of trade which has been designated as a contract market.4

    2 77 FR 36612 (June 19, 2012).

    3 77 FR 36697 (June 19, 2012); 17 CFR 38.2.

    4 17 CFR 9.2(c).

    Additionally, in the DCM Final Rules, the Commission adopted regulations in “Subpart N—Disciplinary Procedures” of part 38 to amend the disciplinary procedures applicable to DCMs.5 Several of the regulations adopted in subpart N of part 38 are similar to the text of the disciplinary procedures found in former part 8—exchange procedures for disciplinary, summary, and membership denial actions.6 In order to avoid confusion from the regulations containing two sets of disciplinary procedures for DCMs, the Commission removed part 8 from the regulations.7 As a result of this removal, the current part 9 rules, which contain cross-references to part 8 throughout, are being updated in this rulemaking (“NPRM” or “Proposal”) to instead cite to parallel provisions now contained in part 37 for SEFs and part 38 for DCMs.8

    5 17 CFR 38.700 through 38.712.

    6 43 FR 41950 (Sept. 19, 1978); 17 CFR 38.700 through 38.712. For example, part 8 contained regulations 8.05 (Enforcement staff); 8.08 (Disciplinary committee); and 8.20 (Final decision). Subpart N of part 38 has corresponding provisions: 38.701 (Enforcement staff); 38.702 (Disciplinary panels); and 38.709 (Final decisions).

    7 Although Commission regulation 38.2 of the DCM Final Rules specifies that DCMs are not required to comply with part 8, the Commission removed part 8 to avoid any confusion resulting from the regulations containing two sets of exchange disciplinary procedures as part of the Adaption of Regulations to Incorporate Swaps Rulemaking. 17 CFR 38.2; and removal of part 8 at 77 FR 66304 (Nov. 2, 2012).

    8 17 CFR parts 9, 37, and 38. For example, in Commission regulation 9.2(k) the definition of “summary action” cites to Commission regulations 8.17(b), 8.25, and 8.27 which were removed along with the entirety of part 8. Proposed Commission regulation 9.2(k) will instead cite to part 37, appendix B, Core Principle 2, paragraphs (a)(10)(vi), (a)(13), and (a)(14) [for SEFs] and part 38, appendix B, Core Principle 13, paragraphs (a)(4), (a)(6), and (a)(7) [for DCMs].

    C. SEF Final Rules

    The Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank Act”) repealed some sections of the Commodity Exchange Act (“CEA” or “Act”), amended others, and established new categories of Commission registrants, including SEFs.9 Pursuant to the Dodd-Frank Act, the Commission adopted new rules in part 37 Core Principles and Other Requirements for Swap Execution Facilities (“SEF Final Rules”).10 The Commission notes that since the advent of the Dodd-Frank Act's new statutory framework for regulating swaps, it adopted a rulemaking (Adaptation of Regulations to Incorporate Swaps) implementing conforming changes to existing regulations to clarify those pre-Dodd-Frank provisions, including those applicable to SEFs.11 Part 9, however, which also applies to SEFs, was not addressed in this rulemaking.12 As such, in regulation 37.2 of the SEF Final Rules, the Commission specified that SEFs shall comply with the requirements of part 9.13 Accordingly, for clarity purposes, this NPRM amends certain part 9 definitions and language which have not yet been addressed, to better integrate them into the post-Dodd-Frank regulatory regime.

    9See generally Dodd-Frank Wall Street Reform and Consumer Protection Act, Public Law 111-203, 124 Stat. 1376 (2010) available at http://www.cftc.gov/LawRegulation/OTCDERIVATIVES/index.htm; see also Dodd-Frank Act section 721(a)(50), adding CEA section 1a(50), codified at 7 U.S.C. 1a(50).

    10 78 FR 33476 (June 4, 2013).

    11 77 FR 66288 (Nov. 2, 2012).

    12Id.

    13See 78 FR 33476, 33479 (June 4, 2013); 17 CFR 37.2.

    II. Proposed Amendments to Regulations A. Introduction

    This Proposal contains amendments of three different types: Ministerial, accommodating, and substantive. Most of the proposed amendments are purely ministerial—for instance, some of the proposed changes would update definitions in Commission regulation 9.2 to conform them to the CEA as amended by the Dodd-Frank Act as well as other sections of the Commission's regulations. Furthermore, as noted above, the citations to part 8 in the current part 9 rules would be replaced with the appropriate citations to regulations, guidance, and acceptable practices from parts 37 and 38.14 In a similar vein, one of the proposed amendments to Commission regulation 9.1 would remove the reference to section 5a(a)(11) of the CEA, since this section was eliminated by the passage of the Commodity Futures Modernization Act of 2000 (“CFMA”).15

    14 17 CFR parts 37 and 38.

    15 Public Law 106-554, 114 Stat. 2763, sec. 110 (2000).

    The proposed accommodating amendments do not impose any new obligations on SEFs; rather they clarify that SEFs, in addition to DCMs, must comply with part 9.16 This clarification would be accomplished by updating part 9's definition of “exchange” to include SEFs and to add swaps to language discussing the types of transactions from which an exchange disciplinary action might arise. These amendments are more than ministerial because they require some judgment in drafting. Another example of an accommodating amendment is the proposed formal codification of the part 3 and part 9 advisories and the Commission's delegation to the National Futures Association (“NFA”) of the responsibility to receive notice of final exchange disciplinary and access denial actions, in which the Commission encouraged exchanges to comply with the notice requirements in Commission regulation 9.11 (“9.11 notice”) by filing with the NFA.17 Additionally, the proposed amendment to Commission regulation 9.11(b)(3)(ii) would codify the clarification contained in the Part 9 Advisory that an exchange indicate in its notice of disciplinary or access denial actions whether the violation underlying the notice resulted in financial harm to any customers.18

    16 17 CFR part 9, §§ 37.2 and 38.2.

    17 64 FR 39913 (July 23, 1999) (“Part 9 Delegation”); 64 FR 39912 (July 23, 1999) (“Part 3 Advisory”); 64 FR 39915 (July 23, 1999) (“Part 9 Advisory”). As discussed more fully below in the preamble, the Part 9 Advisory permits exchanges to file 9.11 notices of final disciplinary or access denial actions with the Commission or with the NFA. The Part 9 Delegation gives the NFA authority to receive and process these notices on behalf of the Commission. Finally, the Part 3 Advisory relieves registrants and registrant applicants from Commission regulation 3.31 Form 3-R reporting obligations in instances when the information to be reported is solely the result of an exchange disciplinary or access denial action.

    18 64 FR 39917 (July 23, 1999).

    The remaining proposed amendments are generally substantive in that they include an additional element required to be included in the contents of a 9.11 notice and a material revision to Commission regulation 9.13 which currently requires exchanges to post notice of final exchange disciplinary action on the exchange's premises.19 First, as part 9 pertains to both DCMs and SEFs which offer a number of varied products for trading, the proposed amendment to Commission regulation 9.11 would require exchanges to include the type of product (as applicable) involved in the adverse action in the contents of the final notice. Second, the proposed amendment to Commission regulation 9.13 would remove the requirement to post notice on the exchange's premises and instead require the exchange to post the notice on the exchange's Web site. Finally, as addressed above in the discussion of accommodating amendments, the Commission is proposing to codify the Part 9 Advisory. By specifying in the rule text that exchanges provide notice of final exchange disciplinary and access denial actions directly to the NFA, the Commission is eliminating the option for exchanges to file notice with the Commission.

    19 17 CFR 9.11 and 9.13.

    B. Part 9 1. Commission Regulation 9.1: Scope of Rules

    Commission regulation 9.1 governs the review by the Commission, pursuant to section 8c of the CEA, of any suspension, expulsion, disciplinary or access denial action, or other adverse action by an exchange.20 As noted above, the Commission is proposing a ministerial amendment to regulation 9.1(b)(1) by removing the reference to section 5a(a)(11) of the CEA, since this section was eliminated by the passage of the CFMA.21

    20 7 U.S.C. 12c.

    21 Public Law 106-554, 114 Stat. 2763, sec. 110 (2000).

    Commission regulation 9.1(b)(2) provides an exclusion from the part 9 regulations with respect to the Commission's review of summary actions imposed by an exchange for a minor penalty for the violation of exchange rules relating to decorum, attire, or timely submission of accurate records required for clearing or verifying each day's transactions or similar activities. The Commission proposes to amend regulation 9.1(b)(2) by replacing the reference to regulation 8.27 with a reference to part 37 guidance pertaining to violations of rules regarding timely submission of records and part 38 guidance pertaining to summary fines for violations of rules regarding timely submission of records, decorum, or other similar activities.22

    22 The proposed references would be to (i) part 37 guidance, 17 CFR part 37, appendix B, Core Principle 2, paragraph (a)(13); and (ii) part 38 guidance, 17 CFR part 38, appendix B, Core Principle 13, paragraph (a)(6).

    Commission regulation 9.1(b)(3) provides an exclusion from the part 9 regulations concerning any exchange action arising from a claim, grievance, or dispute involving cash market transactions which are not a part of, or directly connected with, any transaction for the purchase, sale, delivery or exercise of a commodity for future delivery, or a commodity option. The Commission proposes to amend regulation 9.1(b)(3) by inserting “swap” at the end of the paragraph to account for swap transactions on a DCM or on a SEF as a result of the Dodd-Frank Act.23 As noted above, the addition of “swap” language is a conforming amendment as it requires some judgment as to its inclusion.

    23 Section 723(a)(3) of the Dodd-Frank Act added section 2(h)(8) of the CEA to require, among other things, that execution of swaps subject to the clearing requirement of section 2(h)(1) of the CEA must occur on either a DCM or a SEF.

    Commission regulation 9.1(c) provides for the applicability of part 9 rules to matters filed with the Commission after August 6, 1987. In 1987, the part 9 rules in place at the time were superseded and Commission regulation 9.1(c) governed whether an existing matter would be subject to the pre- or post-1987 part 9 rules. Such determination is no longer necessary because no pre-1987 matters are pending before the Commission. As a result, the Proposal seeks to remove text from Commission regulation 9.1(c) that governs whether a matter would be subject to the pre- or post-1987 part 9 rules.

    2. Commission Regulation 9.2: Definitions

    The Commission proposes to revise the definition of four terms in regulation 9.2. First, the Commission proposes to revise the definition of “disciplinary action” in regulation 9.2(b) by deleting the reference to regulation 8.03(i). The Commission also proposes to remove the reference to “member of an exchange” and insert “person” in its place. The Commission believes it is necessary to expand the “disciplinary action” definition to account for instances where an exchange imposes sanctions against a person that is not a member of the exchange. The Commission's proposal to include “person” in the “disciplinary action” definition is consistent with the statutory language found in Core Principle 2 for DCMs and section 8c(b) of the CEA, as amended by the Dodd-Frank Act.24

    24 Section 735 of the Dodd-Frank Act amends section 5 of the CEA, including DCM Core Principle 2. Paragraph (B)—Capacity of Contract Market—of Core Principle 2 specifically requires that the board of trade shall have the capacity to detect, investigate, and apply appropriate sanctions to any person that violates any rule of the contract market. Section 8c(b) of the CEA, 7 U.S.C. 12c(b), provides that the Commission may, in its discretion and in accordance with such standards and procedures as it deems appropriate, review any decision by an exchange whereby a person is suspended, expelled, disciplined, or denied access to the exchange. In addition, section 8c(b) of the CEA provides that the Commission may, in its discretion and upon application of any person who is adversely affected by any other exchange action, review such action.

    Second, the Commission proposes to amend the definition of “exchange” in regulation 9.2(c) to include SEFs. This change would make clear that the Commission has the discretion to review adverse actions imposed by a SEF and clarify that SEFs are subject to all of the part 9 requirements.25

    25Id. The Commission notes that regulation 37.2 requires, among other things, that a SEF shall comply with the part 9 regulations. 17 CFR 37.2. Additionally, footnote 40 of the SEF Final Rules states “the term `exchange' used in part 9 of the Commission's regulations should be interpreted to include a SEF for purposes of applying the requirements of part 9 to a SEF.” 78 FR 33476, 33479 (June 4, 2013).

    Third, the Commission proposes to amend regulation 9.2(f) to expand the definition of “member of an exchange” to include any person who has trading privileges on an exchange. This change is necessary to conform the part 9 definition of “member” to the meaning set forth in section 1a(34) of the CEA and in § 1.3(q) of the Commission's regulations.26

    26 Section 1a(34) of the CEA provides that the term “member” means, among other things, an individual, association, partnership, corporation, or trust having trading privileges on the registered entity. See also 17 CFR 1.3(q). By amending the definition of “member of an exchange” to include all persons with trading privileges, the Commission is clarifying that the appellate process and Commission review, as defined in part 9, would apply to all persons with trading privileges.

    Fourth, the Commission proposes to amend the definition of “summary action” in regulation 9.2(k) by adding references to part 37 for SEFs and replacing the part 8 references with the relevant provisions from part 38.27

    27 Specifically, the proposed definition of “summary action” means a disciplinary action resulting in the imposition of a penalty on a person for violation of rules of the exchange permitted under the provisions of part 37, appendix B, Core Principle 2, paragraph (a)(10)(vi) or part 38, appendix B, Core Principle 13, paragraph (a)(4) (penalty for impeding progress of hearing); part 37, appendix B, Core Principle 2, paragraph (a)(14) or part 38, appendix B, Core Principle 13, paragraph (a)(7) (emergency disciplinary actions); part 37, appendix B, Core Principle 2, paragraph (a)(13) (summary fines for violations of rules regarding timely submission of records); or part 38, appendix B, Core Principle 13, paragraph (a)(6) (summary fines for violations of rules regarding timely submission of records, decorum, or other similar activities).

    3. Commission Regulation 9.4: Filing and Service; Official Docket

    Commission regulation 9.4(a) describes the procedures for filing any document required by part 9 to be filed with the Commission Procedures Clerk, including proof of filing and proof of service. To ease the burden on parties, the Commission proposes to amend regulation 9.4(a) by replacing the requirement of a formal affidavit of service with the requirement that parties submit a signed “statement of service” that: (1) Confirms that service has been made; (2) identifies each person served; (3) sets forth the date of service; and (4) recites the manner of service. The less formal and less burdensome statement of service effectively serves the same purpose as an affidavit of service (i.e., promoting and assuring the full exchange of information among the parties by requiring service of submissions on all of the parties in the proceeding). Additionally, the Commission proposes to amend regulation 9.4(b)(1) to reduce the burden on parties by requiring an original and one copy (instead of two copies) of all documents filed with the Commission.

    4. Commission Regulation 9.11: Form, Contents and Delivery of Notice of Disciplinary or Access Denial Action

    Commission regulation 9.11(a) requires that whenever an exchange makes a decision, pursuant to which disciplinary action or access denial to be imposed has become final, the exchange must provide written notice of such action to the person against whom the action was taken and to the Commission within 30 days thereafter. In 1999, the Commission delegated authority to the NFA to receive and process exchange disciplinary and access denial information (“Part 9 Delegation”).28 Consequently, the NFA currently serves as the official custodian of records for exchange disciplinary filings. The Commission intends to again delegate authority to the NFA, via an updated order to be published concurrently with the final rule, to receive and process exchange disciplinary and access denial information. The Commission proposes to issue an updated order that includes specific duties delegated to the NFA, such as: (1) To process exchange disciplinary information; (2) to provide the Commission with access to a report summarizing all recent exchange disciplinary information; (3) to assist the Commission in enforcing exchange compliance with regulation 9.11 filing requirements; and (4) to serve as the official custodian of a database containing records of the exchanges' disciplinary and access denial actions.

    28 64 FR 39913 (July 23, 1999). The NFA created the Background Affiliation Status Information Center (“BASIC”) system through which the public can access information pertaining to the types of violations committed, penalties imposed, the effective date of the action, and, in some cases, the text from the exchange's decision.

    In 1999, concurrent with the Part 9 Delegation, the Commission published an advisory permitting exchanges to file 9.11 notices with the Commission or the NFA (“Part 9 Advisory”).29 While permitting filing with the Commission, the Part 9 Advisory encourages exchanges to file the required notice with the NFA and to do so electronically as the Commission believes such filing to be faster and more cost-effective for both the exchanges and the NFA. In an effort to codify the Part 9 Advisory and formally replace the regulation 9.11 requirement that written notice be provided to the Commission, the Commission proposes to amend regulation 9.11 to require that notice be provided to the NFA via the NFA's BASIC system and eliminate the option of filing the notice with the Commission.

    29 64 FR 39915 (July 23, 1999).

    Additionally, the Commission proposes to amend regulation 9.11(a) by replacing the reference to regulation 8.27 with a reference to part 38.30

    30 Specifically, the reference to Commission regulation 8.27 would be replaced with a reference to part 38, appendix B, Core Principle 13, paragraph (a)(6) (summary fines for violations of rules regarding timely submission of records, decorum, or other similar activities) for DCMs. Under the current rule and in the proposed rule, DCMs would not be required to report summary fines with respect to violations related to decorum or attire. Decorum or attire violations do not apply to SEFs. Accordingly, SEFs are required to report all disciplinary and access denial actions to BASIC.

    Commission regulation 9.11(b) sets forth the content that must be included in the disciplinary notice. The Commission proposes ministerial and conforming amendments to regulation 9.11(b) by inserting references to part 37, replacing the references to part 8 with references to part 38, codifying the Part 9 Advisory clarification that the contents of the notice include whether the violation resulted in customer harm, and specifying the content of notices provided to: (1) The person against whom the action was taken and (2) the NFA. Additionally, for the sake of clarity, the Commission is proposing to renumber regulation 9.11(b) by assigning separate paragraphs 9.11(b)(1) to specify the notice to be provided by DCMs, 9.11(b)(2) to specify the notice to be provided by SEFs, and 9.11(b)(3) to detail the list of items to be included in the contents of the notice.

    Furthermore, the Commission is proposing a substantive amendment to regulation 9.11(b)(3)(ii) by adding an additional element required to be included in the contents of the notice. Because part 9 pertains to both DCMs and SEFs, which offer a number of varied products for trading, the Commission believes that requiring exchanges to detail the type of product (as applicable) involved in the adverse action as part of the 9.11 notice will provide the Commission, market participants, the public, and other exchanges with greater transparency concerning where market abuses originate and whether the abuses are concentrated among certain product types.31 Specifically, proposed Commission regulation 9.11(b) provides that for purposes of part 9, the notice of disciplinary action or access denial action provided to the person against whom the action was taken may be a copy of a decision which accords with part 37 and part 38 regulations and guidance.32 Alternatively, the notice provided to the person against whom the action was taken must include: (i) The name of the individual against whom the action was taken; (ii) a statement of the reasons for the action, detailing the exchange product which was involved, as applicable, and whether the violation that resulted in the action also resulted in financial harm to any customers together with a list of any rules which the individual was charged with having violated or which otherwise serve as the basis of the action; (iii) a statement of the exchange's conclusions and findings regarding each violation charged or, in the event of a settlement, a statement specifying those rule violations which the exchange believes were committed; (iv) the terms of the action; (v) the date the action was taken and the date the action will become effective; and (vi) a statement informing the party subject to the action of the availability of Commission review pursuant to section 8c of the CEA. Additionally, the Commission proposes to amend regulation 9.11(b) by requiring that notice provided to the NFA include items (i)-(v) immediately above.

    31 For example, a product trading on a DCM might be specified as a July 2016 Eurodollar future; while a product trading on a SEF may be a CDX North American High Yield Series 26 5 year.

    32 The notice required by Commission regulation 9.11 may be satisfied by providing a copy of the final decision in accordance with part 37, appendix B, Core Principle 2, paragraph (a)(9) or part 38, appendix B, Core Principle 13, paragraph (a)(3) (settlement offers); Commission regulations 37.206(d) or 38.708 (decisions); or part 37, appendix B, Core Principle 2, paragraph (a)(11)(iv) or part 38, appendix B, Core Principle 13, paragraph (a)(5)(iv) (appeal decisions).

    Commission regulation 9.11(c) sets forth the delivery process that must be followed when providing notice of disciplinary action or access denial action to the person who was the subject to the action, and the filing process that must be followed when providing notice of the action to the Commission. The Commission proposes to amend regulation 9.11(c) by deleting instructions for filing notice with the Commission and replacing them with instructions for filing notice with the NFA. Specifically, proposed Commission regulation 9.11(c) provides that filing of the notice with the NFA is accomplished when an authorized exchange employee verifies the accuracy of the information entered into BASIC.

    Commission regulation 9.11(d) sets forth the effect of delivery and filing by mail. The Commission proposes to amend regulation 9.11(d) by deleting instructions related to filing notices with the Commission by mail since proposed regulation 9.11(c) calls for notice filings be made to the NFA via BASIC instead of with the Commission by mail.

    Commission regulation 9.11(e) sets forth the procedures for certifying the notice provided pursuant to Commission regulation 9.11. The Commission proposes to amend regulation 9.11(e) by adding instructions for the certification of notice filed with the NFA. Specifically, proposed Commission regulation 9.11(e) provides that notice filed with the NFA is deemed certified when an authorized exchange employee verifies the accuracy of the information entered into BASIC.

    5. Commission Regulation 9.12: Effective Date of Disciplinary or Access Denial Action

    Pursuant to Commission regulation 9.12(a), a disciplinary action or access denial imposed by an exchange will not become effective until at least 15 days after the written notice prescribed by Commission regulation 9.11 is delivered to the person disciplined or denied access. However, an exchange may cause a disciplinary action to become effective prior to that time under certain circumstances that are identified in Commission regulation 9.12(a)(1)-(a)(4). The Commission proposes to amend regulation 9.12(a)(1)-(a)(4) by adding references to part 37 and replacing references to part 8 with references to part 38.33

    33 Specifically, the Commission proposes to amend regulation 9.12(a)(1) by adding a reference to part 37, appendix B, Core Principle 2, paragraph (a)(14) (emergency disciplinary actions) and replacing the reference to regulation 8.25 with a reference to Part 38, appendix B, Core Principle 13, paragraph (a)(7) (emergency disciplinary actions). In regulation 9.12(a)(2), the Commission proposes to add a reference to part 37, appendix B, Core Principle 2, paragraph (a)(10)(vi) (hearings) and replace the reference to regulation 8.17(b) with a reference to part 38, appendix B, Core Principle 13, paragraph (a)(4) (hearings). The Commission proposes to amend regulation 9.12(a)(3) by adding a reference to part 37, appendix B, Core Principle 2, paragraph (a)(13) (summary fines for violations of rules regarding timely submission of records) and replacing the reference to regulation 8.27 with a reference to part 38, appendix B, Core Principle 13, paragraph (a)(6) (summary fines for violations of rules regarding timely submission of records, decorum, or other similar activities).

    Pursuant to Commission regulation 9.12(b), an exchange that determines that a disciplinary action will become effective prior to the expiration of 15 days after written notice must notify the person disciplined in writing either personally or by telegram or other means of written telecommunication. The exchange must also immediately notify the Commission by telegram or other means of written telecommunication. In order to modernize regulation 9.12(b), the Commission proposes to replace references to “telegram or other means of written telecommunication” with the term “email” and provide a Commission email address where notice of the early effective date can be sent by the exchange.

    6. Commission Regulation 9.13: Publication of Notice

    Pursuant to Commission regulation 9.13, whenever an exchange suspends, expels or otherwise disciplines, or denies any person access to the exchange, it must make public its findings by disclosing at least the information contained in the notice required by Commission regulation 9.11(b). An exchange also must make such findings public as soon as the disciplinary action or access denial action becomes effective in accordance with the provisions of Commission regulation 9.12 by posting a notice in a conspicuous place on its premises to which its members and the public regularly have access for a period of five consecutive business days. The exchange must also maintain and make available for public inspection a record of the information contained in the disciplinary or access denial notice.

    The Commission notes that regulation 9.13 was published in 1987, at a time when futures trading occurred primarily in person in the exchange's trading pits and on exchange premises. Therefore, posting notice of disciplinary action or access denial action on exchange premises, where it could be readily viewed by market participants, was an effective form of publicizing the disciplinary action. Today, most trading on DCMs and some of the trading on SEFs occurs by electronic execution. While some SEF trading is executed via a voice component, both electronic and voice execution occurs between market participants that are in geographically distinct locations and generally do not set foot on exchange premises. Consequently, posting a notice of disciplinary action on the premises of an exchange does little to publicize a disciplinary action. In an effort to modernize Commission regulation 9.13, and to provide better notice of a disciplinary action or an access denial action, the Commission proposes to amend regulation 9.13 to require such notice be posted on an exchange's Web site to which its members, market participants, and the public regularly have access.34 In addition, to better inform market participants and maintain a public record of disciplinary action taken by an exchange, the Commission proposes to amend regulation 9.13 to require that such notice of a disciplinary action or an access denial action be maintained and readily available on an exchange's Web site.35 As a result, the existing requirement to maintain and make available for public inspection a record of the information contained in the disciplinary or access denial notice would be eliminated.

    34 The Commission acknowledges that many DCMs have already adopted more modern methods to publicize notices of disciplinary action. For example, the CME Group DCMs (Chicago Board of Trade (“CBOT”), Chicago Mercantile Exchange (“CME”), Commodity Exchange, Inc., (“COMEX”), and New York Mercantile Exchange, Inc. (“NYMEX”)) and ICE Futures U.S. notify subscribers of exchange disciplinary postings via email. The Commission also notes that the proposed amendment generally tracks the Securities and Exchange Commission's (“SEC”) standards for Release of Disciplinary Complaints, Decisions and Other Information in Financial Industry Regulatory Authority, Inc. (“FINRA”) Rule 8313, in which FINRA, with SEC approval, has established its standard for releasing to the public a copy of FINRA issued disciplinary complaints, decisions, and other disciplinary information. See FINRA Rule 8313 “Release of Disciplinary Complaints, Decisions and Other Information,” available at http://finra.complinet.com/en/display/display_main.html?rbid=2403&element_id=3892. See also SEC Release No. 34-69825; File No. SR-FINRA-2013-018 (June 21, 2013).

    35 Some DCMs currently maintain records of disciplinary action on their Web sites. For example, CBOE Futures Exchange, LLC maintains a disciplinary decision database on its Web site that allows the public to review disciplinary decisions dating back to 2012. The Commission notes that in the securities industry, the New York Stock Exchange maintains disciplinary notices as far back as 1972.

    The Commission recognizes that NFA BASIC presently acts as the central repository of all disciplinary action taken by DCMs and SEFs. However, such disciplinary information cannot be queried by a specific exchange. In general, the Commission believes that greater access to exchange disciplinary actions provides valuable guidance and information to market participants and potential market participants. Also, maintaining disciplinary actions on an exchange's public Web site can serve to further deter and prevent future misconduct and to improve overall compliance among market participants. In addition, market participants may use such information to educate themselves as to compliance matters, potential violations and related sanctions, as well as to revise their own compliance procedures involving similar business practices. Further, any market participant facing allegations of rule violations may access an exchange's existing disciplinary decisions to gain greater insight on related facts and sanctions. Finally, in an effort to enhance access to disciplinary information, the Commission anticipates that upon the effective date of the final part 9 rules, it will include links on its SmartCheck Web site to each exchange's Web site for posting notice of disciplinary action or access denial action.36

    36 In November 2014, the CFTC launched the SmartCheck Web site. It connects investors to tools to check the registration, license, and disciplinary history of certain financial professionals. This collection of tools allows the responsible investor to confirm the credentials of investment professionals, uncover any past disciplinary history, and stay ahead of scam artists with news and alerts.

    7. Commission Regulation 9.24: Petition for Stay Pending Review

    Commission regulation 9.24 provides the procedures that a person disciplined or denied access by an exchange must follow in the event that a person petitions the Commission to stay a disciplinary or access denial action. The Commission proposes to amend regulation 9.24(a)(2) by adding a reference to part 37 and replacing the reference to part 8 with a reference to part 38.37 In addition, the Commission proposes to remove the reference to regulation 8.26, which provided for emergency action hearing procedures, from regulation 9.24(a)(2), as the part 37 and 38 emergency disciplinary action guidance (cited above) provides for emergency action hearing procedures.

    37 Specifically, the Commission proposes to add a reference to part 37, appendix B, Core Principle 2, paragraph (a)(14) (emergency disciplinary actions) and replace the reference to regulation 8.25 with a reference to part 38, appendix B, Core Principle 13, paragraph (a)(7) (emergency disciplinary actions).

    8. Commission Regulation 9.31: Commission Review of Disciplinary or Access Denial Action on Its Own Motion

    Commission regulation 9.31(a) permits the specified Divisions at the Commission to request that an exchange file the record of an exchange proceeding and other documents applicable to an exchange proceeding with such Divisions, upon review of the exchange notice specified in Commission regulation 9.11, in instances where the person disciplined or denied access by the exchange has not appealed the exchange decision to the Commission. The Commission proposes to amend regulation 9.31(a) to delete the reference to the Division of Clearing and Risk from the first sentence. This provision had previously been amended to replace an earlier reference to the Division [of] Clearing and Intermediary Oversight with references to the Division of Swap Dealer and Intermediary Oversight and the Division of Clearing and Risk, as the successors to the Division of Clearing and Intermediary Oversight. Given the current organizational responsibilities of the Divisions, it is not necessary to include the Division of Clearing and Risk in Commission regulation 9.31(a). The Division of Clearing and Risk does not typically review notices of exchange disciplinary or access denial actions filed pursuant to Commission regulation 9.11 but instead reviews reports regarding rule enforcement activities and sanctions imposed against clearing members by registered derivatives clearing organizations pursuant to Commission regulations 39.17(a)(3) and 39.19(c)(4)(xi). The Commission also proposes to amend regulation 9.31(a) by adding language that requires the exchange to provide information to the requesting Division in the manner requested by the Division and to the person who is the subject of the disciplinary or access denial action in the manner prescribed by regulation 9.11(c).

    The Commission also proposes to amend regulation 9.31(b) to replace reference to the “Commission” with “NFA” in the second sentence. Such replacement is necessary to conform Commission regulation 9.31(b) to proposed changes to Commission regulation 9.11 that call for a notice of disciplinary or access denial action to be provided to the NFA.

    9. Minor Changes to Commission Regulations 9.3, 9.4, 9.8, and 9.9

    The Commission proposes to amend regulation 9.3 by correcting the referenced title of regulation 12.7 to read “Ex parte communications in reparation proceedings.” The Commission also proposes to amend regulations 9.4(b)(4) and (c)(3), 9.8(1), and 9.9(b)(3) and (4) to make them gender neutral.

    C. Part 3 1. Commission Regulation 3.31: Deficiencies, Inaccuracies, and Changes To Be Reported

    Pursuant to Commission regulation 3.31, an applicant or registrant as a futures commission merchant, retail foreign exchange dealer, swap dealer, major swap participant, commodity trading advisor, commodity pool operator, introducing broker, floor trader that is a non-natural person or leverage transaction merchant shall promptly correct any deficiency or inaccuracy in Form 7-R or Form 8-R which has rendered the information contained therein non-current or inaccurate. These corrections must be made on Form 3-R and filed in accordance with the form's instructions (such instructions presently require that Form 3-R be filed with the NFA).

    In 1999, concurrent with the Part 9 Delegation and Part 9 Advisory, the Commission issued an advisory pertaining to part 3 of the Commission's regulations (“Part 3 Advisory”). The Part 3 Advisory relieves registrants and applicants for registrant status from filing a Form 3-R, as required under Commission regulation 3.31, if the information to be reported is solely the result of an exchange disciplinary or access denial action.38 The Part 3 Advisory also explains that the Commission has: (1) Permitted exchanges (via the Part 9 Advisory) to file either electronic or written 9.11 notices with the NFA instead of the Commission and (2) delegated to the NFA (via the Part 9 Delegation) the duty to receive and process exchange disciplinary and access denial action information filed by the exchanges in accordance with Commission regulation 9.11. The Commission further explained that, as a result of the Part 9 Advisory and Part 9 Delegation, the NFA possesses the exchange disciplinary and access denial action information that registrants and applicants for registration status would otherwise be required to include in Form 3-R. Therefore, to avoid duplicative reporting, the Part 3 Advisory advises all individuals and entities subject to Commission regulation 3.31 that they are relieved from Commission regulation 3.31 reporting obligations resulting from an exchange disciplinary or access denial action and reported by an exchange pursuant to a 9.11 notice.

    38 64 FR 39912 (July 23, 1999).

    As discussed above, the Commission intends to again delegate authority to the NFA to receive and process exchange disciplinary and access denial information. Additionally, the Commission seeks to replace the Part 9 Advisory by proposing to amend regulation 9.11 to require that notice be provided to the NFA via the NFA's BASIC system. Similarly, the Commission intends to codify the Part 3 Advisory by proposing to amend the end of the first sentence of regulation 3.31(a)(1) with language that relieves the following applicants or registrants from filing a Form 3-R if the information to be reported is solely the result of an exchange disciplinary or access denial action: Futures commission merchants (“FCMs”), retail foreign exchange dealers (“RFEDs”), swap dealers (“SDs”), major swap participants (“MSPs”), commodity trading advisors (“CTAs”), commodity pool operators (“CPOs”), introducing brokers (“IBs”), floor traders (“FTs”) that are non-natural persons or leverage transaction merchants (“LTMs”).

    III. Related Matters A. Regulatory Flexibility Act

    The Regulatory Flexibility Act (“RFA”) requires that agencies consider whether the regulations they propose will have a significant economic impact on a substantial number of small entities and, if so, provide a regulatory flexibility analysis respecting the impact.39 The part 9 rules proposed by the Commission will impact all SEFs and DCMs. The Commission has previously established certain definitions of “small entities” to be used by the Commission in evaluating the impact of its regulations on small entities in accordance with the RFA.40 The Commission has also determined that DCMs and SEFs are not small entities for the purpose of the RFA.41

    39 5 U.S.C. 601 et seq.

    40See 47 FR 18618 through 18621 (Apr. 30, 1982).

    41See 47 FR 18618, 18619 (Apr. 30, 1982) (DCMs); 78 FR 33548 (June 4, 2013) (SEFs).

    The part 3 rules proposed herein would affect certain applicant or registrant FCMs, RFEDs, SDs, MSPs, CTAs, CPOs, IBs, FTs who are non-natural persons, and LTMs who would no longer have to file a Form 3-R if the information to be reported is solely the result of an exchange disciplinary or access denial action. The Commission has previously determined that FCMs, RFEDS, SDs, MSPs, CPOs, and LTMs are not small entities for purposes of the RFA.42 Therefore, the requirements of the RFA do not apply to those entities. With respect to CTAs, FTs, and IBs, the Commission has found it appropriate to consider whether such registrants should be deemed small entities for purposes of the RFA on a case-by-case basis, in the context of the particular Commission regulation at issue.43 As certain of these registrants may be small entities for purposes of the RFA, the Commission has considered whether this Proposal would have a significant impact on these registrants.

    42See Policy Statement and Establishment of Definitions of “Small Entities” for Purposes of the Regulatory Flexibility Act, 47 FR 18618 (Apr. 30, 1982) (FCMs and CPOs); Leverage Transactions, 54 FR 41068 (Oct. 5, 1989) (LTMs); Regulation of Off-Exchange Retail Foreign Exchange Transactions and Intermediaries, 75 FR 55410, 55416 (Sept. 10, 2010) (RFEDs); and Registration of Swap Dealers and Major Swap Participants, 77 FR 2613, 2620 (Jan. 19, 2012) (SDs and MSPs).

    43See 47 FR 18620 (Apr. 30, 1982) (CTAs); Registration of Floor Traders; Mandatory Ethics Training for Registrants; Suspension of Registrants Charged With Felonies, 58 FR 19575, 19588 (Apr. 15, 1993) (FTs); and Introducing Brokers and Associated Persons of Introducing Brokers, Commodity Trading Advisors and Commodity Pool Operators; Registration and Other Regulatory Requirements, 48 FR 35248, 35276 (Aug. 3, 1983) (IBs).

    The proposed amendment to Commission regulation 3.31 is technical and not substantive in nature. In 1999, the Commission published the Part 3 Advisory which relieved all applicants and registrants from filing a Form 3-R, as required under Commission regulation 3.31, if the information to be reported is solely the result of an exchange disciplinary or access denial action.44 As discussed in the preamble, the proposed amendment codifies the filing relief set forth in the Part 3 Advisory and would not impose any new regulatory obligations on any registrant, including CTAs, FTs, and IBs. The Commission does not, therefore, expect small entities to incur any additional costs as a result of this Proposal. Consequently, the Commission finds that no significant economic impact on small entities will result from this Proposal.

    44 64 FR 39912 (July 23, 1999).

    Accordingly, the Chairman, on behalf of the Commission pursuant to 5 U.S.C. 605(b), certifies that the proposed rules will not have a significant economic impact on a substantial number of small entities.

    B. Paperwork Reduction Act 1. Introduction

    The Paperwork Reduction Act of 1995 (“PRA”) imposes certain requirements on Federal agencies, including the Commission, in connection with their conducting or sponsoring any collection of information, as defined by the PRA.45 An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid control number issued by the Office of Management and Budget (“OMB”). This NPRM contains recordkeeping and reporting requirements that are collections of information within the meaning of the PRA.

    45 44 U.S.C. 3501 et seq.

    The Proposal contains provisions that would qualify as collections of information, for which the Commission has already sought and obtained control numbers from the OMB. The titles for these collections of information are “Part 38—Core Principles and Other Requirements for Designated Contract Markets” (OMB Control Number 3038-0052) and “Part 37—Core Principles and Other Requirements for Swap Execution Facilities” (OMB Control Number 3038-0074). If adopted, responses to these collections of information would be mandatory.

    As discussed below, the Commission is not seeking to amend information collections 3038-0052 or 3038-0074 because the Commission believes that the rule modifications proposed herein will not impose any new information collection requirements that require approval from OMB under the PRA. Accordingly, the Commission invites public comment on the accuracy of its estimate regarding the impact of proposed Commission regulation 9.11 on collections 3038-0052 and 3038-0074 and its determination that no additional recordkeeping or information collection requirements or changes to existing collection requirements would result from the Proposal.46

    46 For collection 3038-0052, see OMB Control No. 3038-0052, available at http://www.reginfo.gov/public/do/PRAOMBHistory?ombControlNumber=3038-0052. For collection 3038-0074, see OMB Control No. 3038-0074, available at http://www.reginfo.gov/public/do/PRAOMBHistory?ombControlNumber=3038-0074.

    2. Section 9.11 Amendments

    As discussed above, the proposed Commission regulation 9.11 amendments are primarily technical and not substantive in nature. Commission regulation 9.11 currently requires that whenever an exchange makes a decision, pursuant to which disciplinary action or access denial to be imposed has become final, the exchange must provide written notice of such action to the person against whom the action was taken and to the Commission within 30 days thereafter. Among the proposed amendments to regulation 9.11, the Commission is clarifying the existing rules to formally incorporate SEFs under the requirements and therefore include references to the part 37 SEF regulations.47

    47 17 CFR part 37. As explained earlier in the preamble, SEFs are already subject to the part 9 reporting requirements under regulation 37.2, in which the Commission specified that SEFs shall comply with the requirements of part 9.

    Furthermore, the Commission is proposing to add an additional element required to be included in the contents of the notice specifying which product type (as applicable) was involved in the adverse action. The Commission believes that by adding such additional element to the contents of the notice its impact on the burden would be de minimis. For example, to describe a product trading on a DCM, the notice might include the description, “July 2016 Eurodollar future;” while a product trading on a SEF may be a “CDX North American High Yield Series 26 5 year.” Additionally, as a result of the Commission's removal of part 8, the Commission is proposing to remove all cross-references in regulation 9.11 to the part 8 regulations and replace these references with applicable regulations, guidance, and acceptable practices from parts 37 and 38.48 Finally, in 1999, the Commission published the Part 9 Advisory permitting exchanges to file 9.11 notices with the Commission or with the NFA.49 In an effort to codify the Part 9 Advisory and formally replace the regulation 9.11 requirement that written notice be provided to the Commission, the Commission proposes to amend regulation 9.11 to require notice be provided to the NFA via the BASIC system.

    48 Removal of part 8 at 77 FR 66288, (Nov. 2, 2012); and 17 CFR parts 37 and 38.

    49 64 FR 39915 (July 23, 1999).

    3. Clarification of Collections 3038-0052 and 3038-0074

    The Commission notes that all DCMs and SEFs are already subject to the part 9 reporting requirements.50 First, part 9 applies to DCMs, by explicitly defining “exchange” in Commission regulation 9.2(c) for purposes of the rules as “any board of trade which has been designated as a contract market.” 51 Furthermore, former regulation 38.2, which was adopted by the Commission on August 10, 2001, specifically required DCMs to comply with part 9 (“2001 DCM Rulemaking”).52 In the 2001 DCM Rulemaking, the Commission requested an OMB control number for part 38 to account for the reporting requirements, including part 9.53 The text of Commission regulation 38.2 that specifically required DCMs to comply with part 9 was amended on June 19, 2012, and currently provides that DCMs shall comply with all applicable regulations under Title 17 of the Code of Federal Regulations, except for certain exempt provisions.54 Part 9 is not included in the list of exempt provisions. Accordingly, Commission regulation 38.2 still requires that DCMs comply with the part 9 rules, and therefore, the Commission regulation 9.11 reporting requirements. Since the proposed amendments to Commission regulation 9.11 are primarily technical, the Commission believes that these amendments would not impact the current burden estimates in the DCM 3038-0052 collection.

    50 17 CFR part 9 and 38.2 [DCMs]; 17 CFR 37.2 [SEFs].

    51 17 CFR 9.2(c).

    52 66 FR 42277 (August 10, 2001).

    53Id. at 42268.

    54 77 FR 36697 (June 19, 2012); 17 CFR 38.2.

    As noted above, SEFs are also subject to the part 9 reporting requirements.55 The pertinent reporting burden of Commission regulation 9.11 for SEFs is contained in Commission regulation 37.2, which was adopted on June 4, 2013.56 Among the applicable provisions with which SEFs must comply, Commission regulation 37.2 explicitly lists part 9.57 Because the proposed amendments to Commission regulation 9.11 are primarily technical, the Commission believes these amendments would not impact the current burden estimates in the SEF 3038-0074 collection.58

    55 17 CFR 37.2.

    56 78 FR 33476 (June 4, 2013).

    57 17 CFR 37.2.

    58Supra note 46.

    4. Information Collection Comments

    The Commission invites comment on any aspect of the proposed information collection requirements discussed above. Pursuant to 44 U.S.C. 3506(c)(2)(B), the Commission will consider public comments on such proposed requirements in: (1) Evaluating whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information will have a practical use; (2) evaluating the accuracy of the Commission's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) enhancing the quality, utility, and clarity of the information proposed to be collected; and (4) minimizing the burden of collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological information collection techniques.

    Copies of the submission from the Commission to OMB are available from the CFTC Clearance Officer, 1155 21st Street NW., Washington, DC 20581, (202) 418-5160 or from http://RegInfo.gov. Persons desiring to submit comments on the proposed information collection requirements should send those comments to: The Office of Information and Regulatory Affairs, Office of Management and Budget, Room 10235, New Executive Office Building, Washington, DC 20503, Attention: Desk Officer of the Commodity Futures Trading Commission; (202) 395-6566 (fax); or [email protected] (email). Please provide the Commission with a copy of submitted comments so that all comments can be summarized and addressed in the final rulemaking, and please refer to the ADDRESSES section of this rulemaking for instructions on submitting comments to the Commission. OMB is required to make a decision concerning the proposed information collection requirements between thirty (30) and sixty (60) days after publication of the Proposal in the Federal Register. Therefore, a comment to OMB is best assured of receiving full consideration if OMB (as well as the Commission) receives it within thirty (30) days of publication of the Proposal.

    C. Cost-Benefit Considerations 1. Introduction

    Section 15(a) of the CEA requires the Commission to consider the costs and benefits of its actions before promulgating a regulation under the CEA or issuing certain orders.59 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 the 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.

    59 7 U.S.C. 19(a).

    The Commission considers the costs and benefits associated with the proposed amendments, including updating the pre-existing regulatory framework to incorporate SEFs, removing references to part 8 of the Commission's regulations, and revising the reporting and notice requirements for DCMs and SEFs. The Commission compares the costs and benefits of this rulemaking against a baseline of the status quo, the current requirements under part 3 and part 9. As discussed more fully below, the Commission preliminarily believes that the only new cost that would be imposed by the Proposal is the requirement in Commission regulation 9.13 for DCMs and SEFs to publish and maintain disciplinary notices on their respective Web sites.

    2. Part 3 and Part 9 Technical Amendments

    As explained above, the proposed amendments to part 3 and part 9 are primarily technical in nature. The Commission believes that these technical amendments will not impose any new costs on DCMs, SEFs, or market participants. For example, among the proposed changes, the Commission is clarifying the definition of “exchange” to include SEFs and updating the references to part 8, which was removed by the Commission in 2012, to instead cite to parallel provisions now contained in parts 37 and 38.60 Furthermore, the proposed revisions to Commission regulations 3.31 and 9.11 codify existing reporting procedures which were already authorized by the Commission in the Part 3 Advisory and Part 9 Advisory.61 These proposed amendments do not substantively change the requirements that the Commission currently imposes on DCMs and SEFs.62 Rather, instead of providing the 9.11 notices to the Commission, as required under the current part 9 rules, proposed regulation 9.11 will instead instruct exchanges to provide the notices to the NFA, as is permitted as an alternative method of compliance under the Part 9 Advisory.63

    60 Removal of part 8 at 77 FR 66288 (Nov. 2, 2012); and 17 CFR parts 37 and 38. See, e.g., 17 CFR part 37 appendix B, Core Principle 2, paragraph (a)(13) and part 38, appendix B, Core Principle 13, paragraph (a)(6).

    61 Part 9 Advisory: 64 FR 39915 (July 23, 1999); Part 3 Advisory: 64 FR 39912 (July 23, 1999).

    62Supra note 46. As noted above in the PRA, the Commission believes the proposed substantive amendment to add an additional element required to be included in the contents of a 9.11 notice will not materially impact the costs imposed by this NPRM.

    63 17 CFR 9.11.

    There is also the ministerial benefit to codifying the Part 3 and Part 9 Advisories. Advisories are staff action and are not rules that have been promulgated by the Commission subject to public notice and comment. Thus, this rulemaking will achieve the benefit of codifying the Part 3 Advisory and Part 9 Advisory into rules.

    3. Summary of Proposed Amendments to Commission Regulation 9.13—Publication of Notice

    As discussed above, proposed Commission regulation 9.13 would require all DCMs and SEFs to maintain and make readily accessible final notices of exchange disciplinary and access denial actions on their Web sites.64 This new requirement would replace the existing requirement in Commission regulation 9.13 that exchanges publish the notice in a conspicuous place on the exchange's premises.

    64 17 CFR 9.13.

    a. Costs

    The Commission believes that posting final disciplinary and access denial notices to exchange Web sites will slightly increase the costs for DCMs and SEFs. The Commission notes that the additional costs incurred by DCMs and SEFs would be offset in part due to the proposed amendment in Commission regulation 9.13 that would remove the requirement of posting disciplinary and access denial notices on the premises of the respective DCM or SEF. In order to estimate the additional costs, the Commission queried the NFA's BASIC to determine the total number of disciplinary and access denial actions filed by DCMs in 2015. Because SEFs did not post any disciplinary or access denial actions to BASIC in 2015, the numbers below reflect the disciplinary and access denial actions filed by the 15 DCMs presently registered with the Commission and provide the basis for estimating the number of disciplinary and access denial actions for SEFs annually.65

    65 As of November 9, 2016, 10 summary fines had been assessed by a total of four SEFs. The notices for such summary fines have been posted to BASIC. Because the Commission did not have a complete year of data for 2016, the Commission used the 2015 numbers of disciplinary and access denial actions to calculate the costs.

    Total number of reported disciplinary and access denial actions in BASIC by all DCMs in 2015: 452.

    In order to estimate the costs for SEFs, the Commission calculated the average number of disciplinary and access denial actions filed by DCMs, excluding the four DCMs with the largest number of reported disciplinary and access denial actions.66 The Commission notes that SEFs are relatively new entities with significantly less volume and fewer participants than the four DCMs that reported the highest number of disciplinary and access denial actions.67 Therefore, the Commission preliminary believes that the average number of disciplinary and access denial actions reported by the 11 other DCMs in 2015 provide a more appropriate comparison with respect to estimating the number of disciplinary and access denial actions for SEFs annually. As the SEFs mature, in terms of the number of participants and volume, the Commission anticipates that the number of disciplinary and access denial actions may increase accordingly.

    66 The DCMs with largest number of reported disciplinary and access denial actions are: ICE Futures U.S., CME, NYMEX, and CBOT.

    67 78 FR 33476 (June 4, 2013). The SEF Final Rules implemented the SEF framework enacted by section 733 of the Dodd-Frank Act; 7 U.S.C. 7b-3.

    Total number of reported disciplinary and access denial actions in BASIC by DCMs in 2015, excluding the 4 DCMs with the largest number of reported actions: 88.

    Average number of reported disciplinary and access denial actions in BASIC per DCM in 2015, excluding the 4 DCMs with the largest number of reported actions: 8.

    Currently, there are a total of 23 registered SEFs with the Commission. The Commission estimates that each SEF would report at least eight disciplinary and access denial actions annually in BASIC for an aggregate total of 184 disciplinary and access denial actions for all SEFs per year (eight actions multiplied by 23 SEFs equals 184 actions). Thus, the total number of exchange disciplinary and access denial actions per year for all DCMs and SEFs is estimated to be 636 (184 actions for SEFs plus the 452 actions for DCMs equals 636 total actions per year). The Commission anticipates each DCM and SEF would spend an additional 15 minutes per disciplinary notice to post on the exchange's Web site above the current requirement of posting the notice on the exchange's premises. Accordingly, the aggregate new burden of Commission regulation 9.13 is estimated to be 159 hours per year for the 15 DCMs and 23 SEFs (15 minutes multiplied by 636 anticipated actions per year equals 159 burden hours).

    The Commission expects that a compliance officer employed by the exchange will be posting the disciplinary or access denial action notices to the exchange Web site. According to recent Bureau of Labor Statistics National Occupational Employment and Wage Estimates, the mean hourly wage of an employee under occupation code 13-1041, “Compliance Officers,” that is employed by the “Securities and Commodity Exchanges” industry is $46.01. Because DCMs and SEFs can be large, specialized entities that may engage employees with wages above the mean, the Commission has conservatively chosen to use a mean hourly wage of $50 per hour.68 Accordingly, the burden associated with posting the disciplinary notices on exchange Web sites will total approximately $7,950 per year for all of the 38 DCMs and SEFs, ($50 multiplied by the anticipated 159 burden hours equals $7,950 per year).69

    68 Bureau of Labor Statistics, Occupational Employment and Wages: 13-1041 Compliance Officers, (May 2014), available at http://www.bls.gov/oes/current/oes131041.htm.

    69 The Commission acknowledges that requiring exchanges to post final notices of disciplinary and access denial actions on their Web sites may necessitate additional bandwidth. The Commission anticipates that any increased costs due to added bandwidth would be insignificant in its calculation of the total annual burden associated with this Proposal.

    b. Benefits

    The Commission preliminarily believes that greater access to information regarding exchange disciplinary and access denial actions provides valuable guidance and information to exchange members, market participants, and the public. Releasing disciplinary information to the public can serve to deter and prevent future misconduct and to improve overall compliance standards in the futures and swaps industry. It also allows customers to consider member firms' and traders' disciplinary histories when considering whether to engage in business with them. In addition, firms may use such information to educate their traders and associated persons as to compliance matters, highlighting potential violations and related sanctions. Further, any firm or individual facing allegations of rule violations may access existing disciplinary decisions to gain greater insight on related facts and sanctions. The Commission believes that the added deterrence of publishing the disciplinary notices on the exchange Web sites and the enhanced investigative and educational benefits of making such information public will ultimately decrease the incidents of wrongdoing and market abuses which will benefit both market participants and the general public.

    c. Section 15(a) Factors

    As noted above, section 15(a) of the CEA requires the Commission to consider the effects of its actions in light of the following five factors:

    (1) Protection of market participants and the public. The Commission preliminarily believes that market participants and the public will benefit from the ministerial and conforming amendments proposed herein since they eliminate obsolete, vestigial provisions and references that otherwise could be construed to give rise to confusing inconsistencies between the Commission's regulations and the provisions of the CEA. Furthermore, the Commission preliminarily believes that the proposed substantive amendment to regulation 9.13, which would require exchanges to publish notice of final disciplinary and access denial actions on exchange Web sites, would increase transparency of exchange disciplinary actions and serve as a deterrence of future market abuses. These enhancements allow for operational efficiencies in oversight, increased deterrence from market abuses, and greater transparency of the exchange disciplinary process. Therefore, the Commission anticipates that the amendment to regulation 9.13 would result in improved protection of market participants and the public.

    (2) The efficiency, competitiveness, and financial integrity of the markets. The requirement that exchanges publish disciplinary notices and access denial actions on their Web site is intended to improve the operational efficiency, competitiveness and financial integrity of the futures and swaps markets by enabling the public and those who access the exchange Web site to be made aware of any disciplinary and access denial actions imposed by the exchange. As discussed above, the vast majority of trading no longer occurs in person on the exchange's premises. The Commission believes that the current requirement in regulation 9.13 of posting disciplinary and access denial actions on the exchange's premises provides little to no public notice of these actions. By publishing the notice on the exchange's Web site, the Commission believes that the efficiency, competitiveness and financial integrity of the markets would be bolstered by the deterrent effect achieved by posting the notice in a publicly accessible medium.

    (3) Price discovery. The Commission has not identified an impact on price discovery as a result of the proposed regulations, but seeks comment as to any potential impact. Will the proposed regulations impact, positively or negatively, the price discovery process?

    (4) Sound risk management practices. The Commission has not identified an impact on risk management practices as a result of the proposed regulations, but seeks comment as to any potential impact. Will the proposed regulations impact, positively or negatively, sound risk management practices?

    (5) Other public interest considerations. The Commission has not identified any other public interest considerations, but welcomes comment on whether this Proposal would promote public confidence in the integrity of derivatives markets by making notice of exchange disciplinary and access denial actions more readily available to the public. Will this Proposal impact, positively or negatively, any unidentified matter of interest to the public?

    d. Request for Comments

    The Commission seeks additional information regarding the costs and benefits of the Proposal. Beyond the specific questions interspersed throughout its discussion above, the Commission requests comment on all aspects of its consideration of costs and benefits, including: Identification and assessment of any costs and benefits not discussed therein; data and any other information to assist or otherwise inform the Commission's ability to quantify or qualitatively describe the benefits and costs of the proposed rules; and substantiating data, statistics, and any other information to support positions posited by commenters with respect to the Commission's consideration of costs and benefits. Commenters also may suggest other alternatives to the proposed approach where the commenters believe that the alternatives would be appropriate under the CEA and provide a superior cost-benefit profile.

    IV. Request for Comments

    The Commission requests comment on all aspects of the Proposal. Commenters are specifically encouraged to include any considerations related to the Commission's proposed notice and order delegating regulation 9.11 authority to the NFA.

    List of Subjects 17 CFR Part 3

    Administrative practice and procedure, Brokers, Commodity futures, Major swap participants, Reporting and recordkeeping requirements, Swap dealers.

    17 CFR Part 9

    Administrative practice and procedure, Commodity exchanges, Commodity futures.

    For the reasons stated in the preamble, the Commodity Futures Trading Commission proposes to amend 17 CFR chapter I as follows:

    PART 3—REGISTRATION 1. The authority citation for part 3 continues to read as follows: Authority:

    5 U.S.C. 552, 552b; 7 U.S.C. 1a, 2, 6a, 6b, 6b-1, 6c, 6d, 6e, 6f, 6g, 6h, 6i, 6k, 6m, 6n, 6o, 6p, 6s, 8, 9, 9a, 12, 12a, 13b, 13c, 16a, 18, 19, 21, and 23, as amended by Title VII of Pub. L. 111-203, 124 Stat. 1376.

    2. In § 3.31, revise paragraph (a)(1) to read as follows:
    § 3.31 Deficiencies, inaccuracies, and changes, to be reported.

    (a)(1) Each applicant or registrant as a futures commission merchant, retail foreign exchange dealer, swap dealer, major swap participant, commodity trading advisor, commodity pool operator, introducing broker, floor trader that is a non-natural person or leverage transaction merchant shall, in accordance with the instructions thereto, promptly correct any deficiency or inaccuracy in Form 7-R or Form 8-R that no longer renders accurate and current the information contained therein, with the exception of any change that requires withdrawal from registration under § 3.33 or any change resulting from an exchange disciplinary or access denial action. Each such correction shall be prepared and filed in accordance with the instructions thereto to create a Form 3-R record of such change.

    PART 9—RULES RELATING TO REVIEW OF EXCHANGE DISCIPLINARY, ACCESS DENIAL OR OTHER ADVERSE ACTIONS 3. The authority citation for part 9 is revised to read as follows: Authority:

    7 U.S.C. 1a, 2, 6b-1, 6c, 7, 7a-2, 7b-3, 8, 9, 9a, 12, 12a, 12c, 13b, 16a, 18, 19, 21.

    4. In § 9.1, revise paragraphs (b) and (c) to read as follows:
    § 9.1 Scope of rules.

    (b) Matters excluded. This part does not apply to and the Commission will not accept notices of appeal, or petitions for stay pending review, of:

    (1) Any arbitration proceeding, regardless of whether the proceeding involved a controversy between members of an exchange;

    (2) Except as provided in §§ 9.11(a), 9.11(b)(3)(i) through (v), 9.11(c), 9.12(a) and 9.13 (concerning the notice, effective date and publication of a disciplinary or access denial action), any summary action permitted under the provisions of part 37, appendix B, Core Principle 2, paragraph (a)(13) of this chapter or part 38, appendix B, Core Principle 13, paragraph (a)(6) of this chapter imposing a minor penalty for the violation of exchange rules relating to decorum or attire, or relating to the timely submission of accurate records required for clearing or verifying each day's transactions or other similar activities; and

    (3) Any exchange action arising from a claim, grievance, or dispute involving cash market transactions which are not a part of, or directly connected with, any transaction for the purchase, sale, delivery or exercise of a commodity for future delivery, a commodity option, or a swap.

    (4) The Commission will, upon its own motion or upon motion filed pursuant to § 9.21(b), promptly notify the appellant and the exchange that it will not accept the notice of appeal or petition for stay of matters specified in this paragraph. The determination to decline to accept a notice of appeal will be without prejudice to the appellant's right to seek alternate forms of relief that may be available in any other forum.

    (c) Applicability of these part 9 rules. Unless otherwise ordered, these rules will apply in their entirety to all appeals, and matters relating thereto.

    5. In § 9.2, revise paragraphs (b), (c), (f), and (k) to read as follows:
    § 9.2 Definitions.

    (b) Disciplinary action means any suspension, expulsion or other penalty imposed on a person by an exchange for violations of rules of the exchange, including summary actions.

    (c) Exchange means a swap execution facility or any board of trade which has been designated as a contract market.

    (f) Member of an exchange means

    (1) Any person who is admitted to membership or has been granted membership privileges on an exchange; any employee, officer, partner, director or affiliate of such member or person with membership privileges including any associated person; and any other person under the supervision or control of such member or person with membership privileges; or

    (2) Any person who has trading privileges on an exchange.

    (k) Summary action means a disciplinary action resulting in the imposition of a penalty on a person for violation of rules of the exchange permitted under the provisions of part 37, appendix B, Core Principle 2, paragraph (a)(10)(vi) of this chapteror part 38, appendix B, Core Principle 13, paragraph (a)(4) (penalty for impeding progress of hearing); part 37, appendix B, Core Principle 2, paragraph (a)(14) of this chapter or part 38, appendix B, Core Principle 13, paragraph (a)(7) (emergency disciplinary actions) of this chapter; part 37, appendix B, Core Principle 2, paragraph (a)(13) (summary fines for violations of rules regarding timely submission of records) of this chapter; or part 38, appendix B, Core Principle 13, paragraph (a)(6) (summary fines for violations of rules regarding timely submission of records, decorum, or other similar activities) of this chapter.

    6. Revise § 9.3 to read as follows:
    § 9.3 Provisions referenced.

    Except as otherwise provided in this part, the following provisions of the Commission's rules relating to reparations contained in part 12 of this chapter apply to this part: § 12.3 (Business address; hours); § 12.5 (Computation of time); § 12.6 (Extensions of time; adjournments; postponements); § 12.7 (Ex parte communications in reparation proceedings); and § 12.12 (Signature).

    7. In § 9.4, revise paragraphs (a), (b), and (c) to read as follows:
    § 9.4 Filing and service; official docket.

    (a) Filing with the Proceedings Clerk; proof of filing; proof of service. Any document that is required by this part to be filed with the Proceedings Clerk must be filed by delivering it in person or by mail to: Proceedings Clerk, Office of Proceedings, Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st Street NW., Washington, DC 20581. To be timely filed under this part, a document must be delivered or mailed to the Proceedings Clerk within the time prescribed for filing. A party must use a means of filing which is at least as expeditious as that used in serving that document upon the other parties. Proof of filing must be made by attaching to the document for filing a statement of service as provided in § 10.12(a)(6) of this chapter.

    (b) Formalities of filing—(1) Number of copies. Unless otherwise specifically provided, an original and one conformed copy of all documents filed with the Commission in accordance with the provisions of this part must be filed with the Proceedings Clerk.

    (2) Title page. All documents filed with the Proceedings Clerk must include at the head thereof, or on a title page, the name of the Commission, the title of the proceeding, the docket number (if one has been assigned by the Proceedings Clerk), the subject of the particular document and the name of the person on whose behalf the document is being filed.

    (3) Paper, spacing, type. All documents filed with the Proceedings Clerk must be typewritten, must be on one grade of good white paper no less than 8 or more than 81/2 inches wide and no less than 101/2 or more than 111/2 inches long, and must be bound on the top only. They must be double-spaced, except for long quotations (3 or more lines) and footnotes which should be single-spaced.

    (4) Signature. The original copy of all papers must be signed in ink by the person filing the same or by his or her duly authorized agent or attorney.

    (c) Service—(1) General requirements. All documents filed with the Proceedings Clerk must, at or before the time of filing, be served upon all parties. A party must use a means of service which is at least as expeditious as that used in filing that document with the Proceedings Clerk. One copy of all motions, petitions or applications made in the course of the proceeding, all notices of appeal, all briefs, and letters to the Commission or an employee thereof must be served by a party upon all other parties.

    (2) Manner of service. Service may be either personal or by mail. Service by mail is complete upon deposit of the document in the mail. Where service is effected by mail, the time within which the person served may respond thereto will be increased by three days.

    (3) Designation of person to receive service. The first document filed in a proceeding by or on behalf of any party must state on the first page the name and postal address of the person who is authorized to receive service for the party of all documents filed in the proceeding. Thereafter, service of documents must be made upon the person authorized unless service on a different authorized person or on the party himself or herself is ordered by the Commission, or unless pursuant to § 9.8 the person authorized is changed by the party upon due notice to all other parties. Parties must file and serve notification of any changes in the information provided pursuant to this subparagraph as soon as practicable after the change occurs.

    8. In § 9.8, revise paragraph (a)(1) to read as follows:
    § 9.8 Practice before the Commission.

    (a) Practice—(1) By non-attorneys. An individual may appear pro se (on his or her own behalf); a general partner may represent the partnership; a bona fide officer of a corporation, trust or association may represent the corporation, trust or association.

    9. In § 9.9, revise paragraphs (b)(3) and (b)(4) to read as follows:
    § 9.9 Waiver of rules; delegation of authority.

    (b) * * *

    (3) The General Counsel, or his or her designee, may submit to the Commission for its consideration any matter which has been delegated pursuant to paragraph (b)(1) of this section.

    (4) Nothing in this section will be deemed to prohibit the Commission, at its election, from exercising the authority delegated to the General Counsel, or his or her designee, under this section.

    10. Revise § 9.11 to read as follows:
    § 9.11 Form, contents and delivery of notice of disciplinary or access denial action.

    (a) When required. Whenever an exchange decision pursuant to which a disciplinary action or access denial action is to be imposed has become final, the exchange must, within thirty days thereafter, provide written notice of such action to the person against whom the action was taken and notice to the National Futures Association (“NFA”) through the NFA's Background Affiliation Status Information Center (“BASIC”) system: Provided, That a designated contract market is not required to notify the NFA of any summary action, as permitted under the provisions of part 38, appendix B, Core Principle 13, paragraph (a)(6) of this chapter, which results in the imposition of minor penalties for the violation of exchange rules relating to decorum or attire. No final disciplinary or access denial action may be made effective by the exchange except as provided in § 9.12.

    (b) Contents of notice. For purposes of this part:

    (1) The written notice of a disciplinary action or access denial action provided to the person against whom the action was taken by a designated contract market must be a copy of a written decision which accords with:

    (i) Part 38, appendix B, Core Principle 13, paragraph (a)(3) of this chapter in the case of settlement offers;

    (ii) Section 38.708 of this chapter in the case of decisions; or

    (iii) Part 38, appendix B, Core Principle 13, paragraph (a)(5)(iv) of this chapter in the case of appeal decisions of this chapter (including copies of any materials incorporated by reference) or other written notice which must include items listed in paragraphs (b)(3)(i)-(vi) of this section.

    (2) The written notice of a disciplinary action or access denial action provided to the person against whom the action was taken by a swap execution facility must be a copy of a written decision which accords with:

    (i) Part 37, appendix B, Core Principle 2, paragraph (a)(9) of this chapter in the case of settlement offers;

    (ii) Section 37.206(d) of this chapter in the case of decisions; or

    (iii) Part 37, appendix B, Core Principle 2, paragraph (a)(11)(iv) of this chapter in the case of appeal decisions of this chapter (including copies of any materials incorporated by reference) or other written notice which must include items listed in paragraphs (b)(3)(i) through (vi) of this section.

    (3) The notice of a disciplinary action or access denial action provided to the NFA must include only the items listed in the following paragraphs (i) through (v):

    (i) The name of the person against whom the disciplinary action or access denial action was taken;

    (ii) A statement of the reasons for the disciplinary action or access denial action, detailing the exchange product which was involved, as applicable, and whether the violation that resulted in the action also resulted in financial harm to any customers together with a listing of any rules which the person who was the subject of the disciplinary action or access denial action was charged with having violated or which otherwise serve as the basis of the exchange action;

    (iii) A statement of the conclusions and findings made by the exchange with regard to each rule violation charged or, in the event of settlement, a statement specifying those rule violations which the exchange has reason to believe were committed;

    (iv) The terms of the disciplinary action or access denial action;

    (v) The date on which the action was taken and the date the exchange intends to make the disciplinary or access denial action effective; and

    (vi) Except as otherwise provided in § 9.1(b), a statement informing the party subject to the disciplinary action or access denial action of the availability of Commission review of the exchange action pursuant to section 8c of the Act and this part.

    (c) Delivery and filing of the notice. Delivery of the notice must be made either personally to the person who was the subject of the disciplinary action or access denial action or by mail to such person at that person's last known address. Filing of the notice with the NFA is accomplished when an authorized exchange employee verifies the accuracy of the information entered into BASIC.

    (d) Effect of delivery by mail. Delivery by mail to the person disciplined or denied access will be complete upon deposit in the mail of a properly addressed and postpaid document. Where delivery to the person disciplined or denied access is effected by such mail, the time within which a notice of appeal or petition for stay may be filed will be increased by three days.

    (e) Certification. Copies of the notice and the submission of any additional information provided pursuant to this section must be certified as true and correct by a duly authorized officer, agent or employee of the exchange. Notice filed with the NFA is deemed certified when an authorized exchange employee verifies the accuracy of the information entered into BASIC.

    11. Revise § 9.12 to read as follows:
    § 9.12 Effective date of disciplinary or access denial action.

    (a) Effective date. Any disciplinary or access denial action taken by an exchange will not become effective until at least fifteen days after the written notice prescribed by § 9.11 is delivered to the person disciplined or denied access; Provided, however, That the exchange may cause a disciplinary action to become effective prior to that time if:

    (1) As permitted by part 37, appendix B, Core Principle 2, paragraph (a)(14) of this chapter or part 38, appendix B, Core Principle 13, paragraph (a)(7) (emergency disciplinary actions) of this chapter, the exchange reasonably believes, and so states in its written decision, that immediate action is necessary to protect the best interests of the marketplace; or

    (2) As permitted by part 37, appendix B, Core Principle 2, paragraph (a)(10)(vi) of the chapter or part 38, appendix B, Core Principle 13, paragraph (a)(4) (hearings) of this chapter, the exchange determines, and so states in its written decision, that the actions of a person who is within the exchange's jurisdiction has impeded the progress of a disciplinary hearing; or

    (3) As permitted by part 37, appendix B, Core Principle 2, paragraph (a)(13) (summary fines for violations of rules regarding timely submission of records) of this chapter or part 38, appendix B, Core Principle 13, paragraph (a)(6) (summary fines for violations of rules regarding timely submission of records, decorum, or other similar activities) of this chapter, the exchange determines that a person has violated exchange rules relating to decorum or attire, or timely submission of accurate records required for clearing or verifying each day's transactions or other similar activities; or

    (4) The person against whom the action is taken has consented to the penalty to be imposed and to the timing of its effectiveness.

    (b) Notice of early effective date. If the exchange determines in accordance with paragraph (a)(1) of this section that a disciplinary action will become effective prior to the expiration of fifteen days after written notice thereof, it must notify the person disciplined in writing, either personally or by email to the person's last known email address, stating the reasons for the determination. The exchange must also immediately notify the Commission by email to [email protected] Where notice is delivered by email, the time within which the person so notified may file a petition for stay pursuant to § 9.24(a)(2) will be increased by one day.

    12. Revise § 9.13 to read as follows:
    § 9.13 Publication of notice.

    Whenever an exchange suspends, expels or otherwise disciplines, or denies any person access to the exchange, it must make public its findings by disclosing at least the information contained in the notice required by § 9.11(b). An exchange must make such findings public as soon as the disciplinary action or access denial action becomes effective in accordance with the provisions of § 9.12 by posting a notice on its Web site to which its members and the public regularly have access. Such notice must be maintained and readily available on the exchange's Web site.

    13. In § 9.24, revise paragraph (a)(2) to read as follows:
    § 9.24 Petition for stay pending review.

    (a) * * *

    (2) Within ten days after a notice of summary action has been delivered in accordance with § 9.12(b) to a person who is the subject of a summary action permitted by part 37, appendix B, Core Principle 2, paragraph (a)(14) or part 38, appendix B, Core Principle 13, paragraph (a)(7) (emergency disciplinary actions) of this chapter, that person may petition the Commission to stay the effectiveness of the summary action pending completion of the exchange proceeding.

    14. Revise § 9.31 to read as follows:
    § 9.31 Commission review of disciplinary or access denial action on its own motion.

    (a) Request for additional information. Where a person disciplined or denied access has not appealed the exchange decision to the Commission, upon review of the notice specified in § 9.11, the Division of Market Oversight or the Division of Swap Dealer and Intermediary Oversight may request that the exchange file with the Division the record of the exchange proceeding, or designated portions of the record, a brief statement of the evidence and testimony adduced to support the exchange's findings that a rule or rules of the exchange were violated and such recordings, transcripts and other documents applicable to the particular exchange proceeding as the Division may specify. The exchange must promptly advise the person who is the subject of the disciplinary or access denial action of the Division's request. Within thirty days after service of the Division's request, the exchange must file the information requested with the Division in the manner requested by the Division and, upon request, deliver that information to the person who is the subject of the disciplinary or access denial action. Delivery to the person who is the subject of the disciplinary or access denial action must be in the manner prescribed by § 9.11(c). A person subject to the disciplinary action or access denial action requesting a copy of the information furnished to the Division must, if the exchange rules so provide, agree to pay the exchange reasonable fees for printing the copy.

    (b) Review on motion of the Commission. The Commission may institute review of an exchange disciplinary or access denial action on its own motion. Other than in extraordinary circumstances, such review will be initiated within 180 days after the NFA has received the notice of exchange action provided for in § 9.11. If the Commission should institute review on its own motion, it will issue an order permitting the person who is the subject of the disciplinary or access denial action an opportunity to file an appropriate submission, and the exchange an opportunity to file a reply thereto.

    Issued in Washington, DC, on January 13, 2017, by the Commission. Christopher J. Kirkpatrick, Secretary of the Commission. Note:

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

    Appendix to Amendments to Parts 3 and 9 of the Commodity Futures Trading Commission's Rules—Commission Voting Summary

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

    [FR Doc. 2017-01232 Filed 1-19-17; 8:45 am] BILLING CODE 6351-01-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration 21 CFR Parts 11, 16, and 112 [Docket No. FDA-2017-D-0175] Compliance With and Recommendations for Implementation of the Standards for the Growing, Harvesting, Packing, and Holding of Produce for Human Consumption for Sprout Operations; Draft Guidance for Industry; Availability AGENCY:

    Food and Drug Administration, HHS.

    ACTION:

    Notification of availability.

    SUMMARY:

    The Food and Drug Administration (FDA or we) is announcing the availability of a draft guidance for industry entitled “Compliance with and Recommendations for Implementation of the Standards for the Growing, Harvesting, Packing, and Holding of Produce for Human Consumption for Sprout Operations.” The draft guidance, when finalized, will help sprout operations subject to FDA's final rule entitled “Standards for the Growing, Harvesting, Packing, and Holding of Produce for Human Consumption” (the Produce Safety Rule), and primarily focuses on assisting such operations in complying with the sprout-specific requirements in Subpart M (Sprouts) of the Produce Safety Rule. The draft guidance also includes limited discussion on certain other applicable requirements of the Produce Safety Rule. This draft guidance may also be useful to sprout operations that are not subject to the Produce Safety Rule that voluntarily choose to follow the standards established by the rule.

    DATES:

    Although you can comment on any guidance at any time (see 21 CFR 10.115(g)(5)), to ensure that the Agency considers your comment on this draft guidance before it begins work on the final version of the guidance, submit either electronic or written comments on the draft guidance by July 24, 2017.

    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-2017-D-0175 for “Compliance with and Recommendations for Implementation of the Standards for the Growing, Harvesting, Packing, and Holding of Produce for Human Consumption for Sprout Operations.” 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.” We will review this copy, including the claimed confidential information, in our 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 to the Division of Produce Safety, Center for Food Safety and Applied Nutrition (HFS-317), Food and Drug Administration, 5001 Campus Dr., College Park, MD 20740, 240-402-1600. Send one self-addressed adhesive label to assist that office in processing your requests. See the SUPPLEMENTARY INFORMATION section for electronic access to the draft guidance document.

    FOR FURTHER INFORMATION CONTACT:

    Samir Assar, Center for Food Safety and Applied Nutrition (HFS-317), Food and Drug Administration, 5001 Campus Dr., College Park, MD 20740-3835, 240-402-1636.

    SUPPLEMENTARY INFORMATION: I. Background

    We are announcing the availability of a draft guidance for industry entitled “Compliance with and Recommendations for Implementation of the Standards for the Growing, Harvesting, Packing, and Holding of Produce for Human Consumption for Sprout Operations.” We are issuing the draft guidance consistent with our good guidance practices regulation (21 CFR 10.115). The draft guidance, when finalized, will represent our current thinking on this topic. It does not establish any rights for any person and is not binding on FDA or the public. You can use an alternative approach if it satisfies the requirements of the applicable statutes and regulations.

    The draft guidance for industry is intended to explain our current thinking on how to comply with the requirements for the safe growing, harvesting, packing and holding of produce under 21 CFR part 112, focusing on subparts impacting sprout operations covered by Subpart M. Topics discussed in the draft guidance include:

    • General Sprout Production;

    • Buildings, Tools, and Equipment;

    • Cleaning and Sanitizing;

    • Agricultural Water in Sprouting Operations;

    • Seeds for Sprouting;

    • Sampling and Testing of Spent Sprout Irrigation Water or Sprouts;

    • Environmental Monitoring; and

    • Recordkeeping.

    FDA welcomes comments on any aspect of this draft guidance. We are particularly interested in receiving information about the types of seed or bean treatments that have been used by sprout operations and/or seed suppliers, as well as their feasibility of use, cost, impact on germination; scientific information related to the effectiveness in reducing or eliminating microorganisms of public health significance; and any variability in treatment effectiveness based on seed type.

    FDA has developed a risk assessment model to evaluate the public health impact of seed treatment and testing of spent irrigation water in a sprout production system and anticipates making it available in the near future, following peer review.

    II. Paperwork Reduction Act of 1995

    Under the Paperwork Reduction Act of 1995 (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 publish notice in the Federal Register soliciting public comment on each proposed collection of information before submitting the collection to OMB for approval. To comply with this requirement, we will publish a 60-day notice on the proposed collection of information in a future issue of the Federal Register.

    III. Electronic Access

    Persons with access to the Internet may obtain the draft guidance at either http://www.fda.gov/FoodGuidances or http://www.regulations.gov. Use the FDA Web site listed in the previous sentence to find the most current version of the guidance.

    Dated: January 12, 2017. Leslie Kux, Associate Commissioner for Policy.
    [FR Doc. 2017-01128 Filed 1-19-17; 8:45 am] BILLING CODE 4164-01-P
    DEPARTMENT OF THE TREASURY Internal Revenue Service 26 CFR Part 1 [REG-133353-16] RIN 1545-BN63 Disclosures of Return Information Reflected on Returns to Officers and Employees of the Department of Commerce for Certain Statistical Purposes and Related Activities; Correction AGENCY:

    Internal Revenue Service (IRS), Treasury.

    ACTION:

    Notice of proposed rulemaking by cross-reference to temporary regulation; correction.

    SUMMARY:

    This document contains corrections to a notice of proposed rulemaking by cross-reference to temporary regulation (REG-133353-16) that was published in the Federal Register on Friday, December 9, 2016. The proposed regulations authorize the disclosure of specified return information to the Census Bureau (Bureau) for purposes of structuring the censuses and national economic accounts and conducting related statistical activities authorized by title 13.

    DATES:

    Written or electronic comments and request for public hearing for the notice of proposed rulemaking by cross-reference to temporary regulation at 81 FR 89022, December 9, 2016, are still being accepted and must be received by March 9, 2017.

    ADDRESSES:

    Send submissions to CC:PA:LPD:PR (REG-133353-16), Room 5203, Internal Revenue Service, P.O. Box 7604, Ben Franklin Station, Washington, DC 20044. Submissions may be hand delivered Monday through Friday between the hours of 8 a.m. and 4 p.m. to CC:PA:LPD:PR (REG-133353-16), Courier's desk, Internal Revenue Service, 1111 Constitution Avenue NW., Washington, DC 20224, or sent electronically, via the Federal eRulemaking Portal at www.regulations.gov (IRS REG-133353-16).

    SUPPLEMENTARY INFORMATION:

    Background

    The notice of proposed rulemaking by cross-reference to temporary regulation that is the subject of this document is under section 6103(j)(1)(A) of the Internal Revenue Code.

    Need for Correction

    As published, the notice of proposed rulemaking by cross-reference to temporary regulation (REG-133353-16) contains errors that are misleading and are in need of clarification.

    Correction to Publication

    Accordingly, the notice of proposed rulemaking by cross-reference to temporary regulation, that is the subject of FR Doc. 2016-29490, is corrected as follows:

    1. On page 89022, in the preamble, second column, second line from the top of column, the language “CC:PA:LPD:PR (REG-133533-16), Room” is corrected to read “CC:PA:LPD:PR (REG-133353-16), Room”.

    2. On page 89022, in the preamble, second column, eighth line from the top of column, the language “4 p.m. to CC:PA:LPD:PR (REG-133533-” is corrected to read “4 p.m. to CC:PA:LPD:PR (REG-133353-”.

    3. On page 89022, in the preamble, second column, sixth line from the bottom of ADDRESSES caption, the language “Service, 1111 Constitutional Avenue” is corrected to read “Service, 1111 Constitution Avenue”.

    § 301.6103(j)(1)-1 [Corrected]

    4. On page 89023, first column, third line of paragraph (e), the language “(b)(3)(v), (b)(3)(xxv), (b)(3)(xxv) through” is corrected to read “(b)(3)(v), (b)(3)(xxv) through”.

    Martin V. Franks, Branch Chief, Publications and Regulations Branch, Legal Processing Division, Associate Chief Counsel (Procedure and Administrative).
    [FR Doc. 2017-00946 Filed 1-19-17; 8:45 am] BILLING CODE 4830-01-P
    DEPARTMENT OF THE TREASURY Alcohol and Tobacco Tax and Trade Bureau 27 CFR Parts 24 and 27 [Docket No. TTB-2016-0014; Notice No. 168; Re: T.D. TTB-147] RIN 1513-AC31 Implementation of Statutory Amendments Requiring the Modification of the Definition of Hard Cider AGENCY:

    Alcohol and Tobacco Tax and Trade Bureau, Treasury.

    ACTION:

    Notice of proposed rulemaking; cross-reference to temporary rule.

    SUMMARY:

    Elsewhere in this issue of the Federal Register, by means of a temporary rule, the Alcohol and Tobacco Tax and Trade Bureau (TTB) implements changes made to the definition of “hard cider” in the Internal Revenue Code of 1986 by the Protecting Americans from Tax Hikes Act of 2015. The modified definition broadens the range of wines eligible for the hard cider tax rate. TTB is amending its regulations to reflect the modified definition of hard cider effective for products removed on or after January 1, 2017, and to set forth new labeling requirements to identify products to which the hard cider tax rate applies. The new labeling requirements include both a one-year transitional rule and a new labeling requirement that takes effect for products removed on or after January 1, 2018. The text of the regulations in that temporary rule published elsewhere in this issue of the Federal Register serves as the text of the proposed regulations.

    DATES:

    Comments must be received on or before March 24, 2017.

    ADDRESSES:

    Please send your comments on this document to one of the following addresses:

    Internet: https://www.regulations.gov (via the online comment form for this document as posted within Docket No. TTB-2016-0014 at “Regulations.gov,” the Federal e-rulemaking portal);

    U.S. Mail: Director, Regulations and Rulings Division, Alcohol and Tobacco Tax and Trade Bureau, 1310 G Street NW., Box 12, Washington, DC 20005; or

    Hand delivery/courier in lieu of mail: Alcohol and Tobacco Tax and Trade Bureau, 1310 G Street NW., Suite 400, Washington, DC 20005.

    See the Public Participation section of this document for specific instructions and requirements for submitting comments, and for information on how to request a public hearing.

    You may view copies of this document, the related temporary rule, and any comments TTB receives about this proposal at https://www.regulations.gov within Docket No. TTB-2016-0014. A link to that docket is posted on the TTB Web site at https://www.ttb.gov/wine/wine-rulemaking.shtml under Notice No. 168. You also may view copies of this document, the temporary rule, and any comments TTB receives about this proposal by appointment at the TTB Information Resource Center, 1310 G Street, and NW., Washington, DC 20005. Please call (202) 453-2270 to make an appointment.

    FOR FURTHER INFORMATION CONTACT:

    Kara Fontaine, Regulations and Rulings Division, Alcohol and Tobacco Tax and Trade Bureau, 1310 G Street NW., Box 12, Washington, DC 20005; telephone (202) 453-1039, ext. 103.

    SUPPLEMENTARY INFORMATION:

    Background

    On December 18, 2015, the President signed into law the Consolidated Appropriations Act, 2016 (Pub. L. 114-113). Division Q of this Act is titled the Protecting Americans from Tax Hikes Act of 2015 (PATH Act). Section 335(a) of the PATH Act amends the Internal Revenue Code of 1986 (IRC) at 26 U.S.C. 5041 by modifying the definition of hard cider for excise tax classification purposes. Pursuant to section 335(b) of the PATH Act, the amended definition of hard cider applies to such products removed on or after January 1, 2017. The PATH Act does not change the tax rate applicable to wine eligible for the hard cider tax rate; rather, it broadens the range of products to which the hard cider tax rate applies. Among other things, the range of products to which the hard cider tax rate applies will include certain sparkling and carbonated products and certain products that are subject to the requirements of the Federal Alcohol Administration Act (FAA Act).

    Elsewhere in this issue of the Federal Register, TTB is publishing temporary regulations making amendments to parts 24 and 27 of the TTB regulations (27 CFR parts 24 and 27) to implement the changes made to the definition of “hard cider” in the Internal Revenue Code of 1986 by the PATH Act. The text of the temporary regulations serves as the text of these proposed regulations. The preamble to the temporary regulations explains the proposed regulations.

    Public Participation Comments Sought

    TTB requests comments from interested members of the public on the proposed changes to our regulations in 27 CFR parts 24 and 27, which are described in detail in the temporary rule issued in conjunction with this notice of proposed rulemaking and published elsewhere in this issue of the Federal Register. TTB is particularly interested in comments on the labeling provisions and any alternatives to requiring that “Tax Class 5041(b)(6)” appear on the labels of products to which the hard cider tax rate applies. Please provide specific information in support of your comments.

    Submitting Comments

    You may submit comments on this proposal by using one of the following three methods:

    Federal e-Rulemaking Portal: You may send comments via the online comment form posted with this proposed rule within Docket No. TTB-2016-0014 on “Regulations.gov,” the Federal e-rulemaking portal, at https://www.regulations.gov. A direct link to that docket is available under Notice No. 168 on the TTB Web site at https://www.ttb.gov/wine/wine-rulemaking.shtml. Supplemental files may be attached to comments submitted via Regulations.gov. For complete instructions on how to use Regulations.gov, click on the sites “Help” tab.

    U.S. Mail: You may send comments via postal mail to the Director, Regulations and Rulings Division, Alcohol and Tobacco Tax and Trade Bureau, 1310 G Street NW., Box 12, Washington, DC 20005.

    Hand Delivery/Courier: You may hand-carry your comments or have them hand-carried to the Alcohol and Tobacco Tax and Trade Bureau, 1310 G Street NW., Suite 400, Washington, DC 20005.

    Please submit your comments by the closing date shown above in this proposed rule. Your comments must reference Notice No. 168 and include your name and mailing address. Your comments also must be made in English, be legible, and be written in language acceptable for public disclosure. TTB does not acknowledge receipt of comments and considers all comments as originals.

    In your comment, please clearly state if you are commenting for yourself or on behalf of an association, business, or other entity. If you are commenting on behalf of an entity, your comment must include the entity's name as well as your name and position title. In your comment via Regulations.gov, please enter the entity's name in the “Organization” blank of the online comment form. If you comment via postal mail or hand delivery/courier, please submit your entity's comment on letterhead.

    You may also write to the Administrator before the comment closing date to ask for a public hearing. The Administrator reserves the right to determine whether to hold a public hearing.

    Confidentiality

    All submitted comments and attachments are part of the public record and subject to disclosure. Do not enclose any material in your comments that you consider to be confidential or inappropriate for public disclosure.

    Public Disclosure

    TTB will post, and you may view, copies of this proposed rule, the related temporary rule, and any online or mailed comments received about this proposal within Docket No. TTB-2016-0014 on the Federal e-rulemaking portal. A direct link to that docket is available on the TTB Web site at https://www.ttb.gov/wine/wine-rulemaking.shtml under Notice No. 168. You may also reach the relevant docket through the Regulations.gov search page at https://www.regulations.gov. For information on how to use Regulations.gov, click on the site's “Help” tab.

    All posted comments will display the commenter's name, organization (if any), city, and State, and, in the case of mailed comments, all address information, including email addresses. TTB may omit voluminous attachments or material that it considers unsuitable for posting.

    You may view copies of this proposed rule, the related temporary rule, and any electronic or mailed comments TTB receives about this proposal by appointment at the TTB Information Resource Center, 1310 G Street NW., Washington, DC 20005. You may also obtain copies for 20 cents per 81/2 x 11-inch page. Contact TTB's information specialist at the above address or by telephone at (202) 453-2270 to schedule an appointment or to request copies of comments or other materials.

    Regulatory Flexibility Act, Paperwork Reduction Act, and Executive Order 12866

    Since the regulatory text proposed in this notice of proposed rulemaking is identical to that contained in the companion temporary rule published elsewhere in this issue of the Federal Register, the analyses contained in the preamble of the temporary rule concerning the Regulatory Flexibility Act, the Paperwork Reduction Act, and Executive Order 12866 also apply to this proposed rule.

    Drafting Information

    Dana Register and Kara Fontaine of the Regulations and Rulings Division drafted this document with the assistance of other Alcohol and Tobacco Tax and Trade Bureau personnel.

    List of Subjects 27 CFR Part 24

    Administrative practice and procedure, Cider, Claims, Electronic funds transfers, Excise taxes, Exports, Food additives, Fruit juices, Hard Cider, Labeling, Liquors, Packaging and containers, Reporting and recordkeeping requirements, Research, Scientific equipment, Spices and flavorings, Surety bonds, Vinegar, Warehouses, Wine.

    27 CFR Part 27

    Alcohol and alcoholic beverages, Beer, Cosmetics, Customs duties and inspections, Electronic funds transfers, Excise taxes, Imports, Labeling, Liquors, Packaging and containers, Reporting and Recordkeeping requirements, Wine.

    Proposed Amendments to the Regulations

    For the reasons discussed in the preamble, TTB proposes to amend 27 CFR chapter I, parts 24 and 27 as follows:

    PART 24—WINE 1. The authority citation for part 24 continues to read as follows: Authority:

    5 U.S.C. 552(a); 26 U.S.C. 5001, 5008, 5041, 5042, 5044, 5061, 5062, 5121, 5122-5124, 5173, 5206, 5214, 5215, 5351, 5353, 5354, 5356, 5357, 5361, 5362, 5364-5373, 5381-5388, 5391, 5392, 5511, 5551, 5552, 5661, 5662, 5684, 6065, 6091, 6109, 6301, 6302, 6311, 6651, 6676, 7302, 7342, 7502, 7503, 7606, 7805, 7851; 31 U.S.C. 9301, 9303, 9304, 9306.

    2. [The proposed amendatory instructions and the proposed regulatory text for part 24 are the same as the amendatory instructions and the amendatory regulatory text set forth in the temporary rule on this subject published in the Rules and Regulations section of this issue of the Federal Register]. PART 27—IMPORTATION OF DISTILLED SPIRITS, WINES, AND BEER 3. The authority citation for part 27 continues to read as follows: Authority:

    5 U.S.C. 552(a), 19 U.S.C. 81c, 1202; 26 U.S.C. 5001, 5007, 5008, 5010, 5041, 5051, 5054, 5061, 5121, 5122-5124, 5201, 5205, 5207, 5232, 5273, 5301, 5313, 5382, 5555, 6109, 7805.

    4. [The proposed amendatory instructions and the proposed regulatory text for part 27 are the same as the amendatory instructions and the amendatory regulatory text set forth in the temporary rule on this subject published in the Rules and Regulations section of this issue of the Federal Register]. Signed: December 7, 2016. John J. Manfreda, Administrator. Approved: January 4, 2017. Timothy E. Skud, Deputy Assistant Secretary (Tax, Trade and Tariff Policy).
    [FR Doc. 2017-00334 Filed 1-19-17; 8:45 am] BILLING CODE 4810-31-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 46 CFR Part 4 [Docket No. USCG-2016-0748] RIN 1625-AC33 Marine Casualty Reporting Property Damage Thresholds AGENCY:

    Coast Guard, DHS.

    ACTION:

    Notice of proposed rulemaking.

    SUMMARY:

    The Coast Guard proposes to amend the monetary property damage threshold amounts for reporting a marine casualty, and for reporting a type of marine casualty called a “serious marine incident” (SMI). The initial regulations setting these dollar threshold amounts were promulgated in the early1980s and they have not been updated. Because the monetary thresholds for reporting have not kept pace with inflation, relatively minor casualties must be reported. Additionally, the regulations require mandatory drug and alcohol testing following an SMI; consequently, testing is being conducted for casualties that are less significant than those intended to be captured by the original regulations. Updating the regulations will reduce the burden on vessel owners and operators, and will also reduce the amount of Coast Guard resources expended to investigate these incidents.

    DATES:

    Comments and related material must be submitted to the online docket via http://www.regulations.gov, or reach the Docket Management Facility, on or before March 24, 2017.

    Comments sent to the Office of Management and Budget (OMB) on collection of information must reach OMB on or before March 24, 2017.

    ADDRESSES:

    Submit comments using one of the listed methods, and see SUPPLEMENTARY INFORMATION section below for more information on public comments.

    Collection of information. You must submit any comments on the collection of information discussed in Section IV of this preamble both to the Coast Guard's docket and to the Office of Information and Regulatory Affairs (OIRA) in the White House Office of Management and Budget. OIRA submissions can use one of the listed methods.

    Email (preferred)—[email protected] (include the docket number and “Attention: Desk Officer for Coast Guard, DHS” in the subject line of the email).

    Fax—202-395-6566.

    Mail—Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street NW., Washington, DC 20503, ATTN: Desk Officer, U.S. Coast Guard.

    FOR FURTHER INFORMATION CONTACT:

    For information about this document, call or email CDR Randy Waddington, CG-INV, Coast Guard; telephone 202-372-1029, email [email protected]

    SUPPLEMENTARY INFORMATION:

    Table of Contents for Preamble I. Public Participation and Request for Comments II. Abbreviations III. Background, Basis, and Purpose IV. Discussion of Proposed Rule V. Regulatory Analyses A. Regulatory Planning and Review B. Small Entities C. Assistance for Small Entities D. Collection of Information E. Federalism F. Unfunded Mandates Reform Act G. Taking of Private Property H. Civil Justice Reform I. Protection of Children J. Indian Tribal Governments K. Energy Effects L. Technical Standards M. Environment I. Public Participation and Request for Comments

    We view public participation as essential to effective rulemaking, and we 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. Documents mentioned in this notice of proposed rulemaking (NPRM), and all public comments, are 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.

    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).

    We are not planning to hold a public meeting but will consider doing so if public comments indicate a meeting would be helpful. We would issue a separate Federal Register notice to announce the date, time, and location of such a meeting.

    II. Abbreviations BLS Bureau of Labor Statistics CFR Code of Federal Regulations CPI-U Consumer Price Index for All Urban Consumers DHS Department of Homeland Security E.O. Executive Order FR Federal Register MISLE Marine Information for Safety and Law Enforcement NVIC Navigation and Vessel Inspection Circular OCMI Officer in Charge, Marine Inspection OMB Office of Management and Budget SMI Serious marine incident § Section symbol U.S.C. United States Code III. Background, Basis, and Purpose

    Pursuant to 46 U.S.C. 6101, the Coast Guard is required to prescribe regulations on marine casualty reporting and the manner of reporting. Based on this authority, we promulgated regulations in part 4 of Title 46 of the Code of Federal Regulations (CFR) that included, among other criteria, monetary property damage threshold amounts for reporting a “serious marine incident” 1 and for reporting a marine casualty.2 The original regulations setting these property damage threshold amounts were promulgated in the 1980s and they have not since been updated. In this NPRM, the Coast Guard proposes to update the dollar threshold amounts for property damage in 46 CFR 4.03-2(a)(3) and 4.05-1(a)(7) to account for inflation.

    1 46 CFR 4.03-2.

    2 46 CFR 4.05-1.

    In 2013 through 2014, Coast Guard undertook a review of marine casualty reporting requirements during our development of Navigation and Vessel Inspection Circular (NVIC) 01-15, resulting in a Federal Register notice 3 requesting public comment on the draft NVIC 01-15. Several commenters from industry and the public noted that property damage threshold amounts for reported marine casualties and serious marine incidents (SMIs) had not been updated to reflect inflation and supported an inflation adjustment to the thresholds. Furthermore, in response to a task to examine the Coast Guard's marine casualty reporting requirements, the Coast Guard's Towing Vessel Safety Advisory Committee recommended that we amend the monetary thresholds in 46 CFR part 4 to account for inflation.4

    3 79 FR 2466 (January 14, 2014).

    4 Towing Safety Advisory Committee, Task 13-09, Recommendations for Improvement of Marine Casualty Reporting Final Report. This report is accessible at https://homeport.uscg.mil/tsac.

    There is Coast Guard and stakeholder consensus that the early 1980s property damage monetary threshold amounts listed in 46 CFR 4.03-2 and 4.05-1 have not kept pace with inflation. Over time, this has resulted in the reporting of a greater number casualties involving relatively minor property damage. As was explained in the 1980 interim final rule, “the Coast Guard's selection of a monetary value as a reporting criterion is based upon the premise that increased repair costs are indicative of the increased seriousness of a marine casualty [. . .] The monetary damage criterion has been chosen as the most effective method of ensuring that only the more serious casualties are reported.” (45 FR 77439, 77440). Accordingly, it has never been our intent to require owners or operators to notify us of casualties involving relatively minor property damage; consequently, we are amending the property damage monetary threshold amounts in order to eliminate the reporting of insignificant property damage incidents. The marine casualty reports impacted by this NPRM are those marine casualties where the only outcome was property damage in the amount of $25,000.01 through $72,000. Additionally, because the regulations require mandatory drug and alcohol testing following an SMI, current regulations require chemical testing for casualties that reach a minimum threshold of $100,000 in property damage. Due to cost increases caused by inflation, however, casualties that result in property damage between $100,000 and $200,000 are no longer representative of a “serious” casualty. The lack of inflation updates to our marine casualty regulations has resulted in an additional administrative and financial burden on vessel owners and operators, as well as on Coast Guard resources used to investigate these incidents. This NPRM would result in an estimated annual cost savings of $40,809 to industry due to a reduction in the hourly burden of reporting and recordkeeping for both marine casualties and SMIs, and a reduction in an estimated annual cost savings of $4,649 for chemical testing for marine casualties designated as SMIs. This NPRM would result in Coast Guard cost savings by reducing the hourly burden costs to investigate marine casualties as well as the costs associated with processing marine casualty forms.

    As a result of updating the dollar amount thresholds to account for inflation, we anticipate there would be a decrease in the number of commercial vessel casualties reported to the Coast Guard. The changes proposed by this NPRM would also likely decrease the number of casualties that fall within the current definition of an SMI, and thereby reduce the amount of chemical tests administered following an SMI that result in property damage of $100,000.01 through $200,000. However mandatory chemical testing would still be required if the property damage meets the revised dollar threshold amount (in excess of $200,000) proposed by this NPRM. The intent of setting a dollar amount threshold in our marine casualty reporting regulation and within the definition of “serious marine incident” is to ensure that the Coast Guard is aware of those incidents that could be indicative of more serious problems and that may be averted in the future with timely intervention.

    These proposed changes would provide a benefit for both the marine industry and the Coast Guard because they would reduce the hourly burden or eliminate the marine casualty reporting requirements for incidents involving property damage between the existing and proposed thresholds, and reduce SMI chemical testing requirements for incidents involving property damage in the range of $100,000 through $200,000. As a result, the marine industry and Coast Guard resources would be able to focus efforts on higher consequence incidents.

    IV. Discussion of Proposed Rule

    The Coast Guard proposes to amend 46 CFR 4.03-2 and 4.05-1. The proposed changes would replace the existing reportable marine casualty property damage threshold amount of $25,000 with $72,000 in 46 CFR part 4.05-1(a) (7), and replace the SMI property damage threshold of $100,000 with $200,000 in 46 CFR part 4.03-2(a) (3). These threshold amounts are being updated to account for inflation.

    The Coast Guard determined the inflation adjustment factor using the change in the Consumer Price Index for All Urban Consumers (CPI-U) from the original dollar thresholds set in 1980 for marine casualty property damage and 1988 for SMI property damage. The CPI-U is calculated and published by the U.S. Department of Labor, Bureau of Labor Statistics, 5 and uses the period of 1982 to 1984 as the base level where the CPI-U = 100. We calculated the inflation adjustment by comparing the average CPI-U for the base years (82.408 in 1980 and 118.258 in 1988) with the average CPI-U for 2015 (237.017). This resulted in an inflation adjustment factor of 1.876 6 for the marine casualty dollar threshold and a factor of 1.004 7 for the SMI dollar threshold.

    5 CPI Detailed Report December 2015, Table 24. http://www.bls.gov/cpi/cpid1512.pdf.

    6 (237.017 - 82.408)/82.408 = 1.876.

    7 (237.017 - 118.258)/118.258 = 1.004.

    For the marine casualty reporting threshold, we multiplied the inflation adjustment factor of 1.876 by the current threshold of $25,000 to calculate the raw inflation increment of $46,900, resulting in a total revised threshold of $72,000 (25,000 + $46,900 rounded to the nearest thousand).

    For the SMI dollar threshold, we multiplied the inflation adjustment factor of 1.004 by the current threshold of $100,000 to calculate the raw inflation increment of $100,400, resulting in a total revised threshold of $200,000 (100,000 + $100,400 rounded to the nearest thousand).

    V. Regulatory Analyses

    We developed this NPRM after considering numerous statutes and Executive Orders (E.O.s) related to rulemaking. Below we summarize our analyses based on these statutes or E.O.s.

    A. Regulatory Planning and Review

    Executive Orders 12866 (“Regulatory Planning and Review”) and 13563 (“Improving Regulation and Regulatory Review”) 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 (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This NPRM has not been designated a “significant regulatory action,” under section 3(f) of Executive Order 12866. Accordingly, the rule has not been reviewed by the Office of Management and Budget.

    This Regulatory Analysis provides an evaluation of the economic impacts associated with this NPRM. The Coast Guard proposes to amend two sections in part 4 of Title 46 of the CFR, 46 CFR 4.03-2 and 4.05-1. Under this NPRM, the Coast Guard proposes to replace the reportable marine casualty dollar threshold of $25,000 with $72,000 in 46 CFR part 4.05-1(a) (7), and replace the SMI dollar threshold of $100,000 with $200,000 in 46 CFR part 4.03-2(a) (3) to update the thresholds to account for inflation, as discussed in Section IV of this NPRM. Table 1 provides a summary of the affected population, costs, and benefits after implementation of this NPRM.

    Table 1—Summary of the Impacts of the NPRM Category Summary Applicability Replace the reportable marine casualty dollar threshold of $25,000 with $72,000. Replace the SMI dollar threshold of $100,000 with $200,000. Owners, agents, masters, operators, or persons in charge involved in a marine casualty and crewmembers who are required to undergo chemical testing. Affected Population Annual average of 316 vessel owners, operators, or their representatives reporting a marine casualty, 21 marine employers reporting an SMI, and average of 32 vessel crewmembers completing chemical testing would no longer be required to report these incidents to the Coast Guard. Costs No quantitative costs. Benefits $45,458 annualized and $319,281 10-year present value monetized industry benefits (cost savings) (7% discount rate). $637,688 annualized and $4,478,854 10-year present value monetized Government benefits (cost savings) (7% discount rate). Total of industry and Government benefits: $683,146 annualized and $4,798,134 10-year present value monetized combined benefits (cost savings) (7% discount rate). Affected Population

    We expect that this NPRM would affect the owners, agents, masters, operators, or persons in charge of a commercial vessel who, pursuant to 46 CFR 4.05-1, are required to notify the nearest Sector Office whenever a vessel is involved in a marine casualty. Specifically, the proposed regulations in this NPRM would affect those individuals who would have completed the necessary forms (CG-2692 series) to report a marine casualty where the only outcome was property damage of $25,000.01 through $72,000, or an SMI with property damage of $100,000.01 through $200,000 (CG-2692 series, supplemented with an appended SMI written report (CG-2692B).8

    8 “Report of Required Chemical Drug and Alcohol Testing Following a Serious Marine Incident.” See, 46 CFR 4.05-10.

    We used incident investigation data from the Coast Guard's Marine Information for Safety and Law Enforcement (MISLE) system from 2012 through 2014 9 to estimate the average number of vessel crewmembers affected by this NPRM. From 2012 through 2014, we found there was an average of 5,967 reports of a marine casualty per year, with one individual per vessel who we assume to be a vessel crewmember completing each report. An average of 271, or 4.5 percent of the annual 5,967 marine casualty reports, involved an SMI.

    9 This 3-year time period was used to be consistent with the existing Collection of Information, entitled “Report of Marine Casualty & Chemical Testing of Commercial Vessel Personnel,” which has OMB Control Number 1625-0001.

    Of the 5,967 marine casualty reports, approximately 5.3 percent were for a reportable marine casualty where the only outcome was property damage of $25,000.01 through $72,000. Therefore, we expect that an average of approximately 316 fewer reports of marine casualties would be required per year. Vessel owners and operators would benefit from a reduction in the time burden associated with a crewmember no longer having to prepare and submit the required marine casualty reporting paperwork.

    Of the 271 casualty reports that involved an SMI, approximately 7.9 percent (21 out of 271) were ones in which the sole outcome of the SMI was property damage of $100,000.01 through $200,000. Based on that annual average, the amendments proposed in this NPRM would likely result in a reduction of about 21 SMI written reports (CG-2692B) per year due to the proposed change to the monetary threshold amount for an SMI involving property damage. Because property damage of $100,000.01 through $200,000 exceeds the threshold for a reportable marine casualty, the forms for a marine casualty report (CG-2692 series) would still need to be completed. However, marine employers would no longer be required to complete the additional paperwork required for an SMI written report (CG-2692B). Consequently, marine employers would benefit from a reduction in the time burden associated with an SMI written report (CG-2692B) as well as cost savings associated with chemical savings.

    Benefits or Cost Savings to Industry

    The benefit or cost savings to industry is the difference between the current baseline cost to industry and the cost to industry after implementation of this NPRM.

    Current Reporting Cost to Industry for CG-2692 and CG-2692B

    To estimate the benefit to industry, we first estimate the current cost to industry. The cost to industry includes costs for reporting and recordkeeping for a reportable marine casualty and the costs for chemical testing for marine casualties designated as SMIs. The reporting and recordkeeping costs for marine casualties include the time to complete the forms (CG-2692 series) for a marine casualty, the time for approximately 10 percent of the forms to be internally reviewed before submission, and the time to complete the additional SMI written report (CG-2692B) pursuant to 46 CFR 4.06-60(a) if a marine casualty is designated as an SMI. The time estimates and wage rates for reporting and recordkeeping are taken from the existing Collection of Information, entitled “Report of Marine Casualty & Chemical Testing of Commercial Vessel Personnel,” which has OMB Control Number 1625-0001.10 We use the same time estimates and wage rates in this analysis to maintain consistency and to capture the changes due to this NPRM.

    10 Existing Collection of Information, “Report of Marine Casualty & Chemical Testing of Commercial Vessel Personnel”, OMB Control Number 1625-0001, Docket Number USCG-2015-0910, can be found at https://www.federalregister.gov/documents/2015/10/23/2015-27019/information-collection-request-to-office-of-management-and-budget-omb-control-number-1625-0001.

    An average of 5,967 marine casualty reports are submitted annually by vessel owners or operators. For each reportable marine casualty, the existing Collection of Information estimates that it takes about 1 hour for a vessel crewmember to complete the necessary forms (CG-2692 series). The existing Collection of Information also estimates that the position of vessel crewmember is analogous to a government employee at the grade level of a GS-03. The fully loaded wage rate for a GS-03 is $26 per hour, according to Commandant Instruction 7310.1P, “Reimbursable Standard Rates.” 11 The annual baseline cost to complete the current 5,967 CG-2692 series forms would be $155,142 (5,967 marine casualty reports × $26).

    11 Out of Government Rate for GS-03. Hourly Rates for Personnel ($), Enclosure (2) to Commandant Instruction 7310.1P. We use this version to maintain consistency with the existing COI 1625-0001.

    We estimate that it takes, on average, 1 hour to complete the CG-2692 series forms. However, we received public comments in 2011 on existing COI number 1625-0001 stating that completing the CG-2692 form takes more than one hour and one commenter stated that it can take up to 8 to 12 hours to complete the form.12 The reason for this difference is that some entities choose to have the forms reviewed by shore-side personnel, such as an attorney prior to submission to the Coast Guard. We adjusted our burden estimate to account for the additional layer of review. To account for this additional time, 10 percent of the forms submitted would have 10 hours of additional burden. The additional time reflects internal review by individuals employed by the owner or operator in addition to the vessel crewmember who completes the form. The additional reviewers may be shoreside representatives, port engineers, and attorneys, among others. We estimate the wage rate for this added review is done by personnel analogous to a government employee at the grade level of a GS-14. The fully loaded wage rate for a GS-14 is $101 per hour, per Commandant Instruction 7310.1P. The total annual cost of this additional time is $602,970 (597 marine casualty reports × 10 additional burden hours × $101).

    12 Docket ID: USCG-2011-0710. Comments can be found at https://www.regulations.gov/docket?D=USCG-2011-0710.

    When a marine casualty is designated as an SMI, the marine employer must also complete an SMI written report (CG-2692B). (See 46 CFR 4.06-60.) We estimate that it takes about 0.5 hours for a marine employer analogous to a government employee at the grade level of a GS-03 to complete this form. The annual cost to complete an SMI written report (CG-2692B) is about $3,523 (271 SMI reports × 0.5 hours × $26 per hour wage rate).

    Table 2 shows a summary of the current industry costs for reporting and recordkeeping.

    Table 2—Current Annual Industry Costs for Reporting and Recordkeeping Requirement Crewmembers/
  • responses
  • Burden hours
  • per response
  • Annual hour
  • burden
  • Wage rate Annual cost
  • burden
  • Written report of marine casualty 5,967 1 5,967 $26 $155,142 Additional Burden for 10% of Respondents 597 10 5,970 101 602,970 SMI written report 271 0.5 136 26 3,523 Totals 12,073 761,635 * Estimates may not sum due to independent rounding.

    As mentioned earlier in this NPRM, when a marine casualty is designated as an SMI, the crewmembers involved are required to take a chemical test pursuant to 46 CFR 4.06-3. The marine employer incurs costs for the actual costs of the chemical test and the time it takes for a crewmember to take the chemical test. The actual cost of the chemical test includes the costs of the chemical test collection kits, collector fees, Coast Guard alcohol-testing swabs, and costs of overnight mailing. These costs can vary, but on average, the actual chemical test costs approximately $100 per test.13 Each vessel crewmember involved in an SMI is required to take a chemical test. The number of vessel crewmembers required to take a chemical test can vary depending on the circumstances of the SMI. We analyzed the casualty reports that involved an SMI from MISLE and found an average of 1.5 crewmembers per SMI were required to take a chemical test. We used an estimate of 1.5 crewmembers to estimate the costs of chemical testing to account for the variation in crewmembers involved in SMIs. With an average of 271 SMIs per year, the current annual cost for the actual chemical tests is $40,650 (271 SMIs × average of 1.5 crewmembers × $100 per test).

    13 Most marine employers use a consortium that simplifies and reduces the costs per test and also assists in managing a company's drug-testing program. There are variables associated with the cost of testing, as costs can vary depending on the number of personnel included in a plan and the type of testing plan adopted by a particular company. Based on discussions with industry and Coast Guard medical testing contract data that is not publically available, we estimated testing costs of $79 and $114. We are, therefore, using an average cost of $100 for this analysis [($79+$114)/2, rounded].

    In addition to the cost of the chemical tests, there is a cost associated with the time it takes a vessel crewmember to complete the chemical test. We estimate that it takes 1 hour for a crewmember to complete the chemical test.14 We obtained the wage rate of the crewmember from the U.S. Bureau of Labor Statistics (BLS), using Occupational Series 53-5000, Water Transportation Workers (May 2015). The BLS reports that the mean hourly wage rate for a water transportation worker is $31.11.15 To account for employee benefits, we use a load factor of 1.53, which we calculated from 2016 first quarter BLS data.16 The loaded wage for a crewmember is estimated at $47.60 ($31.11 wage rate × 1.53 load factor). The cost of the time for a crewmember to take the chemical test is $19,349 (271 SMIs × average of 1.5 crewmembers × 1 hour burden × $47.60 wage rate). Therefore, the current annual cost to industry for chemical testing is $59,999 (see Table 3). Adding the costs for chemical testing of $59,999 to the cost for reporting and recordkeeping of $761,635 (see Table 2), brings the current total annual cost to industry to $821,634.

    14 Hourly estimate is from Coast Guard subject matter experts, and takes into account that these are not planned tests, but instead are emergent tests—required as a result of accidents—that must be taken no later than 32 hours after the incident.

    15 Mean wage, http://www.bls.gov/oes/2015/may/oes_nat.htm

    16 Employer Costs for Employee Compensation provides information on the employer compensation and can be found at http://data.bls.gov/data/. The loaded wage factor is equal to the total compensation of $27.61 divided by the wages and salary of $18.05. Values for the total compensation and wages and salary are for all private industry workers in the transportation and material moving occupations, 2016 1st quarter.

    Table 3—Current Annual Industry Costs for Chemical Testing SMIs per year Average
  • crewmembers
  • tested per SMI
  • Cost of
  • testing
  • procedures
  • Hours to
  • take test
  • Wage rate Total cost
  • of testing
  • procedures
  • 271 1.5 $100 1 $47.60 $59,999
    Total Reporting Costs to Industry After Implementation of the NPRM

    Increasing the dollar threshold amount for a reportable marine casualty involving property damage, as well as the dollar threshold amount for property damage within the definition of a “serious marine incident,” would reduce the number of marine casualty responses by 5.3 percent, and the number of SMIs by 7.9 percent, annually. The burden hours per response would remain the same, but we estimate that the total number of responses would decrease to 5,651 for marine casualties and 250 for SMIs, resulting in 316 fewer reported marine casualties and 21 fewer SMIs. The following sections replicate the calculation of marine casualty reporting and chemical testing, but reflect the reduced number of reports and testing under the revised thresholds.

    For each reportable marine casualty, we estimate that it takes about 1 hour for a vessel crewmember to complete all parts of the necessary forms at a wage rate of $26. We estimate that the cost to complete the reduced number of marine casualty forms would be $146,926 (5,651 marine casualty reports × $26).

    In addition to the time to complete the forms, some of the marine casualty forms would require additional processing time. The additional processing time reflects internal review by individuals employed by the owner or operator, in addition to the time needed by the vessel crewmember who completes the form. The additional reviewers may be shoreside representatives, port engineers, or attorneys, among others. To account for this time, 10 percent 17 of the forms submitted (565 forms) would have 10 hours of additional burden, and the wage rate for this added review would be done by personnel analogous to a government employee at the grade level of a GS-14. We estimate that the total cost of this additional time after the implementation of this NPRM would be $570,650 (565 marine casualty reports × 10 additional burden hours × $101).

    17 Docket ID: USCG-2011-0710, https://www.regulations.gov/docket?D=USCG-2011-0710.

    As mentioned earlier in this NPRM, when a marine casualty is designated as an SMI, the marine employer must complete an SMI written report (CG-2692B). We estimate that it takes about 0.5 hours for a marine employer analogous to a government employee at a grade level of a GS-03 to complete this form.18 We estimate that the cost to complete the additional forms for an SMI after implementation of this NPRM would be $3,250 (250 SMI reports × 0.5 hours × $26 per hour wage rate).

    18 The wage rate for a marine employer to complete the form CG-2692B and to report chemical test results to the OCMI is taken from existing COI number 1625-0001.

    Table 4 shows a summary of the industry costs after implementation of this NPRM.

    Table 4—Annual Industry Costs for Reporting and Recordkeeping With Revised Reporting Thresholds Requirement Crewmembers/
  • responses
  • Burden hours
  • per response
  • Annual hour
  • burden
  • Wage rate Annual
  • cost burden
  • Written report of marine casualty 5,651 1 5,651 $26 $146,926 Additional Burden for 10% of Respondents 565 10 5,650 101 570,650 SMI written report 250 0.5 125 26 3,250 Totals 11,426 720,826 Note: Estimates may not sum due to independent rounding.

    The marine employer incurs the actual costs of the chemical test as well as the wage burden it takes for a crewmember to complete the chemical test. On average, each chemical test costs approximately $100. We use an estimate of 1.5 crewmembers to estimate the costs of chemical testing to account for the variation in crewmembers involved in SMIs. With an average of 250 SMIs per year, the annual cost after implementation of this NPRM for the actual chemical tests is $37,500 (250 SMIs × average of 1.5 crewmembers × $100 per test).

    In addition to the cost of the chemical tests, there is a cost associated with the time it takes a vessel crewmember to complete the chemical test. We estimate that it takes 1 hour for a crewmember to complete the chemical test at a loaded wage rate of $47.60 per hour. We estimate that the cost of the time for a crewmember to take the chemical test under the NPRM would be $17,850 (250 SMIs × average of 1.5 crewmembers × 1 hour burden × $47.60 wage rate). Therefore, the annual cost to industry for chemical testing after implementation of this NPRM would be $55,350 (see Table 5). Adding the costs for chemical testing of $55,350 to the cost for reporting and recordkeeping of $720,826 (see Table 4) brings the estimated total annual cost to industry to $776,176, if this NPRM is implemented.

    Table 5—Annual Industry Costs for Chemical Testing After Implementation of the NPRM SMIs per year Average
  • Crewmembers
  • tested per SMI
  • Cost of testing procedures Hours to take test Wage Rate Total cost of testing
  • procedures
  • 250 1.5 $100 1 $47.60 $55,350

    The current annual burden of reporting marine casualties and SMIs under the current dollar amount thresholds is $821,634. The annual burden of reporting under the proposed new thresholds would be $776,176. Therefore, we estimate that the annual cost savings or benefit to industry after implementation of this NPRM would be $45,458. Table 6 shows a summary of the annual current industry cost burden, the annual industry cost burden after implementation of the NPRM, and the annual cost savings resulting from implementation of this NPRM.

    Table 6—Total Annual Cost Savings to Industry by Requirement After Implementation of the NPRM Requirement Current annual industry cost burden Annual
  • industry cost burden after
  • implementation
  • of NPRM
  • Annual
  • industry cost
  • savings after
  • implementation of NPRM
  • Written report of marine casualty $155,142 $146,926 $8,216 Additional burden for 10% of respondents 602,970 570,650 32,320 SMI written report 3,523 3,250 273 Testing procedures 59,999 55,350 4,649 Total 821,634 776,176 45,458

    The total 10-year undiscounted industry cost savings of this NPRM would be $454,584. Table 7 shows the 10-year estimated discounted cost savings to industry to be about $319,281 with an annualized cost savings of approximately $45,458 using a 7-percent discount rate.

    Table 7—Total Estimated Cost Savings or Industry Benefits of the NPRM Over a 10-year Period of Analysis [Discounted Costs at 7 and 3 Percent] Year Total
  • undiscounted
  • costs
  • Total, discounted 7% 3%
    1 $45,458 $42,484 $44,134 2 45,458 39,705 42,849 3 45,458 37,108 41,601 4 45,458 34,680 40,389 5 45,458 32,411 39,213 6 45,458 30,291 38,071 7 45,458 28,309 36,962 8 45,458 26,457 35,885 9 45,458 24,726 34,840 10 45,458 23,109 33,825 Total 454,584 319,281 387,769 Annualized 45,458 45,458
    Benefits or Cost Savings to Government

    The benefit to the Federal Government is the difference between the baseline current cost to the Coast Guard and the cost to the Coast Guard after implementation of this NPRM.

    Current Costs to Government

    We first estimated the current costs to the Coast Guard, which include the cost to investigate a marine casualty and the cost of processing marine casualty forms. Because an SMI is a type of marine casualty, the estimate for the cost of the investigation and the processing of the casualty forms includes those incidents that constitute an SMI. Reportable marine casualties are investigated by the Coast Guard. Some investigations may be more complex than others, depending on the incident. The Coast Guard reviewed the CG-741 (Coast Guard Office of Shore Forces) Sector Staffing Model to estimate the average number of hours per investigation across all incident types. The Sector Staffing Mode assigns a total hourly effort for the type of incident (e.g., allision, grounding, collision) that is matched against MISLE data, which then provides the resource needs for each sector. The Coast Guard estimates that, across all types of incidents, these investigations take an average of 25 hours for a Lieutenant (LT; O-3) to complete. There is an average of 5,967 marine casualty cases per year. The fully loaded wage rate for an O-3 is $78 per hour, per Commandant Instruction 7310.1P. As shown in Table 8, the current annual cost of investigations is $11,635,650 (5,967 reportable marine casualties × 25 burden hours × $78 wage rate).

    The Coast Guard must process the forms submitted for each reportable marine casualty. The Coast Guard currently processes an average of 5,967 marine casualty reports per year. To maintain consistency and capture the changes to this NPRM, the time estimates and wage rates for processing the forms are taken from the existing COI 1625-0001. For each reportable marine casualty, we estimate that it takes about 1 hour by a Lieutenant Junior Grade (LTJG; O-2) to process the forms (CG-2692 series), including auditing at a local field investigation office and the entry of pertinent information into Coast Guard's MISLE system. The fully loaded wage rate for an O-2 is $68 per hour, per Commandant Instruction 7310.1P. As shown in Table 8, the current annual cost for the Coast Guard to process reportable marine casualties is $405,756 (5,967 reportable marine casualties × 1 burden hour × $68 wage rate). We estimate that the total current annual cost to the Federal Government would be $12,041,406.

    Table 8—Current Annual Government Costs Cost category Reportable
  • marine
  • casualties
  • Burden hours
  • per response
  • Annual hours Wage rate Annual cost
    Investigation 5,967 25 149,175 $78 $11,635,650 Processing marine casualty reports 5,967 1 5,967 68 405,756 Total 12,041,406

    Under this NPRM, increasing the dollar amount threshold for property damage would reduce the number of reportable marine casualties by 5.3 percent, resulting in 316 fewer reportable marine casualties. The burden hours per response for investigations and processing marine casualty reports would remain the same, but the average number of reportable marine casualties would decrease to 5,651 per year. We estimate that it takes an average of 25 hours for an O-3 to complete and investigate and about 1 hour for an O-2 to process the forms for each reportable marine casualty. As shown in Table 9, the annual cost for the Coast Guard to complete investigations under the NPRM would be approximately $11,019,450 (5,651 reportable marine casualties × 25 hour burden × $78). The annual cost to process reportable marine casualties after implementation of this NPRM would be approximately $384,268 (5,651 reportable marine casualties × 1 hour burden × $68). We estimate that the total annual cost to the Federal Government would be approximately $11,403,718 after implementation of this NPRM.

    Table 9—Estimated Annual Government Costs After Implementation of the NPRM Cost category Reportable
  • marine
  • casualties
  • Burden hours
  • per response
  • Annual hours Wage rate Annual cost
    Investigation 5,651 25 141,275 $78 $11,019,450 Processing marine casualty report 5,651 1 5,651 68 384,268 Total 11,403,718

    The current annual cost to the Coast Guard to process marine casualty reports is $12,041,406. The annual cost to the Coast Guard after implementation of this NPRM would be approximately $11,403,718. Therefore, the annual Federal Government benefit of reducing those reportable marine casualties that involve property damage alone would be $637,688. Though this reduction does not result in a need for fewer Coast Guard investigators, the existing investigators would be able to focus on higher priority investigations. We estimate the total undiscounted cost savings or benefit of this NPRM to the Federal Government to be $6,376,880 over the 10-year period of analysis. Table 10 shows the total estimated 10-year discounted cost savings to the Federal Government to be $4,478,854, with an annualized cost savings of $637,688 using a 7-percent discount rate.

    Table 10—Total Estimated Cost Savings or Government Benefits of the NPRM Over a 10-Year Period of Analysis [Discounted costs at 7 and 3 percent] Year Total
  • undiscounted
  • costs
  • Total,
  • discounted
  • 7% 3%
    1 $637,688 $595,970 $619,115 2 637,688 556,981 601,082 3 637,688 520,543 583,575 4 637,688 486,489 566,578 5 637,688 454,663 550,075 6 637,688 424,918 534,054 7 637,688 397,120 518,499 8 637,688 371,140 503,397 9 637,688 346,860 488,735 10 637,688 324,168 474,500 Total 6,376,880 4,478,854 5,439,608 Annualized 637,688 637,688
    Total Benefits of the NPRM

    Table 11 presents the total estimated benefits or cost savings of the NPRM using 7- and 3-percent discount rates. We estimate the total 10-year (industry and Federal Government) undiscounted cost savings of this NPRM to be about $6,831,464. We estimate the total 10-year discounted cost savings of this NPRM to be about $4,798,134 and the annualized benefit to be about $683,146 using a 7-percent discount rate.

    Table 11—Total Estimated Benefits of the NPRM Over a 10-Year Period of Analysis [Discounted benefits at 7 and 3 percent] Year Total
  • undiscounted
  • costs
  • Total,
  • discounted
  • 7% 3%
    1 $683,146 $638,455 $663,249 2 683,146 596,687 643,931 3 683,146 557,651 625,176 4 683,146 521,169 606,967 5 683,146 487,074 589,288 6 683,146 455,209 572,124 7 683,146 425,429 555,461 8 683,146 397,597 539,282 9 683,146 371,586 523,575 10 683,146 347,277 508,325 Total 6,831,464 4,798,134 5,827,377 Annualized 683,146 683,146
    B. Small Entities

    Under the Regulatory Flexibility Act, 5 U.S.C. 601-612, we have considered whether this NPRM would have a significant economic impact on a substantial number of small entities. 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.

    This NPRM reduces the burden on industry by increasing the monetized threshold amounts for reporting a marine casualty incident and an SMI. There is no effect on any crewmember, owner, or operator of a vessel that does not have a reportable marine casualty or serious marine incident. There is no effect on any crewmember, owner, or operator of a vessel that has a marine casualty with property damage less than or equal to $25,000, or an SMI with damage less than or equal to $100,000, as these individuals currently do not have to report the casualty and would not have to do so under this NPRM. There is no effect on any crewmember, owner, or operator of a vessel that has a marine casualty with property damage greater than $72,000, or an SMI with property damage greater than $200,000, as these individuals must currently report such casualties and perform chemical testing, and would continue to be required to do so under this NPRM.

    This NPRM would not impose any direct costs on any specific industry. The only affected individuals are owners or operators of those vessels that would be involved in a marine casualty where the only outcome is property damage of $25,000.01 through $72,000, or an SMI where the only outcome is property damage of $100,000.01 through $200,000. These entities, which would have incurred costs to report these casualties or conduct chemical testing, would be positively impacted from this NPRM because of the increase in the monetized threshold amounts.

    As discussed in Section V of this NPRM, we expect that an average of approximately 316 fewer reports of marine casualties would be required per year, with one individual per vessel who we assume to be a vessel crewmember completing each report. We assume the 316 marine casualty reports occur on 316 separate vessels. It is possible a vessel could have multiple incidents in one year, resulting in multiple marine casualty reports, but for this analysis we assume the 316 fewer reports are ascribed to 316 separate vessels. We compared this affected population to the total population that could have a marine casualty and be required to prepare and submit marine casualty reporting paperwork. We used the MISLE Vessel Population data to estimate the total population that could be impacted. We found the current total population of vessels that could have a marine casualty and be required to submit paperwork is 209,475.19 Therefore, the 316 fewer vessels preparing marine casualty paperwork represents 0.15 percent of the total population.

    19 Population data was pulled from MISLE on 9/28/2016. The population is for commercial vessels that are active and in-service. The population includes commercial fishing vessels, fish processing vessels, freight barges, industrial vessels, mobile offshore drilling units, offshore supply vessels, oil recovery, passenger (inspected and uninspected), passenger barges (inspected and uninspected), public freights, public tankship/barges, unclassified public vessels, research vessels, school ships, tank barges, tank ships, and towing vessels.

    The owners or operators of these 316 vessels would benefit from a reduction in time burden associated with a crewmember no longer having to prepare and submit the required marine casualty reporting paperwork. Table 6 in Section V summarizes the annual cost savings to industry by requirement. Table 13 below shows these annual cost savings, as well as the vessel population we estimated would benefit from each reduction in paperwork or testing requirement.

    Table 13—Maximum Potential Cost Savings per Vessel per Incident Requirement Total annual cost savings Vessel
  • population
  • Maximum
  • potential
  • cost savings
  • per vessel
  • Written report of marine casualty $8,216 316 $26 Additional Burden for 10% of Respondents 32,320 32 1,010 SMI written report 273 21 13 Testing Procedures 4,649 21 221 Totals 45,458 1,270

    The total cost savings per vessel for the population of 316 vessels benefiting from this NPRM will vary depending on the requirements. For example, we estimate that 32 of the vessels (10 percent of population, rounded) would have savings due to a reduction in marine casualty reports ($26) and an additional savings for the additional burden of reviewing the paperwork ($1,010) in any given year. Therefore, a one-time savings could be $1,036 for a vessel with only these two requirements. The minimum savings would be $26 for a vessel that only had the requirement of preparing and submitting the marine casualty report. If a vessel would have had to complete all the requirements in Table 13, the maximum cost savings would be $1,270. This maximum cost savings would be for a vessel with a marine casualty designated as an SMI that completed additional paperwork and reported the chemical test results to the OCMI. Therefore, the owner or operator of the 316 vessels impacted by this NPRM would have to have maximum annual revenues of $2,600 to $127,000 for this NPRM to have a positive impact greater than 1 percent.

    Therefore, pursuant to section 605(b) of the Regulatory Flexibility Act, 5 U.S.C. 605(b), the Coast Guard certifies that this NPRM would not have a significant economic impact on a substantial number of small entities because the increase in the monetized property damage threshold amounts reduces the reporting burden on crewmembers or vessel owners or operators who complete the marine casualty reports or perform the required chemical testing, as described above. This NPRM would reduce the hour burden associated with marine casualty reporting and chemical testing and would not adversely impact small entities as defined by the SBA in 13 CFR. 121.201. If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this NPRM would have a significant economic impact on it, please submit a comment to the Docket Management Facility at the address under the ADDRESSES section of this NPRM. In your comment, explain why you think it qualifies and how and to what degree this NPRM would economically affect it.

    C. Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996, Public Law 104-121, we want to assist small entities in understanding this NPRM so that they can better evaluate its effects on them and participate in the rulemaking. If you think that the NPRM would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please consult with the Coast Guard personnel listed under the FOR FURTHER INFORMATION CONTACT section of this NPRM. 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.

    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).

    D. Collection of Information

    This NPRM would call for a collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). As defined in 5 CFR 1320.3(c), “collection of information” comprises reporting, recordkeeping, monitoring, posting, labeling, and other similar actions. The title and description of the information collection, a description of those who must collect the information, and an estimate of the total annual burden follow.

    Under the provisions of the NPRM, the Coast Guard would collect information from ship personnel who are involved in marine casualties resulting in more than $72,000 in property damage, and serious marine incidents resulting in more than $200,000 in property damage. This proposed requirement would amend an existing collection of information by effectively reducing the number of instances requiring information to be collected under OMB control number 1625-0001.

    Title: Report of Marine Casualty & Chemical Testing of Commercial Vessel Personnel.

    OMB Control Number: 1625-0001.

    Summary of the Collection of Information: This NPRM would require responses such as the preparation of written notification in the form of CG-2692 (series), and the processing of records. We use this information to identify pertinent safety lessons and to initiate appropriate steps for reducing the likelihood of similar accidents in the future. The collection of information would aid the regulated public in assuring safe practices.

    Need for Information: These reporting requirements permit the Coast Guard to initiate the immediate investigation of marine casualties as required by 46 U.S.C. 6301, in order to determine the causes of casualties and whether existing safety standards are adequate, or whether new laws or regulations need to be developed. Receipt of a marine casualty report is often the only way in which the Coast Guard becomes aware of a marine casualty. It is therefore a necessary first step that provides the Coast Guard with the opportunity to determine the extent to which a casualty will be investigated.

    Proposed Use of Information: In the short term, the information provided in the report may also trigger corrective safety actions addressing immediate hazards or defective conditions, further investigations of mariner conduct or professional competence, or civil or criminal enforcement actions by the Coast Guard, other Federal agencies, or state and local authorities. In the long term, information contained in the report becomes part of the MISLE marine casualty database at Coast Guard Headquarters. The Coast Guard uses this information in MISLE to identify safety problems and long term trends, publish casualty summaries and annual statistics for public use, establish whether additional safety oversight or regulation is needed, measure the effectiveness of existing regulatory programs, and better focus limited Coast Guard marine safety resources.

    Description of the Respondents: The respondents are those owners, agents, masters, operators, or persons in charge that notify the nearest Sector Office, Marine Inspection Office, or Coast Guard Group Office whenever a vessel is involved in a marine casualty. Specifically, this NPRM would affect those vessel crewmembers and marine employers who completed the necessary forms to report a marine casualty where the only outcome was property damage of $25,000.01 through $72,000, or an SMI with property damage of $100,000.01 through $200,000 (CG-2692 series).

    Number of Respondents: We estimate the number of respondents would be 5,651 per year. This is a decrease of 316 respondents from an OMB-approved number of respondents of 5,967 per year. We estimate 250 of these marine casualty respondents would fall under the category of SMI respondents and be required to fill out an additional SMI written report (CG-2692B). This is a decrease of 21 respondents per year from 271 respondents.

    Frequency of Response: The notification response would be required only if a marine casualty occurs as defined in 46 CFR 4.03-2 and 46 CFR 4.05-1.

    Burden of Response: For each response, we estimate that it takes about 1 hour for a vessel crewmember to complete all of the necessary forms (CG-2692 series). In addition, some marine casualty forms may undergo additional processing by the respondents. To account for this additional time, 10 percent of the forms submitted would have 10 hours of additional burden.20 When a marine casualty is designated as an SMI, the marine employer must also complete an SMI written report (CG-2692B). We estimate that it takes about 0.5 hours for a respondent to complete an SMI written report (CG-2692B).

    20 The Coast Guard estimates that it takes up to 1 hour to complete Form CG-2692 (series). However, we received public comments in 2013 on COI number 1625-0001 stating that some submitters take more time—up to 8 to 12 hours—to complete the form. Docket ID: USCG-2011-0710, https://www.regulations.gov/docket?D=USCG-2011-0710. The reason for this difference is that some entities have the form(s) reviewed by shore-side personnel, such as an attorney, prior to submission to the Coast Guard. The practice of having a form reviewed by an attorney is not required by Coast Guard regulation. While we believe that this does not typically occur, we adjusted our burden estimate to account for the added review.

    Estimate of Total Annual Burden: We estimate that the number of responses would decrease by 316 per year. At 1 hour per response, the reduced burden for submitting the responses would be 316 hours. In addition, 10 percent of these responses would have required additional processing of 10 hours per response, for a reduction of an additional 320 burden hours.21 We estimate 21 of the responses would have been designated as an SMI. At 0.5 hours per SMI, the burden would be reduced by 11 hours (rounded). Therefore, this NPRM would decrease the total annual burden by 647 hours.22

    21 Due to rounding in the estimates, the current burden for the additional review is 5,970 hours. The burden under this NPRM is 5,650 hours, which is a reduction of 320 hours.

    22 The current annual burden in COI 1625-0001 for completing the marine casualty forms, the additional processing for some respondents, and the time to complete the SMI forms is 12,073 hours. The annual burden under this NPRM is 11,426 hours, a reduction of 647 hours.

    As required by 44 U.S.C. 3507(d), we will submit a copy of this NPRM to OMB for its review of the collection of information.

    We ask for public comment on the proposed collection of information to help us determine how useful the information is, whether it can help us perform our functions better, whether it is readily available elsewhere, how accurate our estimate of the burden of collection is' how valid our methods for determining burden are, how we can improve the quality, usefulness, and clarity of the information, and how we can minimize the burden of collection.

    If you submit comments on the collection of information, submit them both to OMB and to the Docket Management Facility where indicated under the ADDRESSES section of this NPRM, by the date under the DATES section.

    You are not required to respond to a collection of information unless it displays a currently valid control number from OMB. Before the Coast Guard could enforce the collection of information requirements in this NPRM, OMB would need to approve the Coast Guard's request to collect this information.

    E. Federalism

    A rule has implications for federalism under E.O. 13132 (“Federalism”) if it has a substantial direct effect on 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 NPRM under E.O. 13132 and have determined that it is consistent with the fundamental federalism principles and preemption requirements as described in E.O.13132. Our analysis follows.

    It is well settled that States may not regulate in categories reserved for regulation by the Coast Guard. It is also well settled that Coast Guard regulations promulgated under the authority of 46 U.S.C. 6101 are within a field foreclosed from regulation by the States. See U.S. v. Locke, 529 U.S. 89, 115-16 (2000) (stating “Congress intended that the Coast Guard regulations be the sole source of a vessel's [marine casualty] reporting obligations.”).

    This NPRM would change the property damage threshold amounts for reporting marine casualties and serious marine incidents, which is within the sole purview of the Coast Guard to regulate pursuant to 46 U.S.C. 6101 and the principles discussed in Locke. Thus, the proposed regulations are consistent with the principles of federalism and preemption requirements in E.O. 13132.

    While it is settled that States may not regulate in categories in which Congress intended the Coast Guard to be the sole source of a vessel's obligations, we recognize the key role that State and local governments may have in making regulatory determinations. Additionally, for rules with federalism implications and preemptive effect, E.O 13132 specifically directs agencies to consult with State and local governments during the rulemaking process. If you believe this NPRM has implications for federalism under E.O. 13132, please contact the person listed in the FOR FURTHER INFORMATION section of this preamble.

    F. 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 NPRM would not result in such an expenditure, we do discuss the effects of this NPRM elsewhere in this preamble.

    G. Taking of Private Property

    This NPRM would not cause a taking of private property or otherwise have taking implications under E.O. 12630 (“Governmental Actions and Interference with Constitutionally Protected Property Rights”).

    H. Civil Justice Reform

    This NPRM meets applicable standards in sections 3(a) and 3(b)(2) of E.O. 12988, (“Civil Justice Reform”), to minimize litigation, eliminate ambiguity, and reduce burden.

    I. Protection of Children

    We have analyzed this NPRM under E.O. 13045 (“Protection of Children from Environmental Health Risks and Safety Risks”). This NPRM is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children.

    J. Indian Tribal Governments

    This NPRM 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.

    K. Energy Effects

    We have analyzed this NPRM under E.O. 13211 (“Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use”). We have determined that this NPRM is not a “significant energy action” under that order because it is not a “significant regulatory action” under E.O. 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy.

    L. Technical Standards

    The National Technology Transfer and Advancement Act, codified as a note to 15 U.S.C. 272, directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through OMB, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies.

    This NPRM does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

    M. Environment

    We have analyzed this NPRM under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.1D, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969, 42 U.S.C. 4321-4370f, and we 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. A preliminary environmental analysis checklist supporting this categorical exclusion determination is available in the docket where indicated under the “Public Participation and Request for Comments” section of this preamble.

    This NPRM involves regulations concerning marine casualties and proposes to update the monetary threshold amounts for a reportable marine casualty as well as the definition of an SMI relative to property damage. Thus, we expect that this NPRM would likely be categorically excluded under Section 2.b.2 and figure 2-1, paragraph 34(d) of the Instruction. We seek any comments or information that may lead to the discovery of a significant environmental impact from this NPRM.

    List of Subjects in 46 CFR Part 4

    Administrative practice and procedure, Drug testing, Investigations, Marine safety, National Transportation Safety Board, Nuclear vessels, Radiation protection, Reporting and recordkeeping requirements, Safety, Transportation.

    For the reasons discussed in the preamble, the Coast Guard proposes to amend 46 CFR part 4 as follows:

    TITLE 46—SHIPPING PART 4—MARINE CASUALTIES AND INVESTIGATIONS 1. The authority citation for part 4 continues to read as follows: Authority:

    33 U.S.C. 1231; 43 U.S.C. 1333; 46 U.S.C. 2103, 2303a, 2306, 6101, 6301, and 6305; 50 U.S.C. 198; Department of Homeland Security Delegation No. 0170.1. Subpart 4.40 issued under 49 U.S.C. 1903(a)(1)(E).

    2. In § 4.03-2, revise paragraph (a) (3) to read as follows:
    § 4.03-2 Serious marine incident.

    (a) * * *

    (3) Damage to property, as defined in § 4.05-1(a)(7) of this part, in excess of $200,000;

    3. In § 4.05-1, revise paragraph (a)(7) to read as follows:
    § 4.05-1 Notice of marine casualty.

    (a) * * *

    (7) An occurrence causing property-damage in excess of $72,000, this damage including the cost of labor and material to restore the property to its condition before the occurrence, but not including the cost of salvage, cleaning, gas-freeing, drydocking, or demurrage.

    Dated: January 13, 2017. V.B. Gifford, Captain, U.S. Coast Guard, Director of Inspections and Compliance.
    [FR Doc. 2017-01323 Filed 1-19-17; 8:45 am] BILLING CODE 9110-04-P
    FEDERAL COMMUNICATIONS COMMISSION 47 CFR Parts 6, 7, 14, 64, and 67 [CG Docket No. 16-145 and GN Docket No. 15-178; FCC 16-169] Transition From TTY to Real-Time Text Technology AGENCY:

    Federal Communications Commission.

    ACTION:

    Proposed rule.

    SUMMARY:

    In this document, the Commission seeks comment on further actions the Commission could undertake to continue the transition from outdated text telephony (TTY) technology to a reliable and interoperable means of providing real-time text (RTT) communication over Internet Protocol (IP) enabled networks and services for people who are deaf, hard of hearing, deaf-blind, or have a speech disability.

    DATES:

    Comments are due February 22, 2017. Reply Comments are due March 24, 2017.

    ADDRESSES:

    You may submit comments, identified by CG Docket No. 16-145 and GN Docket No. 15-178, by any of the following methods:

    Electronic Filers: Comments may be filed electronically using the Internet by accessing the Commission's Electronic Comment Filing System (ECFS), through the Commission's Web site http://apps.fcc.gov/ecfs/. Filers should follow the instructions provided on the Web site for submitting comments. For ECFS filers, in completing the transmittal screen, filers should include their full name, U.S. Postal service mailing address, and CG Docket No. 16-145 and GN Docket No. 15-178.

    Paper Filers: Parties who choose to file by paper must file an original and one copy of each filing. If more than one docket or rulemaking number appears in the caption of this proceeding, filers must submit two additional copies for each additional docket or rulemaking number. Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.

    For detailed instructions for submitting comments and additional information on the rulemaking process, see the SUPPLEMENTARY INFORMATION section of this document.

    FOR FURTHER INFORMATION CONTACT:

    Michael Scott, Consumer and Governmental Affairs Bureau, at (202) 418-1264 or email [email protected], or Suzy Rosen Singleton, Consumer and Governmental Affairs Bureau at (202) 510-9446 or email [email protected]

    SUPPLEMENTARY INFORMATION:

    Pursuant to 47 CFR 1.415, 1.419, interested parties may file comments and reply comments on or before the dates indicated in the DATES section. Comments may be filed using the Commission's ECFS. See Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121 (1998).

    • All hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to FCC Headquarters at 445 12th Street SW., Room TW-A325, Washington, DC 20554. The filing hours are 8:00 a.m. to 7:00 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes must be disposed of before entering the building.

    • Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743.

    • U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street SW., Washington DC 20554.

    This is a summary of the Commission's document FCC 16-169, Transition from TTY to Real-Time Text Technology, Further Notice of Proposed Rulemaking, adopted December 15, 2016, and released December 16, 2016, in CG Docket No. 16-145 and GN Docket No. 15-178. The Report and Order, FCC 16-169, adopted on December 15, 2016, and released on December 16, 2016, is published elsewhere in this issue. The full text of document FCC 16-169 will be available for public inspection and copying via ECFS, and during regular business hours at the FCC Reference Information Center, Portals II, 445 12th Street SW., Room CY-A257, Washington, DC 20554. This proceeding shall be treated as a “permit-but-disclose” proceeding in accordance with the Commission's ex parte rules. 47 CFR 1.1200 et seq. Persons making ex parte presentations must file a copy of any written presentation or a memorandum summarizing any oral presentation within two business days after the presentation (unless a different deadline applicable to the Sunshine period applies). Persons making oral ex parte presentations are reminded that memoranda summarizing the presentation must (1) list all persons attending or otherwise participating in the meeting at which the ex parte presentation was made, and (2) summarize all data presented and arguments made during the presentation. If the presentation consisted in whole or in part of the presentation of data or arguments already reflected in the presenter's written comments, memoranda or other filings in the proceeding, the presenter may provide citations to such data or arguments in his or her prior comments, memoranda, or other filings (specifying the relevant page and/or paragraph numbers where such data or arguments can be found) in lieu of summarizing them in the memorandum. Documents shown or given to Commission staff during ex parte meetings are deemed to be written ex parte presentations and must be filed consistent with 47 CFR 1.1206(b). In proceedings governed by 47 CFR 1.49(f) or for which the Commission has made available a method of electronic filing, written ex parte presentations and memoranda summarizing oral ex parte presentations, and all attachments thereto, must be filed through the electronic comment filing system available for that proceeding, and must be filed in their native format (e.g., .doc, .xml, .ppt, searchable .pdf). Participants in this proceeding should familiarize themselves with the Commission's ex parte rules.

    To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an email to [email protected] or call the Consumer and Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (TTY).

    Initial Paperwork Reduction Act of 1995 Analysis

    Document FCC 16-169 seeks comment on proposed rule amendments that may result in modified information collection requirements. If the Commission adopts any modified information collection requirements, the Commission will publish another notice in the Federal Register inviting the public to comment on the requirements, as required by the Paperwork Reduction Act. Public Law 104-13; 44 U.S.C. 3501-3520. In addition, pursuant to the Small Business Paperwork Relief Act of 2002, the Commission seeks comment on how it might further reduce the information collection burden for small business concerns with fewer than 25 employees. Public Law 107-198; 44 U.S.C. 3506(c)(4).

    Synopsis

    1. Real-time text is a mode of communication that permits text to be sent immediately as it is being created. The Commission's proposed action seeks to further ensure that people who are deaf, hard of hearing, deaf-blind, or have a speech disability can fully utilize and benefit from twenty-first century communications technologies as the United States migrates from legacy circuit-switched systems to IP-based networks and services.

    2. In document FCC 16-169, the Commission seeks further comment on:

    • Setting an appropriate timeline or trigger for the sunset of service providers' obligation to ensure backward compatibility between real-time text (RTT) and text telephone (TTY) technology, and a proposed date of 2021 for this purpose;

    • Integrating RTT into the provision of telecommunications relay services (TRS);

    • Addressing the RTT needs of people with cognitive disabilities and people who are deaf-blind through the provision of block mode and connectivity with refreshable Braille displays.

    Establishing a Deadline To Sunset the Obligation To Ensure RTT Is Backward Compatible With TTY Technology

    3. In document FCC 16-169, the Commission concludes that it is premature to establish a deadline to sunset the obligation to ensure that services and equipment that support RTT is backward compatible with TTY technology, until the Commission has gathered additional information about the deployment and effectiveness of the transition from TTY to RTT technology. The Commission believes that collecting such information will be useful for a Commission determination as to when TTY users have transitioned to RTT to a point that warrants elimination of the backward compatibility requirement. To this end, the Commission seeks comment on the type of data and metrics that can be used to monitor the availability, adoption, and acceptance of RTT services and devices. For example, would it be useful to gather data on the total number of end user devices supporting RTT that are made available for sale? Would it also be helpful to track the adoption of RTT on services and devices used by public safety answering points (PSAPs), government entities, and businesses? To assess the impact of RTT on PSAPs without IP connectivity, should the Commission track the frequency of RTT-to-TTY 911 calls, and how should the Commission address contingencies if there is an adverse impact? To what extent can service providers also gather data on RTT usage by consumers? Next, the Commission seeks input on when and how such data should be reported. The Commission currently requires wireless service providers who have been granted waivers of the TTY obligations to report to the Commission semi-annually on the progress of their RTT implementation efforts. Should the Commission require similar reports of wireless and wireline service providers and manufacturers? Should certain actions, such as the grant of a waiver, trigger a reporting requirement? Alternatively, should any reporting requirement be postponed until after the requirements for the wireline transition have been adopted? Are there other reports collected by the Commission through which it should collect this or similar information on RTT?

    4. The Commission notes that by 2021, Tier I wireless service providers will have had the opportunity to support RTT on their IP-based networks for three years, manufacturers will have been producing RTT-compliant equipment for two years, and smaller wireless service providers will have supported RTT on their network for at least 18 months. For these reasons, and because by such date, the Commission expects to have data sufficient to assess adoption of RTT technology, the Commission proposes to set a sunset date for RTT-TTY backward compatibility of 2021 unless the Commission finds a reason to extend this deadline. The Commission seeks comment on this proposal, and whether there is a different point in time when it would be appropriate for the Commission to reassess the need for covered entities to continue supporting TTY technology via backward compatibility on their IP-based voice service networks. For example, should the Commission's reassessment be tied in any way to the implementation of the deployment of RTT technology over wireline networks, or should this reassessment take place after the sunset of the public switched telecommunications network (PSTN) and the transition of all consumers to IP-based wireless and wireline networks?

    Requirements for TRS Providers

    5. In document FCC 16-169, the Commission allows wireless service providers to support TRS access through RTT technology, including via 711 abbreviated dialing access, in lieu of supporting TRS through TTY technology. The Commission further clarifies that wireless service providers transmitting such calls may comply with these RTT support requirements by ensuring that such communications are backward compatible with the TTY technology currently used in such call centers. This approach is designed to ensure that RTT users can place and receive TRS calls through state TRS program call centers even when such centers are not equipped to receive RTT calls.

    6. Some forms of TRS are provided over the PSTN, while others are made available via IP networks. In the Notice of Proposed Rulemaking (NPRM), published at 81 FR 33170, May 25, 2016, preceding document FCC 16-169, the Commission sought comment on whether and how it should amend the Commission's TRS rules to authorize or require other forms of TRS to incorporate RTT capabilities into platforms and terminal equipment used with these services.

    7. Comments in the record express a variety of views as to the manner in which RTT should be integrated into TRS operations. The record in this proceeding also contains extensive information about the benefits of RTT. It would appear, therefore, that integrating RTT into TRS operations similarly would benefit text-reliant users, and would fulfill a congressional directive to the Commission to ensure that TRS regulations “encourage . . . the use of existing technology and do not discourage or impair the development of improved technology.” In other words, taking this action will ensure that TRS users are able to benefit from evolving technologies in what will eventually be an all-IP environment.

    8. However, before adopting rules governing the provision of RTT as an integrated component of TRS, the Commission seeks additional comment on the costs, benefits, and technical feasibility of enabling this feature for various forms of TRS, for both TRS providers and TRS users. For example, what changes would be needed in TRS equipment (e.g., hardware, software, or applications) to support RTT between an IP-based TRS user and the communications assistant (CA) or between the parties to the call? Will adoption of an RTT mandate require TRS providers or users to purchase new TRS equipment or updates to TRS equipment software? To what extent will providers have to modify their call routing and handling features?

    9. Additionally, the Commission seeks comment on whether the incorporation of RTT into the provision of TRS operations should be mandated or only allowed. Along these lines, the Commission seeks comment on the appropriate regulatory treatment for RTT in the TRS context. Specifically, given that RTT is a text-based form of communication—as is TTY-based TRS and IP Relay—should this feature be subject to the same regulatory treatment that applies to TTY-based TRS, or would it be more appropriate to consider this akin to IP Relay for purposes of the Commission's TRS rules? For example, should the Commission require RTT-based TRS providers to meet the same mandatory minimum standards as currently applied to TTY-based TRS, such as call release functionality? To what extent should such providers be required to handle emergency calls, and should they adhere to the Commission's rules for TTY-based TRS or IP Relay TRS for this purpose? Are there certain mandatory minimum standards that should not be applicable to RTT technology?

    10. Given that TTY-based TRS is a mandated service for common carriers, if the Commission requires the provision of RTT-TRS, at what point in the future should providers be relieved of their obligations to provide and support TTY-based TRS? Should wireline IP-based voice service providers and equipment manufacturers be required to support RTT before TRS providers are required to support RTT?

    11. At the same time that the Commission recognizes that RTT has the potential to improve TRS for certain RTT users who choose to communicate directly in text with another party, the Commission agrees with commenters that RTT should augment and complement rather than supplant TRS, and seeks comment on this belief. Specifically, the Commission acknowledges that some forms of TRS, such as video relay service and speech-to-speech service, may fulfill the needs of people with disabilities who are not text-reliant users. The Commission therefore believes that the addition of RTT as a TRS option should not diminish the ability of individuals who are reliant on these other forms of TRS to continue having access to those services. The Commission seeks comment on this assumption.

    12. Finally, the Commission seeks input on the mechanisms that are needed to ensure that the provision of RTT-TRS by IP-based providers effectively meets the communication needs of TRS users. Should the Commission require TRS providers to support RTT to enable text-based communication between the CA and the text-reliant user; between the CA and the other party to the call; or between both parties to the call? Are there technical challenges associated with supporting RTT in situations where the parties to the call are connected through an IP-based TRS provider? Should the Commission require IP captioned telephone service (IP CTS) providers to support RTT transmission in any voice channels they provide and in any off-the-shelf equipment provided to IP CTS users? Would the use of conversation windows help an IP CTS user distinguish between a direct RTT communication received from the other party and text generated by an IP CTS relay operator? Are there technical standards the Commission should adopt for the provision of RTT by IP-based TRS providers? The Commission seeks comment specifically on the costs, benefits, and feasibility of requiring IP-based TRS providers to incorporate RTT capability into the provision of their services and on other related matters. Finally, the Commission seeks comment on the appropriate timeline for adopting RTT requirements for IP-based TRS providers.

    13. Impact of RTT on TRS. In the NPRM, the Commission assumed that because RTT will provide greater opportunities for direct, point-to-point text communications and can enable text to be intermixed with voice, it can reduce reliance on relay services to the extent RTT capabilities in end user devices become ubiquitous as a universal text solution. The Commission similarly noted that RTT could enhance the ability of TRS to provide functionally equivalent telephone service for those individuals who continue to rely on TRS as their communication method. AT&T agrees that it is important to review the potential impacts of RTT on TRS, and specifically to assess the need to adjust the TRS Fund supporting these services as this impact becomes clearer. The Commission seeks comment on the best methodology to determine the extent to which RTT reduces reliance on TRS. Additionally, how can the Commission best determine the extent to which the introduction of RTT increases TRS use among some consumers because it enhances the ability of TRS to provide functionally equivalent telephone service? Should any data collected on the effect that RTT has on TRS wait until wireline networks transition from TTY technology to RTT? What other information should the Commission consider in determining whether the availability and use of RTT necessitates changes to the TRS program or its funding?

    Other RTT Features

    14. In the NPRM, the Commission sought comment on whether it is possible to identify certain RTT features or functional capabilities that are necessary to meet the communication needs of individuals who are deaf-blind, people with cognitive disabilities, or other specific segments of the disability community. Some commenters suggest that slowing down an RTT text display is necessary for refreshable Braille displays. They also suggest enabling Braille display users to suspend incoming text when the user is typin